Document qmyzJz12x8BYLrjBp05B2qn9G

Edison Electric INSTITUTE Quintan J. Shea, Ili Vice President, Environment May 21, 2018 Scott Wilson Office of Wastewater Management U.S. Environmental Protection Agency 1200 Pennsylvania Ave, NW Washington, DC 20460 [Submitted electronically via www.regulations.gov] Dear Mr. Wilson: The Edison. Electric Institute (EEI) appreciates the opportunity to submit these comments on the U.S. Environmental Protection Agency's (EPA or Agency) request for input on the Agency's previous statements regarding tire Clean Water Act (CWA or Act) and 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 maybe subject to CWA regulation. See Clean Water Act Coverage o f `Discharges of Pollutants 'via a Direct Hydrologic Connection to Surface Water, 83 Fed. Reg. 7,126'(Feb. 20, 2018). EEI is the association that represents all U.S. investor-owned electric companies. Our members provide electricity for about 220 million Americans, and operate in all 50 states and the District of Columbia. As a whole, the electric power industry supports more than 7 million jobs in communities across the United States. In addition to our U.S. members, EEI has more than 60 international electric companies, with operations in more than 90 countries, as international Members, and hundreds of industry suppliers and related organizations as Associate Members. EEI's members own and operate electric generating units and other facilities that generate, transmit and distribute electricity to residential, governmental, commercial and industrial customers. EEFs members require many federal, state and local permits--including CWA section 402 permits, known as National Pollutant Discharge Elimination System (NPDES) permits... to site and operate their facilities. Driven by a number of factors, including customer demands, technology developments, and federal and state regulatory obligations, the electric sector is undergoing a transition of its generating fleet that will continue over the next decade and beyond. Concurrent with this transition, EEI member companies are investing significant amounts of capital--more than 313 billion dollars in 2017 alone-..to make the energy grid smarter, cleaner, more dynamic, more flexible and more secure to integrate and deliver to customers a balanced Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00001 mix of resources from both central and distributed energy resources. As part of our commitment to this cleaner energy future, EEI and its members are working to develop `'smart communities" to provide customers with innovative solutions and bring the benefits of clean energy resources to communities everywhere. This commitment and the industry's infrastructure investments are additionally beneficial in that they provide domestic job opportunities. Safe, reliable, affordable and clean energy powers the economy, promotes national energy independence and enhances the lives of all Americans. EEI and its members have a substantial interest in the issue presented here, as some members currently are litigating or recently have litigated cases that address whether the NPDES program applies to discharges that migrate through hydro!ogically connected groundwater to reach waters that are jurisdictional under the CWA, Additionally, EEI members could be the target of future citizen suit litigation seeking to expand NPDES requirements to releases to groundwater, e.g., from coal ash impoundments. It would be appropriate for EPA to take this opportunity to clarify that the strict, and potentially criminal, liability of the CWA does not apply to groundwater seepage and other diffuse means of pollutant transport. EEI 's comments focus on why the CWA's text, structure and legislative history, read together, most reasonably support an interpretation that discharges to jurisdictional surface water via hydrologically connected groundwater are not subject to CWA liability. Accordingly, EPA should promptly adopt this reasonable interpretation through notice-and-comment rulemaking. If you or your colleagues have any questions about these comments, please contact either Rich Bozek ( ...... Ex. 6____ ]or rbozekfateei.org) or Riaz Mohammed I Ex. 6 jor mudninnoed@eei.org). i Sincerely. . / J': / /yainlairJ. eci HonvMatthew Leopold, EPA General Counsel Hon. David Ross, Assistant Administrator, EPA Office ofW ater Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00002 COMMENTS OF THE EDISON ELECTRIC INSTITUTE ON CLEAN WATER ACT COVERAGE OF "DISCHARGES OF POLLUTANTS" VIA A DIRECT HYDROLOGIC CONNECTION TO SURFACE WATER, 83 FED. REG. 7,126 (FEB. 20, 2018) DOCKET ID NO. EPA-HQ-OW-2018-0063 May 21, 2018 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00003 I. Introduction and Executive Summary. The Edison Electric Institute (EEI) appreciates the opportunity to submit these comments in response to the U.S. Environmental Protection Agency's (EPA or the Agency) request for comment on the Agency's previous statements regarding 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 subj ect to Clean Water Act (CWA or the Act) regulation. See Clean Water Act Coverage o f 'Discharges o f Pollutants 'via a Direct Hydrologic Connection to Surface Water, 83 Fed. Reg. 7,126 (Feb. 20, 2018). EEI is the association that represents all U.S. investor-owned electric companies. Our members provide electricity for about 220 million Americans, and operate in all 50 states and the District of Columbia. As a whole, the electric power industry supports more than 7 million jobs in communities across the United States. In addition to our U.S. members, EEI has more than 60 international electric companies, with operations in more than 90 countries, as International Members, and hundreds of industry suppliers and related organizations as Associate Members. EEI's members own and operate electric generating units and other facilities that generate, transmit, and distribute electricity to residential, governmental, commercial, and industrial customers. EEI's members require many federal, state, and local permits--including CWA section 402 permits, known as National Pollutant Discharge Elimination System (NPDES) permits--to site their facilities and to conduct their operations. Driven by a number of factors--including customer demands, technology developments, and federal and state regulatory obligations--the electric sector is undergoing a transition of its 1 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00004 generating fleet that will continue over the next decade and beyond. Concurrent with this transition, EEI member companies are investing significant amounts of capital--more than 113 billion dollars in 2017 alone--to make the energy grid smarter, cleaner, more dynamic, more flexible, and more secure in order to integrate and deliver a balanced mix of resources from both central and distributed energy resources to customers. As part of a commitment to this cleaner energy future, EEI and our members are working to develop smart communities in order to provide customers with innovative solutions that can improve our communities and support our ability to bring the benefits of clean energy resources to communities everywhere. This commitment and the industry's infrastructure investments are additionally beneficial in that they provide domestic job opportunities. Safe, reliable, affordable and clean energy powers the economy, promotes national energy independence and enhances the lives of all Americans. EEI and our members have a substantial interest in the issue presented here, as some members currently are litigating or recently have litigated cases that address whether the NPDES program applies to discharges that migrate through hydrologically connected groundwater to reach waters that are jurisdictional under the CWA. Additionally, EEI members could be the target of future citizen suit litigation seeking to expand NPDES requirements to releases to groundwater, e.g., from coal ash impoundments. It is appropriate and necessary for EPA to take this opportunity to clarify that the strict, and potentially criminal, liability of the CWA does not apply to groundwater seepage and other diffuse means of pollutant transport. Such a rulemaking is critical to providing much-needed legal and regulatory certainty to regulators, the regulated community, and the public and to preserve the careful balance between state and federal authority Congress crafted in the CWA. In particular, EPA should move swiftly 2 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00005 to clarify its previous conflicting statements concerning the scope of the NPDES program and whether the CWA covers releases of pollutants to groundwater that is hydrologically connected to jurisdictional surface waters.1*3EEI's comments focus on why the CWA's text, structure, and legislative history, read together, most reasonably support an interpretation that discharges to jurisdictional surface water via hydrologically connected groundwater are not subject to CWA liability. Reading the statute as a whole allows EPA to preserve key CWA distinctions between both point source discharges and nonpoint source pollution--and between groundwater and navigable waters--in a manner that preserves the careful balance Congress established in the Act. Further, since such "discharges" are subject to other federal and state regulatory requirements, those requirements act as strong additional evidence that confirm the appropriateness of such an interpretation. Moreover, significant practical considerations weigh in favor of adopting an interpretation of the CWA that the NPDES program does not cover discharges via groundwater. If adopted, the "direct hydrologic connection" theory would leave most individuals and businesses with no real way of knowing whether their conduct requires an NPDES permit, and if so, what the requirements of that permitting program might be. It would be appropriate for the Agency to promptly adopt this reasonable interpretation through notice-and-comment rulemaking. 1Federal district and appellate courts have conflicting opinions regarding whether the NPDES program should apply to releases to groundwater; these opinions have resulted in a great deal of confusion and uncertainty for EPA, state water quality agencies, the regulated community and the public. These impacts are discussed, infra. Numerous entities have noted in the many cases pending in both district courts and courts of appeals that the CWA unambiguously compels the conclusion that the NPDES program does not extend to discharges via hydrologically connected groundwater. 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00006 II. EPA Should Clarify that the CWA Does Not Require NPDES Permits for Releases of Pollutants via Groundwater. As EPA's request for comments explains, federal courts have struggled for decades with whether the CWA regulates the release of pollutants from a point source to groundwater, which ultimately reach jurisdictional surface waters via groundwater migration. See 83 Fed. Reg. at 7,127-28. Those courts have reached conflicting interpretations of the CWA, depending on what aspects of the statute they emphasized and what weight, if any, they gave to certain EPA statements on this issue. Amidst this confusion, at least one thing is clear: EPA has never conducted a rulemaking--or provided guidance-- as to whether NPDES permits are required for discharges via hydrologically connected groundwater. Fortunately, EPA now has the opportunity to provide much needed clarity. EPA should definitively conclude that, read as a whole, the text, structure, and history of the CWA support the interpretation that discharges via groundwater migration do not require NPDES permits. A. The CWA's Text and Structure Support the Conclusion That NPDES Permits Are Not Required for Discharges via Groundwater. The CWA prohibits "the discharge of a pollutant" except where an enumerated exception applies. 33 U.S.C. 1311(a). The most prominent exception is for "the discharge of any pollutant" authorized by an NPDES permit. See id. 1342(a)(1). The Act defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." Id. 1362(12). "Point source," in turn, means "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged." Id. 1362(14). The Act plainly distinguishes between point source discharges and nonpoint source pollution. Nonpoint source pollution is neither defined in the Act nor mentioned anywhere in CWA section 402. By definition, nonpoint source pollution is not subject to NPDES permitting, because a 4 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00007 "discharge of a pollutant" can only occur "from any point source." See id. 1342(a)(1), 1362(12); see also Ecological Rights Found, v. Pac. Gas & Flee. Co., 713 F.3d 502 (9th Cir. 2013) ("NPDES permits are required for discharges from any `point source,' but not for discharges from `nonpoint sources.'"). Congress instead left it to the states to control nonpoint source pollution under other provisions of the CWA. See 33 U.S.C. 1288(b)(2), 1314(f), 1329; see also Appalachian Power Co. v. Train, 545 F.2d 1351, 1373 (4th Cir. 1976) ("Congress consciously distinguished between point source and nonpoint source discharges, giving EPA authority under the Act to regulate only the former."). Congress drew this important distinction while expressly recognizing that the states retain primary responsibility over the development and use of land and water resources. See 33 U.S.C. 1251(b). Just as important as the Act's distinction between point and nonpoint sources is the distinction between "navigable waters" and "ground waters." As noted above, the Act's NPDES program applies only to discharges "to navigable waters from any point source." 33 U.S.C. 1362(12) (emphasis added). There is no mention of "ground waters" in either the definitions of "discharge of a pollutant" or "point source." See id. 1362(12), (14). Nor is there any reference to "ground waters" anywhere in CWA section 402. See id. 1342. Like nonpoint source pollution control, Congress left the regulation of groundwater to states. See Rice v. Harken Expl. Co., 250 F.3d 264, 271-72 (5th Cir. 2001) ("Congress was aware that there was a connection between ground and surface waters" but nevertheless decided "to leave the regulation of groundwater to the States."). Several provisions of the statute indicate that Congress did not intend for discharges via groundwater migration to be subject to NPDES permitting. Congress knew that both point source 5 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00008 discharges and nonpoint source pollution could impact surface water quality, but it nevertheless purposefully decided to address those sources differently, requiring NPDES permits only for point source discharges to navigable waters. Section 301(b) of the CWA illuminates the point by making effluent limitations the principal mechanism in NPDES permits for controlling discharges of pollutants, and effluent limitations are integral to the overall NPDES scheme. See 33 U.S.C. 1311. Elowever, effluent limitations cannot be straightforwardly, practically or evenly applied to discharges into groundwater; by definition, they apply only to discharges "into navigable waters." Id. 1362(11). Thus, if discharges to groundwater were subject to NPDES requirements, the statute would make no sense, because the primary means of controlling pollutants under the NPDES program--the effluent limitation--would not apply to those discharges. EPA must avoid constructions of the statute that lead to such illogical outcomes. Section 304(f) further illustrates that Congress did not mean for discharges via groundwater migration to be regulated under the NPDES scheme. Section 304 expressly directs EPA to issue "guidelines for identifying and evaluating the nature and extent of nonpoint sources of pollutants" and "processes, procedures, and methods to control pollution" from things like "the disposal of pollutants in wells or in subsurface excavations." 33 U.S.C. 13 14(f); N at'l Wildlife F ed'n v. Consumers Power Co., 862 F.2d 580, 587 (6th Cir. 1988) (noting that "Congress apparently intended that pollution problems caused by" facilities described in 1314(f) "are generally to be regulated by means other than the NPDES permit program"). Likewise, in section 208 of the CWA, Congress required states to develop area-wide waste treatment management plans that include "a process to control the disposal of pollutants on land or in subsurface excavations within such area to protect ground and surface water quality." 33 6 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00009 U.S.C. 1288(b)(2)(K). CWA section 208 and, later, section 319--which empowers the States to improve control of nonpoint sources affecting attainment of applicable water quality standards-- "were designated by Congress as methods to keep states accountable for identifying and tracking nonpoint sources of pollution, as well as identifying `the best management practices and measures' to reduce such pollution." Or. Nat. Desert Ass 'n. v. US. Forest Serv., 550 F.3d 778, 785 (9th Cir. 2008). Last, Congress knew exactly how to differentiate between "navigable waters" and "ground waters" in the CWA, which is precisely what it did in sections 102 and 104 of the Act. See 33 U.S.C. 1252(a) (referencing "navigable waters and ground waters"); id. 1254(a)(5) (same). In numerous other parts of the Act, Congress referred to "ground waters" or "underground waters." E.g.,id. 1256(e)(1), 1274(a)(4), 1282(b)(2), 1291(b), 1314(a)(l)-(2), 1329(b)(2)(A), 1329(h)(5)(D), 1329(i)(l). The omission of either of those terms from the key provisions relevant to the NPDES program, see 33 U.S.C. 1342, 1362(12), (14), is strong contextual evidence that Congress did not intend for pollutants released via groundwater migration to be subject to the NPDES program. In examining the statute as a whole, EPA must take care to preserve the Act's distinction between point and nonpoint sources, which is an "organizational paradigm of the [CWA]." Or. Nat. Desert Ass 550 F.3d at 780. EPA also should focus on the Act's distinction between navigable waters and ground waters. The obvious way to do so is for EPA to focus on how pollutants reach navigable waters. B. Numerous Courts Have Held Conflicting Interpretations Regarding the Applicability of the NPDES Permit Program. 7 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00010 It bears emphasizing that the Supreme Court has never squarely addressed this issue. Contrary to what some citizen groups have argued in recent cases, the plurality in Rapanos v. United States, 547 U.S. 715 (2006), did not hold that the CWA unambiguously requires NPDES permits for indirect discharges that reach jurisdictional waters diffusely. Far from it. The Rapanos plurality's discussion of indirect discharges to "waters of the United States" (WOTUS) was on its face dictum that did not "decide th[e] issue." Id. at 743. Moreover, that opinion simply recounted how some courts have held that pollutants that originate from point sources are subject to the NPDES program even if they pass through intervening tunnels, culverts, storm drains, sewer pipes, and channels--features that are themselves point sources. Thus, the Court cited United States v. Velsicol Chemical Corp., 438 F. Supp. 945, 946-47 (W.D. Tenn. 1976), a case where the alleged point source and the covered navigable waters were separated by an intervening structure--a municipal sewer system. The Rapanos plurality also cited Sierra Club v. El Paso GoldMines, Inc., 421 F.3d 1133, 1137, 1141 (10th Cir. 2005), a case where a long tunnel separated the point source and the navigable waters. In Velsicol and El Paso GoldMines, the pollutants that originated from a point source ultimately reached jurisdictional waters through other features that also fit the definition of "point source." Those sorts of discharges are readily distinguishable from discharges from point sources that only reach jurisdictional waters by diffuse movement. Read in context, therefore, the plurality's statement about the Act forbidding the "addition ...to navigable waters" and not "addition ... directly to navigable waters" is best understood as explaining that the point source that originated the pollutants need not discharge directly to navigable waters if the pollutants pass through another point source in the interim. The context of the Court's statement is clear; In fact, many courts have held that such upstream, intermittently flowing channels themselves constitute "point sources" under the Act. The definition of "point source" includes "any pipe, ditch, channel, tunnel, 8 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00011 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). We have held that the Act "makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to `navigable waters.'" South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U S. 95, 105, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). See 547 U.S. at 743. More to the point, federal appellate courts are split on whether releases of pollutants from point sources to groundwater are subject to NPDES program when there is a direct hydrologic connection between the groundwater and jurisdictional surface waters. Through conflicting decisions, the appeals courts have found the CWA capable of supporting either interpretation. While the Fifth and Seventh Circuits have concluded that the NPDES program does not extend to pollutants that reach groundwater in certain circumstances, the Fourth and Ninth Circuits have concluded that, in fact, these discharges fall within the scope of the program.2*9 EPA should address the widespread confusion that these conflicting judicial opinions have created. In so doing, EPA must look to the statute as a whole to discern whether Congress intended for discharges via groundwater migration to require NPDES permits. See Star Athletica, 2 Four distinct case examples illustrate this point. On the one hand, 177/. o f Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994), held that the NPDES program does not encompass pollutants "seep[ingj" into "local ground waters" even though the Court was aware of the possibility that those pollutants might reach "underground aquifers that feed lakes and streams that are part of the `waters of the United States'" And Rice, 250 F.3d at 271, found that it would be "an unwarranted expansion of the [statute]" to extend point source requirements to pollution that reaches j urisdictional waters by "gradual, natural seepage" through groundwater. On the other hand, County o fMaui, 886 F.3d at 749, imposed liability for discharges via groundwater based on "fairly traceable" standard. And Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17-1640, 2018 WL 1748154, at *9 (4th Cir. Apr. 12, 2018), concluded that "[A]n 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." 9 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00012 L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017) ("Interpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning.") (brackets omitted); Nat. Res. Def. Council v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001) (explaining that "when determining which reasonable meaning should prevail, the text should be placed in the context of the entire statutory structure" and that "absurd results are to be avoided and internal inconsistencies in the statute must be dealt with"). As the Supreme Court has explained, the CWA "makes plain" that a point source must "convey the pollutant to `navigable waters'" to be subject to NPDES permitting. S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe o fIndians, 541 U.S. 95, 105 (2004). The point source "need not be the original source of the pollutant," but it does "need [to] convey the pollutant to `navigable waters.'" Id. (emphasis added). Requiring that a pollutant be conveyed to and added to a navigable water by a point source--as opposed to merely having been released from some point source sometime before reaching the navigable water--prevents the NPDES program from expanding its reach to encompass all nonpoint sources. An alternative approach, one that ignores how pollutants reach jurisdictional waters, would conceivably allow vast swaths of nonpoint source pollution to be reformulated as point source discharges and consequently swept into the NPDES program. It also disregards Congress's intent to leave groundwater outside the scope of NPDES program. As one court recently observed, "any non-point-source pollution ... could invariably be reformulated as point-source pollution by going up the causal chain to identify the initial point sources to come to rest in navigable waters. 26 Crown Assocs., LLC v. Greater New Haven Reg 7 Water Pollution Control Auth., No. 15-cv1439, 2017 WL 2960506, at *8 (D. Conn. July 11, 2017), appeal docketed. No. 17-2426 (2d Cir. 10 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00013 Aug. 4, 2017). The way to preserve Congress's "clear and precise distinction between point sources ... and nonpoint sources," S. Rep. No. 95-370, at 8 (1977), is by limiting the NPDES program to pollutants that reach and are added to navigable waters by a discernible, confined, and discrete conveyance. See Metacon Gun Club, 575 F.3d at 224. C. EPA Should Specifically Reject the Direct Hydrologic Connection Theory, The "direct hydrologic connection" theory that EPA has occasionally endorsed subverts Congress's distinction between point and nonpoint sources and between navigable and ground waters, so EPA should reconsider and definitively reject it. In fact, the Act does not even mention the term "direct hydrologic connection," which is more commonly employed by courts "attempting to mitigate" the expansive and unpredictable consequences of holding that releases through groundwater might be subject to NPDES permitting.3Furthermore, trying to apply the "direct hydrologic connection" theory raises a host of practical questions. What exactly counts as a "hydrologic connection"? How "direct" must the connection be for the pollutants to come within the NPDES program? How would effluent limits be developed or compliance be determined? The Act does not answer these questions. Because the "direct hydrologic connection" requirement has no foundation in the text or history of the CWA, its contours are malleable and subject to all manner of distortion.4 It invites precisely the type of expansive reading that would eviscerate the distinction between point and nonpoint sources. 3See Ky. Waterways All. v. Ky. Utils. Co., No. 5:17-CV-292, 2017 WL 6628917, at *11 n.3 (E D. Ky. Dec. 28, 2017), describing application of the "direct hydrologic connection" theory by the court in Tennessee Clean Water Network v. Tennessee Valley Authority, 273 F. Supp. 3d 775, 827 (M.D. Tenn. 2017). 4See id. \ see, e.g., McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1196 (E D. Cal. 1998), vacated on other grounds, McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir. 1995) , finding that discharges to groundwater are subject to CWA regulation if "the groundwater is naturally connected to surface waters" (emphasis added); Ass 'n Concerned Over Res. & Nature, Inc. v. Tenn. Aluminum Processors, Inc., No. 1:10-cv-84, 2011 WL 1357690, at *17 (M.D. Tenn. Apr. 11, 2011) , finding that "[Gjroundwater is subject to the 11 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00014 Reconsidering and rejecting the "direct hydrologic connection" theory will not require a wholesale reversal of any longstanding EPA position. To be sure, EPA has raised the direct hydrologic connection theory in various contexts, see 83 Fed. Reg. at 7,127 (listing examples), including in an amicus brief in the recent County o fMaui litigation, see Doc. # 40, Brief for the United States as Amicus Curiae in Support of Plaintiffs-Appellees, Haw. Wildlife Fund v. County o fMaui, No. 15-17447 (9th Cir., filed May 31, 2016). But none of those examples acknowledges the numerous contrary statements EPA has made about the scope of the NPDES program. To illustrate: A 1973 memorandum from the Office of General Counsel asserts that "[discharges into ground waters are not included" within the scope of the statutory term "discharge of a pollutant." In re E.I. DuPont de Nemours & Co., Op. No. 6, 1975 WL 23850, at *3 (E.P.A.G.C. Apr. 8, 1975). A 1992 EPA guidance document notes that "EPA and the States regulate facilities [under the CWA] that either discharge wastewaters directly to surface waters or discharge to municipal treatment systems." EPA, Final Comprehensive State Ground Water Protection Program Guidance, at 1-27 (Dec. 1992). In a 2005 permit proceeding, EPA noted that discharges "could be re-directed to a non-surface water discharge location, such as ground injection" and that "NPDES requirements would not apply, because there would be no direct discharge to a surface water of the United States." EPA, RTC Holyoke Gas & Electric Department Cabot Street Station, Permit No. MA0001520, at 20 (Aug. 9, 2005). In the 2011 Pesticide General Permit proceeding, EPA responded to comments about potential groundwater impacts by stating that "discharges to groundwater CWA provided there is an impact onfederal waters." (emphasis added); Ohio Valley Envtl. Coal. Inc. v. Pocahontas Land Corp., No. 3:14-1133, 2015 WL 2144905, at *8 (S.D. W. Ya. May 7, 2015), stating that "Defendant may be required to seek an NPDES permit even if groundwater is somehow hydrologically connected ...to surface waters." (emphasis added); Tenn. Clean Water Network, 273 F. Supp. 3d at 827, noting that releases into groundwater are subject to NPDES requirements "if the hydrologic connection between the source of the pollutants and navigable waters is direct, immediate, and can generally be traced' (emphasis added). 12 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00015 are not regulated under the NPDES program." EPA RTC, NPDES Pesticide General Permit (Oct. 31, 2011). In a 2014 Small Municipal Separate Storm Sewer System permit proceeding, EPA stated in a fact sheet that "NPDES permits are applicable for point source discharges to waters of the U.S." and that "discharges to groundwater are not addressed in the NPDES program and as such as not addressed by this permit." EPA, Fact Sheet, Draft General Permits for Stormwater Discharges from Small Municipal Separate Sewer Systems in Massachusetts, at 18 (Sept. 30, 2014). In a 2017 permit proceeding related to remediation activity in Massachusetts and New Hampshire, EPA said "discharges to groundwater are not regulated by the NPDES program." EPA, Response to Public Comments, Permit Nos. MAG910000 and NHG910000, at 7 (Mar. 9, 2017). The inconsistency between prior EPA statements on this issue warrants clarification. EPA should take the time to reconsider the statute's text, structure, history, and purpose, taking into account case law and practical considerations, and arrive at a definitive position rejecting the direct hydrological connection theory. D. The CWA's Legislative History Further Shows that Congress Did Not Intend to Subject Discharges via Groundwater to the NPDES Program. The legislative history of the CWA also supports a conclusion that Congress did not want to subject discharges via groundwater migration to NPDES permitting. For one thing, it shows that Congress was aware that pollutants might reach jurisdictional waters as a result of subsurface disposal, yet it still opted to keep states and local governments responsible for controlling such pollution under nonpoint source programs. Prior to passage of the 1972 Act, EPA sought authority from Congress to "control [] all sources of pollution, be they discharged directly into any stream or through the ground water table." Water Pollution Control Legislation-1971 (Proposed Amendments to Existing Legislation): Hearings before the H. Comm. On Pub. Works, 92nd Cong. 230 (1971) (statement of William Ruckelshaus, Administrator, EPA). Similarly, an amendment offered by Congressman Leslie Aspin sought to bring groundwater within the CWA's permitting and enforcement provisions, on the premise that "if [Congress did] not stop 13 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00016 pollution of ground waters through seepage and other means, ground water gets into navigable waters, and to control only navigable water and not the ground water makes no sense at all." See 118 Cong. Rec. 10,666, 10,669 (1972) (statement of Rep. Aspin). Congress ultimately rejected the Aspin Amendment and EPA's request for control over groundwater sources, along with other proposals to extend federal regulatory authority to groundwater, "[bjecause the jurisdiction regarding groundwaters is so complex and varied from State to State[.]" S. Rep. No. 92-414, at 73 (1971). Again, it is no secret that "Congress was aware that there was a connection between ground and surface waters," but nevertheless chose "to leave the regulation of groundwater to the States." Rice, 250 F.3d at 271-72. When Congress wanted to address subsurface pollution in the CWA, it did so expressly. Thus, section 304(f) of the Act specifically mentions dealing with water pollution that ultimately results from disposal in subsurface excavations. See 33 U.S.C. 1314(f). In explaining that section 304 of the Act was intended to address subsurface pollution, the House Committee Report described how EPA should provide technical guidance to states for their nonpoint source programs: This section and the information on such nonpoint sources is among the most important in the 1972 Amendments. ... The Committee, therefore, expects the Administrator to be most diligent in gathering and distribution of the guidelines for the identification of nonpoint sources, and the information on processes, procedures, and methods for control of pollutionfrom such nonpoint sources as ... the disposal o fpollutants in wells or other subsurface excavations[.\ H R. Rep. No. 92-911, at 109 (1972) (emphasis added). Similarly, the Senate Report explained that, under CWA section 304(f), EPA must provide information that "may range from provisions for evaluating geological characteristics of disposal sites to the costs and benefits of alternative 14 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00017 methods of disposal " S. Rep. 92-414, at 53. Congress acknowledged the risk of "groundwater contamination" at "shallower disposal sites," which is why it directed EPA to outline provisions "to control leaching of materials from such sites, which include land-fill sites as well as abandoned mines." Id. But nowhere did Congress declare that those sites ought to be subj ect to NPDES permit requirements. The legislative history for section 208(b)(2) of the Act provides comparable support that NPDES requirements were never intended to address activities like disposal of pollutants on land or in subsurface excavations. A senate report discussing that CWA section 208 notes that, "Section 208, the 1972 act's laboratory for new institutional control mechanisms for vexing nonpoint source problems ... may not be adequate." S. Rep. No. 95-370, at 10. Congress also understood that states might resist developing protective control measures, speculating that it "may be that sometime in the future a Federal presence can be justified and afforded." Id. Congress nevertheless concluded that "it is both necessary and appropriate to make a distinction as to the kinds of activities that are to be regulated by the Federal Government and the kinds of activities which are to be subject to some measure of local control" under section 208. Id. The "direct hydrologic connection" theory, or any similar theory for imposing NPDES requirements on discharges via groundwater migration, erases that distinction. If Congress had wanted the NPDES program to apply more broadly, such that it would cover releases via groundwater migration, it could simply have said so. And yet, Congress never did. As the D C. Circuit recognized decades ago: [I]t does not appear that Congress wanted to apply the NPDES system wherever feasible. Had it wanted to do so, it could easily have chosen suitable language, e.g., 15 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00018 "all pollution released through a point source." Instead, as we have seen, the NPDES system was limited to "addition" of "pollutants" "from" a point source. N at'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 176 (D C. Cir. 1982). That Congress did not use language that would have extended the NPDES program to groundwater discharges is further proof that Congress did not intend for such discharges to come within the program's ambit. See Murphy v. Smith, 138 S. Ct. 784, 789 (2018) (inferring statute's meaning based on alternative language that Congress could have used but ultimately did not). E. Well-Known Principles of Statutory Interpretation Resolve any Doubt that the CWA's NPDES Requirements Do Not Apply to Discharges via Groundwater. Any doubt about whether the CWA's text, structure, and purpose support the conclusion that Congress did not intend to regulate discharges via groundwater migration under the NPDES program should be resolved against applying NPDES requirements. Such a conclusion would be in keeping with numerous canons of statutory interpretation. 1. Clear Statement Rules Argue Against NPDES Requirements Applying to Discharges to Groundwater. Chief among these canons are a pair of clear statement rules. These rules typically require a clear statement on a statute's face to rebut a well-established policy presumption. One well-known clear statement rule provides that, "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." United States v. Bass, 404 U.S. 336, 349 (1971); see Gregory v. Ashcroft, 501 U.S. 452, 560-61 (1991) ("If congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute."). The Supreme Court has applied this clear statement rule in construing the meaning of the CWA. See Solid Waste Agency o f N. Cook Cty. v. U.S. Army Corps ofE ng'rs, 531 U.S. 159, 173-74 (2001). Sierra Club v. EPA 18cv3472 NDCA 16 Tier 2 ED 002061 00159776-00019 EPA has a specific duty to preserve the federal-state balance in administering the CWA because Congress expressly declared its "policy ...to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use ... of land and water resources." 33 U.S.C. 1251(b). Far from offering a "clear statement" sufficient to strip states of their traditional authority over nonpoint source control and groundwater resources, the CWA recognizes that the federal and state governments have distinct roles to play, with states playing the lead role as to nonpoint source pollution and regulation of groundwater. See PUD No. 1 v. Wash. Dep 't o fEcology, 511 US. 700, 704 (1994). In particular, nonpoint source control most often implicates land use controls, which is why Congress elected to leave such responsibility to state and local governments, "the level[s] of government closest to the sources of the problem." S. Rep. No. 95-370, at 9. Congress thus drew a "clean and precise distinction between point sources, which [are] subject to direct Federal regulation, and nonpoint sources, control of which was specifically reserved to State and local govemments[.]", Id. at 8. Nothing about that statement suggests that the federal government should be responsible for regulating discharges via groundwater under the CWA. The second clear statement rule implicated here provides that, where a statutory interpretation would lead to an unprecedented and extraordinary expansion of federal regulatory authority, the statute's text must clearly indicate that Congress intended such a result. See Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014) (UARG). Unsurprisingly, the Supreme Court has "been reluctant to read into ambiguous statutory text" the "power to require permits for ... thousands ... [or] millions of small sources nationwide." Id. The Court has also said the fact that an interpretation of ambiguous statutory text places "plainly excessive demands on limited governmental resources is alone a good reason for rejecting it." Id. Congress "must speak 17 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00020 clearly if it wishes to assign to an Agency decision of vast `economic and political significance.'" Id. (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). By both (or either) of those measures, EPA ought to authoritatively reject the "direct hydrological connection" theory. Regulation of discharges via groundwater migration would exponentially expand the scope of the NPDES program without a clear statement from Congress that this is what it intended. For instance, over 22.2 million homes have septic systems.5 To date, almost none of those septic systems has required an NPDES permit because, with very narrow exceptions,6they are considered nonpoint sources. See, e.g.. United States v. Smithfleld Foods, Inc., 972 F. Supp. 338, 345 (E D. Ya. 1997) (referring to septic systems as nonpoint sources). But because many of those systems collect wastewater and disperse it into soil and groundwater, which might at some point reach navigable waters, the "direct hydrological connection" theory could subject millions of septic systems to NPDES requirements for the first time ever. Such an expansion of the NPDES permitting system would be unworkable for both homeowners and regulators, requiring a significant outlay of resources to permit the millions of septic systems for limited environmental protection that is not already provided by other state and federal programs. 5See U.S. Dep't of Housing & Urban Devel. & U.S. Census Bureau, American Housing Survey for the United States: 2011, Current Housing Reports, H150/11, at 14 Tbl. C-04-AO (Sept. 2013), available at https://www.census.gov/content/dam/Census/programssurveys/ahs/data/2011/h 150-1 l.pdf. 6To be sure, if pollutants from septic tanks reach navigable waters via a discernible, confined, and discrete conveyance, they would be point source discharges. See, United States v. Lucas, 516 F.3d 316, 332 n.43 (5th Cir. 2008) (installation of "septic systems directly in wetlands that are waters of the United States, thus ma[de] a system that is typically a diffuse, non-point source into a point source"); see also id. at 333-34 (collecting cases holding that pollutants conveyed from septic systems to navigable waters via pipes were point source discharges). 18 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00021 Similarly, numerous industries, not just power generation, rely on impoundments--including stormwater ponds, farm ponds, surface impoundments, cooling ponds, and water supply reservoirs--that could release pollutants to groundwater. Many of these structures and facilities do not currently require NPDES permits. For those that do, the permits focus primarily on regulating pollutants that reach jurisdictional surface waters through a discernible, confined, discrete conveyance, rather than through passive and diffuse groundwater migration. Under the "direct hydrological connection" theory, however, owners and operators of those impoundments often would have to seek new or modified permits and identify additional discharge points. The "direct hydrological connection" theory could also pull into the NPDES program a host of public and private water and pollution control and treatment infrastructure projects specifically designed to protect and preserve water resources. Groundwater recharge systems use spreading basins, percolation ponds, infiltration basins, and injection wells, among other technologies and structures, to convey stormwater or recycled wastewater into subsurface aquifers. These systems provide a host of ecological benefits: they augment public water supplies, create seawater intrusion barriers, and eliminate surface outfalls.7 Green infrastructure also advances some of the same aims as the CWA by absorbing and infiltrating stormwater into the ground to minimize discharges of industrial and municipal stormwater; EPA even promotes green infrastructure and other infiltration practices to control for certain types of pollution.8The "direct hydrological 1See US. EPA, 2012 Guidelinesfor Water Reuse, at 4-25 (Sept. 2012), https://cfpub.epa.gov/si/si public record report.cfm?dirEntryId=253411. 8See US. EPA, Benefits o f Green Infrastructure, https://www.epa.gov/green~ infrastructure/benefits-green-infrastructure, and U.S. EPA, National Management Measures to Control Nonpoint Source Pollutionfrom Urban Areas 5-9, 5-10 (2005), https://www.epa.gov/nps/urban-runoff-national-management-measures. 19 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00022 connection" theory could subject many of these systems to NPDES permitting whenever the water (and any pollutants in it) that they collect or disperse ultimately migrates with the groundwater to navigable waters--which, thanks to the hydrologic cycle, much groundwater does. That would discourage these features' use, which would result in harm to the environment of precisely the kind Congress intended to prevent when it promulgated the CWA. For all of these reasons, the "direct hydrological connection" theory would cause the NPDES program to balloon exponentially. And yet, nothing in section 402 (or any other part of the Act) reflects the slightest intent to extend the NPDES program beyond traditional industrial and municipal end-of-pipe discharges, to reach things like well disposal and subsurface excavations that are already covered as nonpoint sources under CWA section 304(f). Absent a clear statement from Congress, the CWA should not be interpreted to embrace an approach--like the "direct hydrological connection" theory--that would impose such sweeping, new demands on thousands or even millions of people and business across the country. 2. Other Canons of Interpretation Also Lead to the Conclusion That NPDES Requirements Should Not Apply to Discharges to Groundwater. Other interpretive canons compel the same conclusion as do the clear statement rules detailed above, but for reasons having to do with the uncertainty inherent in extending NPDES permitting to groundwater releases. For instance, because the "direct hydrological connection" theory does not come with any inherent or text-based geographic or temporal limitations, it could require an NPDES permit for any release of pollutants into the ground so long as the pollutants might somehow, someday, somewhere, make their way into navigable waters. Groundwater systems are complex, and it will often be difficult or impossible to ascertain whether pollutants released from point sources are likely to reach navigable waters through groundwater. Pollutants in 20 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00023 groundwater will sometimes migrate to navigable waters via someone else's land--or many others' lands--in which case the person responsible for releasing the pollutants might be unable to track or control their movements. The owner or operator of a point source might be unable to conduct the sampling or monitoring at the point where pollutants reach jurisdictional waters because those locations may be miles away or beyond the owner or operator's control--further, the point where pollutants reach jurisdictional waters might not be stable, and can migrate with rainfall and other land use patterns. And when those pollutants finally arrive at navigable waters after migrating through groundwater, they will likely contain pollutants from other sources, so that it will be exceedingly difficult to tell which pollutants came from which source. Such a scenario is untenable for regulated industries, regulators, and land owners. In many cases, the only way to tell whether a particular source is releasing pollutants into groundwater, or whether certain pollutants in navigable waters ultimately come from that source, will be to conduct incredibly detailed and intricate hydrologic studies. Those studies are timeconsuming, often requiring months or years to complete, depending on the complexity of the terrain, flow and migration patterns (if any). And they are expensive, usually costing several thousand dollars, even in relatively simple cases. Even for people who can afford them, such studies do not always yield conclusive and reliable results, not least of all because it is not always possible to determine where groundwater releases into a navigable water. See infra Part IV. The upshot is that subjecting groundwater releases to NPDES permitting requirements will often leave people and businesses in the dark about whether and how those requirements apply to them. When a proffered interpretation of a statute would leave ordinary people unable to discern 21 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00024 whether their intended course of conduct exposes them to liability under that statute, the interpretation offends due process. See Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) ("Living under a rule of law entails various suppositions, one of which is that [all persons] are entitled to be informed as to what the State commands or forbids."). Such an interpretation ought to be avoided when an alternative, reasonable one exists that does not raise similar constitutional difficulties. See Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (explaining canon of constitutional avoidance). The unworkable interpretation should be especially avoided when, as here, it would only further muddy the waters about the reach of a statute with a "notoriously unclear" geographic scope. Sackett v. EPA, 566 U.S. 120, 132-33 (2012) (Alito, J., concurring); see also U.S. Army Corps o fEngr's v. Hawkes Co., 136 S. Ct. 1807, 1816 (2016) (Kennedy, J., concurring).9 It is manifestly unreasonable to inject into the CWA this additional "level of uncertainty ... [that] would expose potentially [millions] o f ... [sources] to ... litigation and legal liability if they [or regulators] happen[] to make the `wrong' choice." Umatilla Waterquality Protective Ass 'n, Inc. v. Smith Frozen Foods, 962 F. Supp. 1312, 1320 (D. Or. 1997). Yet that is exactly what would happen under practically any theory applying the NPDES program to releases to or from groundwater. The notice and fair-warning problems inherent in the "direct hydrological connection" theory are particularly a concern because violators of the CWA face stiff criminal liability. "Knowing" violations of the Act are punishable by up to $100,000 per violation per day and six years' imprisonment, while "negligent" violations can lead to fines of up to $50,000 per violation per 9 Lamenting Congress's and EPA's failure to resolve the "critical ambiguity" in the "precise reach of the Act," and highlighting concerns about "the reach and systemic consequences of the Clean Water Act," respectively. 22 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00025 day and two years' imprisonment. 33 U.S.C. 1319(c).10Because the CWA has criminal applications, it must be construed in accordance with the rule of lenity. See Kasten v. SaintGobain Performance Plastics Corp., 563 U.S. 1, 16 (2011). Under lenity, statutory ambiguities should be resolved in regulated entities' favor. See id.; see also United States v. Plaza Health Labs., Inc., 3 F.3d 643, 649 (2d Cir. 1993) (construing "point source" in accordance with rule of lenity). That is, unless the CWA's "text, structure, and history" demonstrate that applying the NPDES program to discharges via groundwater migration is "unambiguously correct," lenity demands that the government treat the discharges as not being subj ect to the program. See United States v. Granderson, 511 U.S. 39, 54 (1994). The "direct hydrologic connection" theory is far from "unambiguously correct." As explained above, these well-established principles of statutory construction weigh in favor of the same conclusion that the CWA's text, structure, and history support: that the NPDES program does not encompass discharges via hydrologically connected groundwater. III. Releases to Groundwater and any Subsequent Surface Water Impacts are Appropriately Addressed by Other Federal Authorities and State Laws, Which Lends Further Support to the Reasonableness of an Interpretation Excluding Discharges via Groundwater from the NPDES Program. There is no shortage of federal and state laws aimed at addressing impacts from groundwater pollution. The existence of these numerous other federal regulatory programs and state authorities "further supports the reasonableness" of an EPA interpretation that CWA regulations do not regulate discharges via groundwater that eventually reach jurisdictional surface waters. 10 The CWA also provides for civil penalties in enforcement actions by EPA or private citizens, which can be up to $52,414 per violation. 33 U.S.C. 1319(d), 1365(a); see also 82 Fed. Reg. 3,633, 3,636 (Jan. 12, 2017) (inflation adjustment ratio). 23 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00026 See CatskillMountains Chapter o f Trout Unlimited v. EPA, 846 F.3d at 529-30 (2d Cir. 2017) {Catskill III) ("Yet another consideration supporting the reasonableness of the Water Transfers Rule is that several alternatives could regulate pollution in water transfers even in the absence of an NPDES permitting scheme[.]"). Disposals of pollutants in wells and subsurface excavations are addressed under state CWA nonpoint source programs. See, Part II.A, supra. CWA section 319 grant programs, for example, have successfully addressed pollution from impoundments associated with legacy mining operations, wastewater treatment units, and a host of other features affecting groundwater quality.11 Indeed, section 319 expressly requires States to identify best management practices for controlling pollution from nonpoint sources, "taking into account the impact of the practice on groundwater quality." 33 U.S.C. 1329(b)(2)(A). A. The Resource Conservation and Recovery Act and the Coal Combustion Residuals Rule Address Groundwater. The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 et seq., directly regulates groundwater, including ash management features commonly used in the electric utility industry. "RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996). Of particular relevance here, RCRA's Coal Combustion Residuals (CCR) Rule, 80 Fed. Reg. 21,302 (Apr. 17, 2015), provides a comprehensive groundwater monitoring and corrective action 11 See, e.g., EPA, Installing Best Management Practices Abates Acid Mine Drainage in Crab Orchard Creek, EPA 841-F-14-001DD (May 2014), https://www.epa.gov/sites/production/files/2016-12/documents/tn crab orchard2016 508.pdf; see generally EPA, Nonpoint Source Success Stories, https://www.epa.gov/nps/nonpoint~sourcesuccess-stories (last visited Apr. 26, 2018) (listing dozens of remediation projects, many involving subsurface releases, that have used section 319 funds). 24 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00027 scheme aimed at CCR impoundments and landfills. EPA designed the rule to ensure "no reasonable probability of adverse effects on health or the environment" from disposal of coal ash. Id. at 21,311. The rule achieves that goal by imposing robust requirements for groundwater monitoring and remediation. For instance, the rule requires monitoring for specific constituents found in coal ash. See 40 C.F.R. pt. 257, Appendices III & IV. If a facility detects contamination above background levels, it must conduct additional monitoring to determine whether contaminants exceed the rule's rigid groundwater protection standards. See id. 257.95(a). If those standards--most of which are equal to Safe Drinking Water Act "maximum contaminant levels" for finished drinking water12--are exceeded, the facility must undertake corrective action to remediate the groundwater until contaminant levels are at or below the level of the standard. See id. 257.96(a), 257.98(c). In determining what corrective action is warranted, a facility must assess potential measures that can achieve the required remediation of groundwater impacts and abate not only future groundwater contamination, but also related surface water impacts. The facility must select a remedy that protects human health and the environment; attains the groundwater protection standard; controls the source of the releases of coal ash constituents; removes from the environment as much contaminated material released from the CCR unit as feasible; and satisfies all regulatory standards for management of wastes. See id. 257.97(b). The CCR Rule's comprehensive regulatory framework is the product of decades of EPA study on coal ash disposal. EPA designed the rule to identify and "ensure that groundwater contamination at new and existing CCR units will be detected and cleaned up as necessary to protect human health and the environment." See 80 Fed. Reg. at 21,396. But the effective 12 "Maximum contaminant level" means "the maximum permissible level of a contaminant in water which is delivered to any user of a public water system." 40 C.F.R. 141.2. 25 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00028 operation of the CCR rule's regulatory framework would be thwarted by treating releases to groundwater as point source discharges. That is because RCRA regulations like the CCR Rule apply only to "solid wastes," which RCRA defines to exclude industrial point source discharges subject to the CWA's NPDES permitting program. See 42 U.S.C. 6903(27). Thus, an interpretation of the CWA that treats releases of CCR to groundwater as point source discharges would have the perverse effect of actually preventing application of the more tailored CCR Rule.13 B. The Comprehensive Environmental Response, Compensation, and Liability Act and the Safe Drinking Water Act Also Apply. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., also addresses directly those pollutants released to groundwater. CERCLA authorizes EPA to remove pollutants if any "hazardous substance is released or there is a substantial threat of such a release into the environment. Id. 9604(a)(1). CERCLA defines "environment" broadly, to include both "ground water" and "subsurface strata." Id. 9601(8). Federal law also addresses groundwater contamination through the Safe Drinking Water Act (SDWA), 42 U.S.C. 300f et seq. In particular, over 650,000 stormwater drainage wells, septic 13 Several courts have applied RCRA's industrial discharge exclusion to "point source" discharges regulated by the CWA's NPDES program. E.g., Williams Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1328-29 (S.D. Iowa 1997) (dismissing RCRA claim because the discharges at issue were subject to NPDES permitting requirements); Coldani v. Hamm, Civ. No. S-07-660, 2007 WL 2345016, at *10 (E D. Cal. Aug. 16, 2007) (same); State v. PVS Chemicals, Inc., 50 F. Supp. 2d 171, 177-78 (W.D.N.Y. 1998) (applying industrial discharge exclusion and dismissing RCRA claim to avoid subjecting the same discharges to duplicative regulation under the CWA and RCRA). To be clear, EEI believes that the Williams and Coldani courts wrongly decided the issue of whether discharges via hydrologically-connected groundwater require an NPDES permit. In any event, those cases illustrate that regulation of releases to groundwater as point source discharges under the CWA would displace regulation under RCRA. 26 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00029 system leach fields, agricultural drainage wells, and aquifer storage and recovery projects are covered by the SDWA's requirements for Class V wells.14 Those requirements include submitting inventory information to permitting authorities, operating the wells in ways that do not endanger underground sources of drinking water, and properly closing the wells when they are no longer being used. See 40 C.F.R. pt. 144, subp. G. Subjecting Class V wells to NPDES permitting could mean imposing duplicative or inconsistent regulatory requirements. C. State Programs Also Directly Address Discharges to Groundwater. State laws also address groundwater pollution. States across the country regulate discharges into "waters of the state," which are often defined broadly to include groundwater. For instance, Florida has a comprehensive groundwater program in place that addresses discharges of pollutants to groundwater and through groundwater, as set forth in Chapters 62-520 and 62-550, F.A.C., which include specific numeric concentrations applicable to a multitude of metals, inorganic compounds, and other constituents, as well as narrative groundwater standards that prohibit concentrations that are toxic, carcinogenic or cause nuisance conditions. Recognizing that discharges to groundwater may ultimately interact with down gradient surface waters, Florida's groundwater program mandates that "discharge to groundwater shall not impair the designated use of contiguous surface waters." See F.A.C. subsection 62-520.310(12). Similarly, in Louisiana, the Louisiana Department of Environmental Quality solid waste regulatory program has been in place dating back at least into the late 1980s and mandates a permit for each solid waste impoundment and landfill. Permits require groundwater monitoring 14See EPA, Class V Wells for Injection of Non-Hazardous Fluids into or Above Underground Sources of Drinking Water (last visited Apr. 26, 2018), available at https://www.epa.gov/uic/class-v-wells-iniection-non-hazardous-fluids-or-above-undergroundsources-dri nking-water. 27 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00030 at each regulated unit. Monitoring systems consist of a sufficient number of wells installed at appropriate locations and depths to yield samples from the uppermost aquifer and from the uppermost water bearing zone. The program is structured to begin with detection monitoring followed by, as needed, risk-based assessment monitoring, assessment of corrective measures, selection of remedy and initiation of corrective action plan. Agency engineering, surveillance and enforcement staffs insure that the program is effective for protection of health and the environment. The state of South Carolina has defined "Waters" to include bodies of " ... surface or underground water ..." S.C. Code Ann. 48-1-10(2). In 1985, South Carolina Regulation 61-68, Water Classifications and Standards, was amended to include groundwater as waters of the State consistent with the policy of South Carolina Department of Health and Environmental Control (Department). The amended regulation provides " ... all ground waters of the State shall be protected to a quality consistent with the use associated with the classes described herein. Further, the Department may require the owner or operator of a contaminated site to restore the ground water quality to a level that maintains and supports the existing and classified uses ..." See S.C. Code Ann. Regs. 61-68(H). The regulation further establishes standards for groundwater based on the designated use as well as establishes a classification for exceptionally valuable ground water, such as in those areas in which groundwater is the only source of drinking water or groundwater provides the base flow for a particularly sensitive ecological system. The groundwater discharge permit is the State Land Application permit--which are also known as "ND" permits since there is no direct discharge (ND) to surface waters. Sierra Club v. EPA 18cv3472 NDCA 28 Tier 2 ED 002061 00159776-00031 See, also, Michigan (M.C.L. 324.3109(1), 324.3101(aa)); North Carolina (15A NCAC 2T .0102; 15A NCAC 18A .1934); Ohio (R.C. 6111.04(A)(1), 6111.01). Many states also have filed amicus briefs in pending litigation illustrating how their state regulatory programs already address releases to groundwater and any resulting environmental impacts. Those briefs are attached here as Appendix A. Should EPA assert that the NPDES program does not encompass discharges to surface waters via hydrologically connected groundwater, it will not be leaving a regulatory gap, despite what some stakeholders may claim. In fact, insofar as this industry is concerned, EPA would be ensuring that the more tailored regulatory program--put in place by the CCR Rule and other federal and state laws--would apply in full and that RCRA's industrial discharge exclusion (in the definition of "solid waste") would not be triggered. IV. Strong Practical Considerations Support Clarifying that the NPDES Program Does Not Encompass Discharges via Hydrologically Connected Groundwater. Aside from the foregoing legal considerations, EPA also should be cognizant of the strong practical considerations that militate against concluding that NPDES permitting requirements apply to discharges via hydrologically connected groundwater. These comments discussed many of the significant negative ramifications that could result from subjecting such discharges to NPDES requirements. See, Part HE, supra. When amending the CWA in the past, Congress has previously recognized the burdens EPA would face if it had to permit every possible point source discharge. See, 123 Cong. Rec. 38,924, 38, 956 (Dec. 15, 1977) (when exempting return flows from irrigated agriculture from NPDES, 29 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00032 Congress recognized "[t]he problems of permitting every discrete source or conduit returning water to the streams from irrigated lands is simply too burdensome to place on the resources of EPA"); 131 Cong. Rec. 15,616, 15,657 (June 13, 1985) (declaring it "absurd" to "require everyone who has a device to divert, gather, or collect stormwater runoff and snowmelt to get a permit from EPA as a point source" and warning about an "administrative nightmare" that would be "prohibitively expensive to administer"). Applying NPDES permitting requirements to discharges via groundwater migration would raise just the sorts of concerns Congress foresaw when it intervened in the 1977 and 1987 CWA amendments. For one thing, there is no meaningful limit to the number of new "point sources" that could require permits under the direct hydrologic connection approach--or under any similar approach, like the Ninth Circuit's "fairly traceable" standard. See County o fMaui, 886 F.3d at 749. Because such standards lack any clear textual or logical limiting principle, they could conceivably apply to almost any subsurface release of pollutants. See, Part. II.C, supra. Further, NPDES requirements often cannot be applied intelligibly to the new "point sources" that would be permitted under a direct hydrologic connection theory. That is, in part, because NPDES permitting regulations are, by their nature, "end of pipe." See Froebel v. Meyer, 217 F.3d 928, 937 (7th Cir. 2000). Unlike pollutants from a pipe, groundwater seldom discharges into a navigable water at a discrete and identifiable point. It is therefore not always possible to determine exactly where pollutants in groundwater reach navigable waters. And, when there is no readily identifiable, defined outfall or discharge point, there is nowhere to conduct the monitoring and sampling the Act requires. See 40 C.F.R. 122, subpt. C. Even assuming permit writers could somehow identify certain outfalls or discharge points, sampling and monitoring 30 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00033 locations may be both miles away and beyond the owner or operator's control. And at those outfalls or discharge points, groundwater will likely contain pollutants from many other sources. Things get trickier still when, as is often the case, pollutants are injected into groundwater as part of the treatment process. In those cases, sampling at the injection site may not make sense because filtration through the soil is itself part of the intended treatment process, and compliance with the Act is to be determined only "after all treatment processes" have occurred." 15 In sum, the result of the "direct hydrologic connection" theory is that many people and businesses will have no real way of knowing whether their conduct requires an NPDES permit, and if so, what the requirements of that permitting scheme might be. V. EPA Should Clarify its Interpretation of the CWA through Rulemaking. EPA should conduct notice-and-comment rulemaking to clarify the scope of the NPDES program. EPA should look to the Water Transfers Rule as a guidebook for how it should move forward. That rule, 73 Fed. Reg. 33,697 (June 13, 2008) (codified at 40 C.F.R. 122.3(1)), grew out of extensive litigation over whether an NPDES permit is required to move existing pollutants from one navigable water to another. According to the "unitary waters theory," no NPDES permit was necessary because "it is not an `addition ...to navigable waters' to move existing pollutants from one navigable water to another." Friends o f the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1217 (1 lth Cir. 2009).*31 15See U.S. EPA, NPDES Permit Writer's Manual 8.1.2.3 (Sept. 2010), available at https://www.epa.gov/npdes/npdes-permit-writers-manual. 31 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00034 Before EPA promulgated the Water Transfers Rule, several federal courts of appeals had rejected the unitary waters theory, instead holding that transferring pollutants from one navigable water body to another required an NPDES permit. See, e.g., Catskill Mountains Ch. o f Trout Unlimited, Inc. v. City o fNew York, 273 F.3d 481, 491 (2d Cir. 2001) (Catskill I); Catskill Mountains Ch. o f Trout Unlimited, Inc. v. City o f New York, 451 F.3d 77, 83 (2d Cir. 2006) (Catskill IT); Dague v. City o fBurlington, 935 F.2d 1343, 1354-55 (2d Cir. 1991); Dubois v. U.S. Dep 't o fAgric., 102 F.3d 1273, 1296 (1st Cir. 1996); Plains Res. Council v. Fidelity Exploration and Dev., 325 F.3d 1155, 1163 (9th Cir. 2003). As EPA noted, however, none of those courts ... viewed the question of statutory interpretation through the lens of Chevron deference. 73 Fed. Reg. at 33,700 n.4. The Second Circuit's decisions in Catskill I and Catskill II, for example, rested on the plain meaning of "addition," as used in the CWA's definition of "discharge of a pollutant" in 33 U.S.C. 1362(12). That Court held that "the transfer of water containing pollutants from one body of water to another, distinct body of water is plainly an addition and thus a `discharge' that demands an NPDES permit." Catskill I, 273 F.3d at 491. In rejecting the unitary waters theory, the Second Circuit emphasized that "[sjuch a theory would mean that movement of water from one discrete water body to another would not be an addition even if it involved a transfer of water from a water body contaminated with myriad pollutants to a pristine water body containing few or no pollutants[,] which would be "inconsistent with the ordinary meaning of the word `addition.'" Id. at 493. The Court went on to emphasize that, even if the text were ambiguous, legislative history would not compel a contrary interpretation, since "[t]he legislative history [was] silent on the meaning of `addition.'" Id. In CatskillII, the Second Circuit again rejected the unitary waters theory, reiterating that it "simply overlooks] [the] plain language" of the CWA. CatskillII, 451 F.3d at 84. 32 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00035 Circumstances changed once EPA promulgated the Water Transfers Rule, which provides that "an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use" is "not subject to regulation under the [NPDES] permitting program." 73 Fed. Reg. at 33, 697. EPA supported that Rule with an extensive analysis that took account of all relevant statutory provisions, as well as the statute's structure and legislative history, construing each part or section "`in connection with every other part or section to produce a harmonious whole.'" Id. at 33701. After the Water Transfers Rule took effect, challenges to that rule ended up back in the Second Circuit. In 2017, that Court held that whether a water transfer is an "addition" within the meaning of the CWA is ambiguous, and it ultimately upheld the Rule after deferring to EPA's interpretation at Chevron "Step Two." See Catskill III, 846 F.3d at 508. In upholding the Rule, the Court went out of its way to downplay the significance of its "plain language" holdings in Catskill I and Catskill II, asserting that it had, in fact, never held that the CWA's text was so "unambiguous" as to preclude Chevron deference in the event EPA adopted a rule based on the unitary waters theory. See id. All of this is to say that, even where prior judicial opinions may appear to foreclose a possible interpretation of the CWA, EPA may still promulgate and successfully defend a regulation which exercises its expertise in a manner compelling a different outcome. And it is what makes it so important that EPA act by rulemaking in this case. A regulation--as opposed to a less formal action-- will bring welcomed force and clarity to EPA's ultimate position, thus benefitting regulators, the regulated community and the public alike. EPA ought to engage in notice-and-3 33 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00036 comment rulemaking to promulgate such a regulation rejecting the "direct hydrologic connection" theory. VI. Conclusion. As things stand now, EEI's members face significant regulatory uncertainty when it comes to discharges via hydrologically connected groundwater. EPA can eliminate this uncertainty by undertaking a rulemaking to clarify that the CWA's NPDES program does not extend to discharges via hydrologically connected groundwater. Such a rule would be entirely consistent with the text, structure, history, and purpose of the CWA, and would preserve the function and purpose of other state and federal programs designed to address groundwater. It also would make eminently good sense and would avoid the many serious pitfalls that would present themselves under the "direct hydrologic connection" theory identified in EPA's request for comment. For all of those reasons, EEI respectfully requests that EPA swiftly conduct a rulemaking to establish that the NPDES program does not apply to discharges that occur via groundwater or subsurface flow.34 Sierra Club v. EPA 18cv3472 NDCA 34 Tier 2 ED 002061 00159776-00037 Appendix A Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00038 Case: 15-17447, 03/12/2018i ID: 10798442, DktEntry: 75, Page 1 of 27 No. 15-17447 3n tlje U nited S ta te s Court of Sppeal for tjc Jlin tlj Circuit H a w a i 'i W il d l if e F u n d , a H aw aii n o n - p r o f i t c o r po r a tio n ; S ierra C l u b - M a u i G r o u p , a n o n -p r o f it c o r p o r a t io n ; S u r f r id e r F o u n d a t io n , A NON-PROFIT CORPORATION; WEST MAUI PRESERVATION ASSOCIATION, A H a w a ii n o n -p r o f it c o r p o r a t io n , Plain tilTs-Appellees, v. County o f M a u i, Defendan t -Appellan t. Appeal from the United States District Court For the District of Hawaii Case No. l-12*cv~00198*SOM*BMK BRIEF OF AMICI CURIAE STATES OF ARIZONA, ALABAMA, ALASKA, ARKANSAS, GEORGIA, INDIANA KANSAS, LOUISIANA MISSOURI, MONTANA, NEBRASKA NEVADA, OKLAHOMA, SOUTH CAROLINA, TEXAS, UTAH, WEST VIRGINIA, AND WYOMING IN SUPPORT OF PETITION FOR REHEARING EN BANC March 12, 2018 Mark Brnovich Attorney General Nicholas C. Dranias Assistant Attorney General O f f i c e o f t h e A rizo n a Attorney G eneral 2005 N. Central Avenue Phoenix, Arizona 85004 (602) 542*5025 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00039 c a se : 15-17447, 03/12/2018. 10: 10795442, DktEntry: 75. Page 2: of 27 TABLE OF CONTENTS 1? A l ? A T t m t i A T f F T T P C i jf JL .J .1 . L A. L-V 1 i . I . l A '. l . ,1 . 1 . JL .J 2?" .11 WENT OF AMICI CURIAE.................. ......................... ..... .1 SUMMARY OF ARGUMENT............ ............................... ............. .2 a i;>rri jfji i?.isjrr 4- v .,.i U ,1 . s' 4- * v * + 1 + a >' * + + * * * * + * S' + n- * * + * + * v * + 1 + a >' * + + * * * * * + * s' + n- * * + * * + *i' * + * + A >' * + * + * * * * .3 I. THE PANEL DECISION INVOLVES A QUESTION OF EXCEPTIONAL IMPORTANCE BECAUSE IT CLASHES WITH OTHER CIRCUITS AND WOULD SWEEP AWAY TRADITIONAL STATE AND LOCAL AUTHORITY.... ...... II. THE PANEL REACHED ITS SWEEPING OUTCOME,. WHICH CLASHES WITH OTHER CIRCUITS, BY DISREGARDING A TRADITIONAL CANON OF CONSTRUCTION AND THE COOPERATIVE FHI REALISM EMBODIED IN THE CWA.......................... 10 A. The Panel Disregarded The Interpretative Canon "Expressio Urdus Est Exclusio Altering" ___ __ ____ 10 B. The Panel. Disregarded. The Cooperstive Federalism. Principles Embodied In The CWA................................ 14 Sierra Club v. EPA 18cv3472 NDCA ] Tier 2 ED 002061 00159776-00040 c a se : 15-17447, 03/12/2:0.18,. IO: 10795442, DktEntry: 75,. Page 3 f 27 TABLE OF AUTHOBITIEB CASES 26 Crown Assocs., LLC v. Greater N ew Hven R eg i Water Pollution Control Auth*f 2017 WL 2960506 (D, Comi, July 11, 2017) ....------- ...6 Bond i U.S. *1 O . 2 11 (4*20 1 1 ) ,16 C atskill M ountains Chapter o f Tremi Uniim ited, Ine* v. EPA 6 .1+3d 492 (2nd (, o.\ 2,01. /.)+. ,.14 Cat&Mll M ountains v. C ity o fN ew York 273 F.3d 481 (2d Cir. 2001.),,.,....................... ........................ .............. , . 6 Exxon Corp. v. Train 554 F.2d 131.0 (5th. O r. 1977)................................................................. ...7 FERC v. M ississippi 456 ITS 7491Q81?) 16 .*. \.y 4 r-..S .4 t A Ami \ A. i r r i / 4 i * 4 i * * i. i * 4 i * 4 i. * * 4 w * 4 i. * * 4 i * 4 i * * i. i * 4 i * 4 i. * * 4 w * 4 i. * * 4 i * 4 i * 4 x i * 4 i * 4 i. * * 4 i * 4 i. * * 4 w * 4 i . * 4 Gonzales v. Oregon lU E + . it43 00(i) , + + 3,7 Lmie v. United States Trustee 54.0 IT 8 59:8 (9004.) v>T * N-* + ^ . 7 * V J W \ / \ l * i t \ * \ f 5* / 11. M errill Lynch, Pierce, Fenner <&Sm ith, Ine,. v,,D ebit 547 U,S, 71 (2006)___ _______ ________ _______ ________ ______ N a tl R.Ei Passenger Corp. v. N a tl Asoli o fE J l Passengers 414 IT fi 458, (1974} 1.3 f . .1 . ,1 *W* K ./ * Zr f..J \ X , ,/ 1 / p * 1 i . p * 1 S' T l * H T 4 * ? > + T * ? t + < * * T 1 + I * I T * * > I * I T * H p * 1 T * * l * H t < T * T 1 * * N o il Wildlife Fedii v. Gcrsuch 693 F.2d 156 (D.C. Cir. 1982)............................................ ................. ... ..6 N ew York State D ep t o fSocial Services v. Dublino ''4 t.ji (3 . +4'!0h ( 1il i P'.) ...+..+..... .+..... ........ .+..+..... .+..... ........ .+..+...+..+..4...+I.... .+.. 1.7 .Rapanos v. United States / C O' 006) i k!5 . l (2 t . . . . . . . . . . . . . nt + r i . . . . + n + r i . . . . + n . . . . . . . i. . . . . . . + r i . . . . + r i . . . . + n . 16 Mice v., Harken Exploration Co, 250 F.3d 264 (5th Cir. ..6 it Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00041 c a se : 15-17447, 03/12/2018. 10: 10795442, DktEntry: 75. Page 4 f 27 SW ANCC v. U S. Arm y Corps o fEngineers 531 ILS. 1.59 (2001) !..... ................ "........ \S . v. 514 ILS. 549 (1995) U S. v. Morrison %/ W+k/a `'v U S r. Vonn o3o U.S. aa (2002.). *. . .......,., ........... United States r. Jin Fuey Moy 11 U * * 3.11 (1.11 ^ Village ofOconomowoc Lake v. Dayton Hudson Corporation 24 F.3d 962 (7th Cir. 1994)....................... ........................ .... W.R. Grce & Ce. v. United States EE. 261 F.3d 330 (3d Cir., 2001)..................................................... Wyeth v. Le eine 555 U.S. 555 (2009)................... ......,................ ......,............. STATUTES 3 2 TT R P S i 2 3 2 - . l \ * V ^ 1 + k.,*1A V -7 a % ; atui ../" ?.,!' A * S' A a- ' A A a a' A a v 4 a. a a A a s- a 14. a a A a s- a a- a a A s' + * v * + a a' A a v 4 a. a a A a b- * * a a A a b- a a- a a A * B' A a- a' * A a * 2 2 TT *4 g S 1 211 i . i j'..f A A 4 .1.. t . . f & JL A s A A K A A a A ri a. + A gi t A ri K A A gi t A ri . A A K A s A A A > A a A ri a. + A gi t A ri A A gi t A ri . A A K A s A A A > A a 2 3 TF Q C S i 3 1 9 V v ' a a..7 s- \ m-' * J X -,rf 1 . <;./ < T * * T > + g ' * * ( + n - + * * * + + * T * + i i + < T * + g + g ' * * + + t > ' * + i + g T * + i g + < g ' * + i > + < g ' t i il A a. ^ 1 . i l ^ O 'riig.AAAtAria-AAAtAria.AAai*Arifc. AAA+AAfcAri.AAAtAriB-AAAtAria.AAai*Arifc. AriA+AAfcAri.AAAtAria-A'< a . O a ^ "J- t i .1,. t a A a * v a A * a1+ * > 4 + a a + TM- * a- a a + 4 a- a a a a * v a a a a1+ 4 v 4 + a a a a- * a a + 4 a- a a + 4 * v a a a a -:>q j"f Q n R' 9 ^9 .i t . / \v i ' + ik .l + ri N f .. J * . f -riai On | f p y <M'S9 1: ? 'J f V - J ' * fev.7 a- % / ^ .1. t ..J T L /iL a i A * v * a- a a * K- * a A * * * a A a a A a>. * a A * B' A * ' * a- a a a * * * a + * * * a + 1 a + * T a A * B' A * v * * * + * * +3 i l U * a 3 .- fl"3 ' / C.- v iE\<B ^ ^ 3ji0 *3a A B- A >a A If B A v 4 < * B A B ' 4 a A B' 4 a A H B- A >a A If B A v 4 < * B A * ' 4 a A B' 4 a A ! B A >a A If B fi A ^ ^? O"t A -J * A AA A A hi * A A A A Ahi t A A A A AK t A ( A AK J- A -J A AA A A hi * A AA A Ahi A -A A AK A ( A AK J- A -i * A AA A A hi * A R B SS49*294 J. # ../ V V .1 *,< i u ? A it: X * * 4 * a a a a ' 4 * * a a a a- 4 a a a a a s a a -- a * a s * * ' 4 * a a a a ' 4 * * a a a a- 4 a a- a * a s a a -- a * a s * * ' 4 * a a a a ' 4 ........ 16 16 a a a a1a a a* 4 a* .1 . W a passim , , A A 4A A , , A a 3 A . A A- K A A b . _____ h.4 aaaI I , 13 8 a- a 4 a * a1a a a* 4 a- *.,.! ...14, 15 ...,,.,..14 . passim ......... 1o 1 . . . . . . . . . x ........... 1 rt a- 4 A a b- A a- T 4 A 1 .3 1 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00042 Case: 15-1744' 03/12/2018, IO: 10795442, DktEntry: 75. Page 5 of 27 OTHER AUTHORITIES Definition o f "Waters o f the U m ted S ta tes"--Recodifieatton ofPreE xisting Rules,. 82 FR 84899, 34900 (July 27, 2017)------ -------- --- 15 Federalist No. 51, reprinted in 1 Debate on. the Constitution 328' (B. oi ed. 1993) (J. M adison)...............-- ..-- ............-- ..-- .......... ..1 F Y 2017Non-TribaiPermits Detailed Percent Current Status, http s://www.epa.getv/sites/p rodoction/iiles/2018" 01/document s/finaljtv 17_eoy_non"tribaID3acklog_repo:rt_ca,rd..pdf.. .,.9 S. B . 92-414 1.972 U.8.CAA.N. 3868......................................... 12 Septic Stats? Arizona, National Environ mental Services Center tp *//www.nose,wvu.edu/septie_idb/arizona.him ............................. ...9 T.C. Winter, et al, Ground W ater and Surface W ater-A Single Resource, IJ.S. Geological Survey Circular 1139 (1998).,......... ......... ...8 Webster's N ew International Dictionary o f the English Language Unabridged (2nd ed. 1950)______ ________________ ___________ 12 Webster's N ew international Dictionary o f the English Language Unabridged (3rd ed. 1993)----- ---------- --- ---------- ---------- --- ---- .... 12 Sierra Club v. EPA 18cv3472 NDCA iv Tier 2 ED 002061 00159776-00043 Case: 15-17447, 03/12/2018. 10: 10795442, DktEntry: 75. Page 6 of 27 STATEMENT OF AMICI CUMAE The States of Arizona, Alabama, Alaska, Arkansas- Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Nevada, Oklahoma, South Carolina, Texas, Utah, West Virginia, and Wyoming file this brief under Circuit Rule 29"2(a) to spotlight the effect of the February 1, 201,8 panel decision and speak in furtherance of their interests in (and. sovereignty over) intrastate water management, in particular when the actions of state political subdivisions are at issue.. The panel decision, which threatens to deny state and. local governments their traditional primary authority to regulate and, manage intrastate land, and water uses, Is bad for the Amici States, wrong for the environment, and contrary to the principles of our "compound republic," Quoting Federalist No, 51. reprinted in 1 Debate on the Constitution 823 (B, Dailyn. ed. 1,998) (J. Madison}.. The Amid States have a significant Interest in. en bane rehearing because of their sovereign status and long history of responsible governance over intrastate lands and waters, including groundwaters, Arizona's efforts in this regard include its Aquifer Protection, Permit and Aquifer Water Quality Standards programs, which protect 1 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00044 c a se : 15-17447, 03/12/2018. 10: 10795442, DktEntry: 75. Page 7 of 27 groundwaters and aquifers. See, A.R.S. 49'203(A)(4), 223, 224(B). And other Amici States have their own permitting and water quality standards programsJ SUMMARY OF A R G U M E N T The petition for rehearing en banc should he granted because the panel decision wrongly extends Clean Water Act frCWA") jurisdiction to intrastate '`point sources" that are hydrologically connected only through intrastate nonpoint sources, such as groundwaters, to navigable waters. The panel's decision usurps from state and local governments their traditional, regulatory and. management authority in 1 For example, pursuant to the Nevada Water Pollution. Control. Law, the Nevada. Division, of Environmental Protection, issues discharge permits th at define the quality of a permitted discharge deemed, necessary to protect the waters of the State. See MRS 445A.300700. Nevada's definition, of waters of the State is broad, and. includes "all waters situated wholly or partly within or bordering upon, [the! State, including but not limited to* (l) [a]ll streams, lakes, ponds, impounding reservoirs, marshes, water courses, waterways, wells, springs, irrigation systems and. drainage systems; and (2) [all! bodies or accumulations of water, surface and. underground, natural or artificial." NRS 4 4 5 A .4 1 5 . Further, MRS 4 4 5 A .4 6 5 specifically prohibits the discharge of a pollutant without a permit. The Nevada Division of Environmental Protection has a long history of successfully overseeing this program. Accordingly, the Nevada Water Pollution Control Law would address the types of discharges contemplated while being protective of all. waters of the State, Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00045 c a se : 15-17447, 03/12/2:0.18,. IO: 10795442, DktEntry: 75,. Page 8 f 27 the sphere of intrastate land and. water uses,, and thus presents an Issue of exceptional importance. CW. point source juris diction is limited to intrastate point sources th at themselves convey a pollutant into navigable waters because the governing statutory definition, of "discharge of any pollutant" omi ts any reference to non point s o u rc e s su c h , as groundwaters, as a conveyance of a pollutant. Properly construed under the canon, "exprs sio unius est exclusio alteri us," this omission, precludes CW point source jurisdiction when pollutants are conveyed, to navigable waters solely by groundwaters or other nonpoint sources. In. reaching a contrary conclusion, the panel decision circumvents Supreme Court precedent, conflicts with opinions from, other circuits, and undermines a. rule of national application on. a question of exceptional importance in which there Is an overriding need for uniformity. ARGUMENT The mistaken, expansion, of CWA point source jurisdiction, embraced by the panel decision is understandable from, a certain perspective--everyone wants a clean., safe and. healthy environment. 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00046 c a se : 15-17447, 03/12/2018. 10: 10795442, DktEntry: 75. Page 9 of 27 But the federal government need not usurp state authority to achieve that outcome, and Congress intended no such complete occupation, of the field. State and local governments have the plenary power to protect public health, safety, and welfareJ this includes protecting intrastate groundwaters from point source discharges. As compared to any federal agency, state and local governments are closer to the problem sources and more responsive to the people. The CWA even authorizes states to form, interstate compacts to furnish solutions to interstate problems. 33 U.S.C. 1253(b). As discussed below, both the environment and the rule of law are best protected by respecting the statutory text, the congressional intent, and the principles of cooperative federalism, embraced, by the CWA. I. THE PANEL DECISION INVOLVES A QUESTION OF EXCEPTIONAL IMPORTANCE BECAUSE IT CLASHES WITH OTHER CIRCUITS AND WOULD SWEEP AWAY TRADITIONAL STATE AND LOCAL AUTHORITY "It was said of the late Justice Story, that if a bucket of water were brought into his court with, a com cob floating in it, he would, at once extend the admiralty jurisdiction of the United States over ltd" Village o f Oconomowoc Lake sc Dayton Hudson Corporation, 24 F.3d 982, 965 (7th ir. 1994). Courts should avoid adopting a similar 4 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00047 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 10 of 27 approach to CWA point source jurisdiction. Nevetheless. the pane! held that CWA. point sou roe jurisdiction extends to a "point source" whenever a pollutant added to navigable waters in. a more than de minimis amount is "fairly traceable" to a point source, regardless of how the pollutant traveled, from, the point source. .Dkt. 65 18-19, 25,2 The panel specifically ruled that a county-operated injection well, which, was used, for water reclamation and waste management, was required to secure federal National Pollutant Discharge Elimination System. ("NPDES") permitting because pollutants traceable to the well reached, the ocean by seeping through intermediating groundwaters. In other words, under the panel's decision, the jurisdictional element for liability under the CWA. is satisfied whenever there is an. indirect hydrological, connection between a point source and. navigable waters, regardless of intervening nonpoint sources, even, if the intervening medium, is gro u ndw a te rs ..2 2 For the sake of brevity, reference to "navigable waters" is used collectively to include both, "navigable waives" and "waters of the contiguous zone or ocean." See 33 U.S.C. 1.562(12) (A), (B).. s "It is basic science that ground, water is widely diffused by sat uration, within, the crevices of underground rocks and soil," and. "talbsent exceptional proof of something akin to a. mythical. Styx-like subterranean river," "passive migration of pollutants" through. o Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00048 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 11 of 27 But neither admiralty nor CW point source jurisdiction extends to every bucket of water (or well) that is hydrologically connected through, inadvertent seepage to navigable waters,, especially if that connection, is through groundwaters. Contrary to the panel decision, other circuits have held that a point source must its e lf convey a pollutant into navigable waters to trigger CWA. point source jurisdiction:--without the pollutant travelling through nonpoint sources, such as groundwaters.4 The Seventh Circuit., for example, has observed, that, even if groundwaters were thought within the scope of federal groundwater is not a discharge from a point source. M Crown Assocs., LLC v. Greater N ew Haven E eg i Water Pollution Control Auth., 2017 WL 2960506, at *8 (D. Conn.. July 11, 20.17). 4 Village o f Oconomowoc Lake, 24 F.3d at 965 (CWA does not assert "authority over groundwaters, just because these may be hydrologically connected with surface waters"); see also Mice r. Harken Exploration Co., 250 F.3d. 264, 272 loth Cir. 2001.) ("a generalized assertion that covered, surface waters will eventually be affected by remote, gradual, natural seepage from the contaminated groundwater" was outside the scope of the Oil Pollution Act In order "to respect Congress's decision to leave the regulation of groundwater to the States*); Cape Fear .Elver Watch v, Duke Energy Progress, 25 F, Supp, 3d 798, 810 (E.D.N.C. 2U1 0 ("Congress did not intend, for the CWA to extend, fedora! regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow "hydrologically connected' to navigable surface waters"); see generally CatsMll M ountains v. City o f New York, 273 F.3d, 481, 493 (2d Cir. 2001.) (point source ""refers only to the proximate source from which the pollutant is directly introduced to the destination, water body"); N a il Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165, 175"76 (D.C. Cir. 1982) (affirming reasonableness of EPA interpretation, that "the point source must introduce the pollutant into navigable water"). 8 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00049 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 12 of 27 regulatory authority (an. unsettled question), "the Clean Water Act does not attem pt to assert national power to the fullest." Village o f Oconomowoc fjiike, 24 F,3d. at 965. The circuit reasoned th at Congress repeatedly refused to pass proposals to add groundwaters `To the scope of the Clean Water Act." Id (citing .Exxon Corp, v. Train, 554 F,2d 1510, 1325*29 (5th Cir.1977}). The Seventh Circuit further explained that there was a d ear reason for Congress's refusal* impmeticality, As stated by the Senate Committee on Public Works in. 1972, Congress rejected proposals to add. jurisdiction, over groundwaters `Tbiecause the jurisdiction, regarding groundwaters is so complex and varied from State to State." Id, at 965. Congress was right. The panel decision, threatens to create an unworkable regulatory environment by extending an onerous federal regulatory structure over what has been a. traditional area of state responsibility. Whether and how pollutants seep through groundwaters into navigable waters from., a point source is exceedingly difficult to observe and measure, much less predict, due to numerous factors including difficulty of access, temperature changes,, chemical interactions, movement of the earth, tides, transpiration, evaporation. Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00050 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 13 of 27 groundwater withdrawals, vegetative conditions, atmospheric conditions, and. surrounding surface and below'`ground land uses. See T,C, Winter, et al, Ground Water and Surface Water- A Single Eesource, U,S, Geological Survey Circular 1139 (1998), And. yet, under the pane-fa reading of the CWA, unforeseeable criminal and. civil liability could arise whenever any point source is shown in hindsight ia have caused the addition of seine pollution, to any navigable waters through, even the m ost unpredictable, improbable and m uitistepped causal chain. See, e,gn S3 U.S.C. 1319(c), (d), 1365(a), The civil and. criminal exposure threatened by the panel decision would haunt far more than traditional waste management facilities, Section 1362(6) defines "pollutant" broadly to include much more than, traditional wastes.5 Point sources that; require NPDES permitting In Arizona alone could possibly jump more than 200,000^6--fxom. the current '-'150 permitted facilities to most (if not all) of the State's 35,332 5 Even potable water can. be considered a pollutant due to the residuals of the disinfection process. See, e.g., W,E, Grace $ Co, ic United Stales EPA, 261 F,3d 330, 333 (3d Cir. 2001) (describing disinfection process for potable water as creating chloramines), 8 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00051 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 14 of 27 Class Wells and potentially even an estimated 282,897 septic systems.6*9 If anything, a m ulti-thousand percent increase in. the number of alleged mandatory NPDES permittees is a conservative estimate of the regulatory impact of the panel decision. The regulatory effort compelled by the panel decision would need to range to the entire network of ever changing, externally influenced underground capillaries and seeps that ultimately feed "navigable waters ." See 33 U.S.C. 1842(c)(3), It is hard to imagine any land, or water use with, any potential for runoff., spillage.; or leakage (much less any water storage, transportation, recycling, or waste management activity) that would not have this possible or eventual hydrological connection to navigable waters, particularly if viewed in hindsight. Every fluid or semi-fluid, discharge that Is capable of seepage, runoff, spillage, leakage, or evaporation, is likely hydrologically connected, to navigable waters indirectly through 6 Compare "FY 2017 Non-Tribal Permits Detailed. Percent Current S tatus/' httns-//www,epa.anv/sltes/nrod.uction/f0.es/2018-01/d.oeu.ments/ final fyl7 eov non.1dribal backlog report card,pdf, with "National Underground Injection Control Inventory "Fedoral Fiscal Year 2016," hitpsfowvi w.epa gnw.btes/pnkioction/f0es/201.7~Q6/documents/state fv HUinveiitory_lormat_n08.pdf, and "Septic Stats- A r iz o n a /' h?tp*//w\\ w.nesc.wvu.edu/sentir idh/arizona.htm (all. last visited 3.1.2018b 9 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00052 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 15 of 27 noiipoint sources, such as groundwaters. And almost every land or water use is capable of generating such discharges. As quipped in Village o f Oconomowoc L&ke, even, a bucket of water can be hydrologically connected to navigable waters. 24 F.3d at 965. In short, extending CWA. liability to any point source that is connected by groundwaters, or other nonpoint sources, to navigable waters threatens to force Arizona (and other Amid States that have accepted primacy) to undertake a massive expansion of NPDES permitting in areas the CWA was never intended, to reach, as the far more reasonable approach of other circuits has confirmed.. EL THE PANEL REACHED ITS SWEEPING OUTCOME BY DISREGARDING A TRADITIONAL CANON OF CONSTRUCTION AND THE COOPERATIVE FEDERALISM EMBODIED IN THE CWA Em. banc rehearing would allow for correction of the panels error through a straightforward application, of a basic canon of statutory interpretation with, due consideration for principles of cooperative federalism. A. The Panel Disregarded The Interpretative Canon ^Expressio Urdus Est Exclusio Alterius" Under the interpretative canon "expressio uniiis excluslo alteriusv the omission, of a relevant term, from a statutory provision, is presumed 1.0 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00053 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 16 of 27 to exclude Intentionally what has been omitted., Lamie r, United States Trustee, 540 U.S, 526, 537 (2004); U S, v. Venn, 535 U,S. 55. 64 (2002). This canon compels the conclusion that CWA point source jurisdiction, cannot be triggered, such, that a NFDES permit becomes necessary, unless a point source is the conveyance that adds pollution to navigable waters--to the exclusion of non point sources, such, as groundwaters. The jurisdictional reach of the CWA is established by the meaning of "discharge of any pollutant" in. the Act's declaration th at "the discharge of any p o in tan t by any person shall be 'unlawful."' 33 U.S.C, 1.311(a). The definition of "discharge of a pollutant" (and "discharge of pollutants") is "any addition, of any pollutant to navigable waters lor waters of the contiguous zone or the ocean] from any point source [other than a vessel, or other floating craft,)." Id 1.362(l.2)(A), (B), However, the rference in this definition to "any point source" Is emphatically not a reference to a mere source for a. pollutant, A. "point source" is expressly defined as more than a. source; It is defined, as a type of "conveyance" that is "discernible,, confined, and discrete." 33 U.S.C. 1362(14), A conveyance Is a "means or way of conveying," it Is not Sierra Club v. EPA 18cv3472 NDCA 1.1 Tier 2 ED 002061 00159776-00054 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 17 of 27 merely a "source."7 Thus, in. the definition of "discharge of a pollutant," Congress chose to reference "any point source" as the only designated "means or way of conveying" a pollutant into navigable waters. Congress's stark omission of any reference to non.point sources such as groundwaters, as a "means or way of conveying'' a pollutant in 33 U.S.C. 1362(12) should not he ignored. Congress repeatedly rejected, amendments that would have extended, the CWA to groun.dwa.ter, 8. Rep, No. 92-41.4, at 3735-3739 (1971), Furthermore, whether the conveyance of a pollutant is a point or non point source is highly relevant to the CWA, Numerous provisions of the CWA distinguish between, point and nonpoint sources. See, e.gi, 33 U.S.C, 1251, 1255, 1270, 1281, 1285, 1311, 1314, 1319, 1324, 1330, 1346, Congress was clearly aware that a nonpoint source, such as groundwaters, could be a. relevant conveyance of pollution to navigable waters. Yet, Congress made no mention, of any nonpoint source in the 7 Conveyance, Webster's New International Dictionary of the English Language Unabridged (3rd ed. 1993) ("1* the action, of conveying , , . h* carrying, transporting, transportation. . . 2: a means or way of conveying . , . c* a channel or passage for conduction or transmission . . . d- a. means of carrying or transporting something"); see also conveyance, Webster's New International Dictionary of the English. Language Unabridged (2nd ed. 1950), 1.2 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00055 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 18 of 2? definition of "discharge of a pollutant," which controls the reach of CWA point source jurisdiction. Compare 83 .B.C.. 1311(a) with 1362(12)(A), (B>, This omission should be read as intentional, Gwen the omission of any reference to any nonpoint source in the governing definitions, a straightforward application of the "expressio unius exclusio alteri.u.s" canon confirms that CWA. point source jurisdiction (and NFDES permitting) applies only to point sources th at themselves convey pollution, into navigable waters, to the exclusion of any nonpoint source, such, as groundwaters,. See N a il R J t Passenger Carp, v, N a tl A ssh o f R .Il Passengers, 414 U.S. 453, 458 (1974) (`"When a statute limits a thing to he done in a particular mode, it includes the negative of any other model This principle of statutory construction reflects an ancient maxim--expressie unius est exelusio To sustain CWA point source jurisdiction, a "point source" must be the "conveyance" of the pollutant into navigable waters, not merely the source, because it is the only conveyance mentioned. This natural, interpretation, which, has been adopted by other circuits as discussed above, defeats the claim that CW point source jurisdiction can be 1.3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00056 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiitiy: 75, Page 19 of 2? sustained by a mere indirect hydrological, connection between a point source arid navigable waters through nonpoint sources, such as groundwaters* See also M errill Lyncht Pieme, Fenner 1 Sm ith t Ine. r. Dabit> 547 ILS, 71, 87-88 (2006) ("The existence of these carve-outs both evinces congressional sensitivity to state prerogatives in this field and. makes it inappropriate for courts to create additional,, implied exceptions."). B. The Panel Disregarded The Cooperative Federalism Principles Embodied In The CWA The CWA is a quintessential example of "cooperative federalism." Catsklll M ountains Chapter o f Trout Unlimited, Inc: f; EPAt 846 F,.3d 492,. 51.4 (2nd Cir. 201.7) ('Act largely preserves states5 traditional authority over water allocation and use55). T h e CWA emphasises th at Congress had. the intention to accommodate the traditional and "primary *" role of state and local government in the field of environmental regulation. 33 U.S.C. 1.25Kb). The CWA. also repeatedly emphasises that federal agencies are to act in. "cooperation" with, the States. 38 U.S.C. 1251(g), 1252(a). When it comes to state authority to "allocate quantities of water," such, as in. the Arizona Recharge Program.,, the CWA includes a 14- Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00057 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 20 of 27 powerfully deferential, savings clause to bar federal regulation from interfering with state primacy, SB U.S.C. 1251(g).s And this savings clause is reinforced by 33 U.S.C. 1370, which states* "except as expressly provided in this chapter nothing in. this chapter shall. . . , be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.** The panel decision's indirect hydrological connection, theory of CWA point source jurisdiction is inconsistent with these manifestations of cooperative federalism In the CWA, which even the EPA recognizes.. Definition o f "Waters o f the United S ta tes"--Recodieation o f Pre- E xisting Rulest 82 Fit 34899, 34900 (July 27 201.7) (identifying policy goals of CWA as "(a) To restore and. maintain the nation's waters? and Cb) to preserve the States' primary responsibility and right to prevent, reduce, and eliminate pollution j. It disregards the traditional $ As part of its Recharge Program,. Arizona currently oversees and. regulates a vast array of groundwater storage fad!hies, many, if not most, of which are not currently regarded as subject to NPDES permitting. Underground Water Storage, Savings and Replenishm ent available at httns*//new.azwater.gov/ recharge Cast visited 2.26.2018). Planning is underway for many more such facilities on the assumption that NPDES permitting is not necessary. USF Perm it Application Online Noticing, available at https *//nw.azw ater.gov/recharare/ emitted-fad!ities, (last visited 2.26.2018). 1.5 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00058 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 21 of 27 management and re"g&ulatory authority of states over local land and water uses. FERC v. Mississippi, 456 U.S. 742, 767 n.SO (1982) (management and regulation of local lands and waters "is perhaps the quintessential state activity"). And., by threatening a nearly limitless expansion of preemptive federal jurisdiction, the panel decision wren circumvents the Supreme Court's efforts to moderate similarly limitless interpretations of "waters of the United States" in Mopsnos v. United States, 547 U.S. 715, 779, 786 (2006) (Scalia, J., concurring; Kennedy, J., plurality), and SW ANCC v. U,S, A rm y Corps o f Engineers, 531 U.S. 159, 172*74 (2001).9 For these reasons, the panel's indirect hydrological connection, theory of CWA point source jurisdiction, which lacks any d ear and manifest textual support in the Act, should, be rejected, in 9 The doctrine of constitutional, avoidance requires courts to construe statutes, "if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that scoreA United States v. Jin Fuey M oy 241. U.S. 394, 401 (191.6), A. mere indirect hydrological connection between a point source and navigable waters might not be a sufficient "jurisdictional element" lor Commerce Clause authority under U S. v. Morrison, 529 U.S, 598 (2000), and U.S. v. Lopez, 51,4 U.S. 549 (1995). The panel's theory is also constitutionally questionable because it may effectively authorize federal permitting to supersede nearly all state authority over intrastate land and water uses.. SWANCC, 531 U.S. at 172*74 ("significant constitutional questions" are raised by "permitting federal encroachment upon a traditional state power"); see also Bond v. U.S., 564 U.S. 21.1, 222 (2011) (observing our system of dual, sovereignty denies "any one government complete jurisdiction over all the concerns of public life"). 1.6 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00059 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiitiy: 75, Page 22 of 27 favor of the interpretation that a point source must Itse lf be the conveyance of pollutants into navigable waters.165 CONCLUSION For the forgoing reasons, the undersigned Amici States request th at the petition for eo. banc rehearing be yranted. March 12, 2018 Respectfully Submitted, /s /X ielh iis C. Dramas Mark Iimovioli Attorney General Nicholas C. Dranias Assistant Attorney General O f f ic i o f th e Arizona Attorney G eneral 2005 N. Central Avenue Phoenix, Arizona 85004 (602) 542-5025 Counsel for Amicus State o fArizona 10 A federal statute should not be construed to preempt state laws or traditional sovereign interests unless such intent is evidenced by a. clear and manifest statem ent from. Congress. Wveth v. Levine, 555 U.S, 555. 565 (2009); Gonzales v. Oregon, 540 U.S, 243, 255, 270-72 (2096), This doctrine is applicable with, special force in the context of cooperative federalism. N ew York State Dep't o f Social Services v, Diditimr 413 US.. 405, 421 (1973). 1.7 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00060 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 23 of 27 ALSO SUPPRTED BY STEVE MRSHLL ATTORNEY GENERL OE ALABAMA P.O. Box 300152 M.on.tgomery, AL 8613(M)152 JAHNA LINDEMUTH ATTORNEY GENERAL OF ALASKA 1031 West Fourth Avenue, Suite 200 Anchorage, AK 99501 LESIIE R TLED G E ATTORNEY GENERL OF ARKANSAS 323 Center Street,. Suite 200 Litile Rock, AR 72201 CHKISTPHEE M. OARR ATTORNEY GENERL OF GEORGIA 40 Capitol Square, Southwest Atlanta, GA 30334 CURTIS T. H ILL JR, ATTORNEY GENERAL OF INDIANA 302 West Washington Street. 5th Floor Indianapolis, IN 46204 DEREK SCHMIDT ATTORNEY GENERAL OF KANSAS: 120 Southwest 10th Avenue, 2nd Fleer Topeka, KS 66812 J I F F LANDRY ATTORNEY GENERAL OF LOUISIANA P.O. Box 94005 Baten Rouge, LA 70804 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00061 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiitiy: 75, Page 24 of 27 JOSH HAWLEY ATTORNEY GENERAL OF MISSOURI 207 West High Street, P.O. Bex 899 Jefferson. City, MO 65102 TIM FOX ATTORNEY GENERAL OF MONTANA 215 North Sanders, RO. Box 201401 Helena, MT 59620 DOUG PETERSON ATTORNEY GENERAL OF NEBRASKA P.O, Box 98920 Lincoln, NE 68509 ADAM PAUL LXLT ATTORNEY GENERAL OF NEVADA 100 North Carson Street Carson City, NV 89701 MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA 81. 3 Northeast 21s* Street Oklahoma City, OK 78105 ALAN WILSON ATTORNEY GENERAL OF SOUTH CAROLINA P.O. Box 1.1.549 Columbia. SC 2921.1 KEN PAXTON ATTORNEY GENERAL OF TEXAS P i). Box 12548 Austin, TX 78711. Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00062 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkiEiltry: 75, Raga 25 of 27 SEAN D. REYES ATTORNEY GENERAL OF UTAH RO. Box 142820 Sait Lke City, UT 84114 PATRICK MORRISEY ATTORNEY GENERAL OF WEST VIRGINIA State Capitol Complex, Bldg. 1, Roora E-26 Charleston WV 25805 PETER K. MICHAEL ATTORNEY GENERAL OF WYOMING 2820 Capitol Avenue Citoyenne, WY 82002 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00063 c a s e : 15-17447, 03/12/2018, ID: 10795442, DkfEiltiy: 75, Page 26 of 27 CERTIFICATE OF COMPLIANCE .Pursuant to Fed.. R. App. P. 32(a)(7)(C), the undersigned hereby certifies that this brief complies with the type-volume limitations of Fed. R, App. P. 29(b) as modified by Fed. E, pp. P. 29-2(e)(2), 1. Exclusive of the exempted, portions of the brief, as provided in Fed.. R. pp. P. 32(&)(7)(B)(iii) and (0, this brief is 3464 words. 2. This brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Century type. /s/N icholas C, Dramas_____ Nicholas C. Dramas Assistant Attorney General O ffic e of t e e Arizona Atto rn ey G en era l 2005 N, Central Avenne Phoenix, Arizona 85004 (602) 542-5025 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00064 Case: 15-17447, 03/12/2018, ID: 10795442, DkiEotry: 75, Page 27 of 27 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of March, 20IS, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. Counsel for all parties to the case are registered CM/ECF users and will be served by the appellate CM/ECF system.. AC Nicholas C. Dramas Nicholas C. Dranias O ff ic e o f th e A rizona. Attorney General 2005 N. Central Avenue Phoenix., Arizona 85004 (602) 542-5025 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00065 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 1 No. 18-5115 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ---------------------------------- ---------------------------------KENTUCKY UTILITIES CO., Defendant-Appellee, v. KENTUCKY WATERWAYS ALLIANCE; SIERRA CLUB, Plaintiffs-Appellants. ---------------------------------- ---------------------------------- On Appeal from the United States District Court for the Eastern District of Kentucky, Central Division Case No. 5:17-cv-00292-DCR Brief of T he State of Alabama, Sixteen Other States, and The Mississippi Department of Environmental Q uality as A m i c i C u r i a e in in Support of Appellee Kentucky Utilities Co. STEVE MARSHALL Ala. Attorney General Eric M. Palmer Ala. Assistant Solicitor General State of Alabama Office of the Attorney General 501 Washington Avenue Montgomery, AL 36130 (334) 242-7300 Counselfor Amicus Curiae State o fAlabama Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00066 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 2 Kentucky Utilities Co. v. Kentucky Waterways Alliance, et al, No. 18-5115 CERTIFICATE OF INTERESTED PERSONS To the best of counsel's knowledge, except for the following, all parties, intervenors and amici appearing before the district court and in this Court are listed in the Brief for Appellant: State of Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, Wyoming, and the Mississippi Department of Environmental Quality - amici curiae Counsel for the Appellant further certify that no additional publicly traded company or corporation has an interest in the outcome of this appeal. Respectfully submitted this 4th day of May 2018. STEVE MARSHALL Ala. Attorney General Is/ Eric M. Palmer_________ Eric M. Palmer Ala. Assistant Solicitor General State of Alabama Office of the Attorney General 501 Washington Avenue Montgomery, AL 36130 (334) 242-7300 (334)242-4891 (fax) Counselfo r Amicus Curiae State o fAlabama Sierra Club v. EPA 18cv3472 NDCA Cl of 1 Tier 2 ED 002061 00159776-00067 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS....................................................... C-l TABLE OF CONTENTS..................................................................................................i TABLE OF AUTHORITIES.........................................................................................iii INTEREST OF AMICUS CURIAE...............................................................................1 SUMMARY OF ARGUM ENT...................................................................................... 2 ARGUM ENT....................................................................................................................4 I. The Hydrological Connection Theory of CWA Jurisdiction Is Inconsistent with the Text of The CWA and Cooperative Federalism Principles............................................................................................ 4 II. The Hydrological Connection Theory Dramatically Increases State Regulatory and Compliance Costs and Creates New, Unanticipated Costs for Regulated Parties........................................................14 A. The Hydrological Connection Theory Would Require a Radical and Impracticable Expansion of State NPDES Pennitting Programs................................................................................. 14 B . The Hydrological Connection Theory Would Impose New and Increased Compliance Costson Regulated Parties........................ 17 III. Extending the CWA's Scope Is Unnecessary to Address Groundwater Pollution........................................................................................ 21 A. Other Federal Statutes Provide Alternative Methods of Addressing Groundwater Pollution........................................................ 21 B. State Law Provides Other Mechanisms to Address Groundwater Pollution............................................................................ 24 C O N C L U S IO N ...............................................................................................................26 i Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00068 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 4 COUNSEL FOR ADDITIONAL AMICI....................................................................27 CERTIFICATE OF COMPLIANCE........................................................................... 28 CERTIFICATE OF SERVICE.....................................................................................29i Sierra Club v. EPA 18cv3472 NDCA ii Tier 2 ED 002061 00159776-00069 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 5 Cases TABLE OF AUTHORITIES 26 Crown Assocs., LLC v. Greater New Haven Reg'l Water Pollution Control Auth., 2017 WL 2960506 (D. Conn. July 11, 2017)................................ 6 Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., 25 F. Supp. 3d798 (E.D.N.C. 2014)............................................................................................ 10 Catskill Mountains Ch. o f Trout Unlimited, Inc. v. EPA, 846 F.3d 492 (2d Cir. 2017)....................................................................................................... 11,21 Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir. 1977)............................................. 10 FERC v. Mississippi, 456 U.S. 742 (1982)................................................................. 4 Haw. Wildlife Fund v. Cty. o fMaui, 886 F.3d 737 (9th Cir. 2018)....................... 13 Kelley ex rel. Mich. v. United States, 618 F. Supp. 1103 (W.D. Mich. 1 9 8 5 ) ................................................. 11 Rapanos v. United States, 547 U.S. 715 (2006)..............................................7, 8, 12 Sackett v. EPA, 566 U.S. 120 (2012)......................................................................... 18 Solid Waste Agency o f N. Cook Cnty. v. U.S. Army Corps o f E n g 'rs, 531 U.S. 159 (2001)....................... ........................ .................!.......................... 4, 10 Tarrant Regional Water Dist. v. Hermann, 133 S.Ct. 2120 (2013).................... 4, 9 Tennessee Clean Water Network, et al. v. Tennessee Valley Authority, No. 17-6155 (6th Cir. appeal docketed Oct. 3, 2017)............................................1 Tennessee Clean Water Network v. Tennessee Valley Authority, 273 F. Supp. 3d 775 (M.D. Tenn. 2017)..............................................................................13 U.S. Army Corps o f Engineers v. Hawkes Co., 136 S.Ct. 1807 (2016)........... 17, 18 United States v. Alaska, 521 U.S. 1 (1997)................................................................. 4 iii Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00070 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 8 United States v. Waste Indus., Inc., 734 F.2d 159 (4th Cir. 1984)........................ 22 Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17- 1640, 2018 WL 1748154 (4th Cir. Apr. 12,2018)................ 13 Village o f Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994).............................................................................................................. 7 Statutes 33 U.S.C. 1251...............................................................................................................9 33 U.S.C. 1311............................................................................................... 5, 15, 16 33 U.S.C. 1313............................................................................................. 16,17,24 33 U.S.C. 1314........................................................................................................... 24 33 U.S.C. 1315........................................................................................................... 17 33 U.S.C. 1342............................................................................................... 5, 14, 15 33 U.S.C. 1362................................................................................................... passim 33 U.S.C. 1370........................................................................................................... 24 42 U.S.C. 6973........................................................................................................... 22 42 U.S.C. 9601........................................................................................................... 23 42 U.S.C. 9604........................................................................................................... 23 401 KAR 100:030......................................................................................................... 25 401 KAR 5:037............................................................................................................. 25 401 KAR Chapter 45.....................................................................................................25 401 KAR Chapter 46.....................................................................................................25 KRS 224.1-010........................................................................................................... 25 KRS 224.70-110......................................................................................................... 24 Other Authorities Envtl. Prot. Agency, A H omeowner's Guide to Septic Systems 5 (2005), available at https://ww3/epa/gov.npdes/pubs/jomeowner_ guide_long.pdf........................................................................................................... 20 Envtl. Prot. Agency, Initial Results o f a Review o f the National Pollutant Discharge Elimination System Program in the State o f Minnesota, at 5 (May 2013), available at https://www.epa.gov/sits/production/files/201704/documents/mnj3etitionjreportjmay-03-2013updated.pdf iv Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00071 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 7 (alleging in part that Minnesota failed to establish and enforce an effective NPDES permitting program for over 55,000 septic systems) .................................................................................. ..................................................20 EPA ICR Supporting Statement, Information Collection Request for National Pollutant Discharge Elimination System (NPDES) Program (Renewal), OMB Control No. 2040-0004, EPA ICR No. 0229.22 at 23 tbl. 12.1 (Sept. 2 0 1 7 )..........................................................................................16 Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities, 80 Fed. Reg. 21,302 (Apr. 17,2015), 2010 WL 2470432 ("CCR Rule")-, 40 C.F.R. 257.50257.107........................................................................................................................ 22 Rules Fed. R. App. P. 2 7 ........................................................................................................28 Fed. R. App. P. 2 9 ............................................................................................................1 Fed. R. App. P. 3 2 ......................................................................................................... 28 Treatises U.S. Const, amend. X ......................................................................................................4 Regulations 33 C.F.R. 328.3........................................................................................................... 6 40 C.F.R. 122.2........................................................................................................... 6 40 C.F.R. 130.3..........................................................................................................16 40 C.F.R. 131.3..........................................................................................................16 40 C.F.R. 131.4..........................................................................................................16 40 C.F.R. 230.3........................................................................................................... 6 40 C.F.R. 257.50....................................................................................................... 22 40 C.F.R. 257.71....................................................................................................... 22 40 C.F.R. 257.101.....................................................................................................22 40 C.F.R. 257.107.....................................................................................................22 79 FR 22188 (April 21, 2014)........................................................................................ 6 79 FR 22218 (April 21, 2014)........................................................................................ 6 V Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00072 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 8 INTEREST OF AMICUS CURIAE The States of Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, Wyoming, and the Mississippi Department of Environmental Quality file this brief under Rule 29(a) of the Federal Rules of Appellate Procedure.*1 The amici States have a substantial interest in this case because the outcome sought by Kentucky Waterways Alliance and the Sierra Club would create an unprecedented extension of federal jurisdiction under the Clean Water Act ("CWA") and the National Pollutant Discharge Elimination System ("NPDES"), and expand federal regulation to waters historically regulated by the States. That result is contrary to both the text of the CWA and the cooperative federalism scheme on which the CWA is premised. For these reasons, the amici States have already submitted a brief in support of the Tennessee Valley Authority in the pending appeal Tennessee Clean Water Network et al. v. Tennessee Valley Authority, No. 17-6155 (6th Cir. appeal docketed Oct. 3, 2017), which also presents the question whether CWA jurisdiction extends to hydrologically connected groundwater. 1A State "may file an amicus-curiae brief without consent of the parties or leave of court." Fed. R. App. P. 29(a). 1 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00073 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 9 The amici States appreciate the importance of protecting state and national waters, and have long exercised their traditional authority to regulate in this sphere. Amici believe, however, that judicially expanding the scope of the NPDES regime to hydrologically connected groundwaters would violate the text of the statute and erode the States' role as the principal protectors of local water resources. Moreover, amici are concerned that the result of this federal jurisdictional creep will not be more aggressive environmental cleanup actions, but rather an unwarranted expansion of the NPDES program--with its costly and time-consuming requirements--to scores of new lands and water sources that the program was not designed to address. Navigating these complexities will increase compliance costs and administrative burdens on States and their agencies without materially improving environmental quality. These burdens could divert resources from existing state enforcement efforts and emergency clean-up measures, while opening the States to the threat of liability from new citizen suits seeking enforcement of new duties that are nowhere to be found in the text of the CWA. SUMMARY OF ARGUMENT The CWA strikes a balance between state and federal environmental enforcement in a cooperative scheme designed to protect the nation's waters. The CWA prohibits discharges of pollutants from "point sources" into waters of the United States. But Congress expressly left regulation of groundwater pollution to 2 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00074 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 10 the States. The pollution at issue here occurred on intrastate land, with some pollutants--eventually and indirectly-- allegedly making their way to waters of the United States by seeping into the ground from coal ash ponds and migrating through the groundwater. The CWA's prohibition on pollution discharges without an NPDES permit does not apply to this form of groundwater pollution. Nevertheless, Plaintiffs urge this Court to adopt a "hydrological connection" theory of CWA jurisdiction. The effect of this theory is to create an end-run around the jurisdictional limitations embodied in the text of the CWA. The hydrological connection theory is unsupported by the text and would lead to a limitless expansion of federal jurisdiction, effectively erasing the distinctions between state and federal authority that are incorporated into the CWA's very structure. Further, expanding the CWA's scope to encompass hydrologically connected groundwaters would introduce unwarranted complications and complexities for States attempting to administer new and unanticipated regulatory duties. The uncertainties inherent in this approach would make it impossible for States to regulate with certainty in this area, and threaten to drain resources from other vital environmental and water-quality programs. Finally, there is no need for this dramatic expansion of CWA jurisdiction. Both the federal government and the States already have broad and sufficient authority to address threats to groundwater. 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00075 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 11 This Court should not clear the way for countless citizen suits calculated to second-guess State environmental remedial decisions, like this one. Instead, it should follow the clear text of the CWA and affirm the lower court's decision. ARGUMENT I. The Hydrological Connection Theory of CWA Jurisdiction Is Inconsistent with the Text of The CWA and Cooperative Federalism Principles The Tenth Amendment reserves all powers not delegated to the United States by the Constitution to "the States respectively, or to the people." U.S. Const, amend. X. The "ownership of submerged lands, and the accompanying power to control navigation, fishing, and other public uses of water `is an essential attribute of sovereignty.'" Tarrant Regional Water Dist. v. Hermann, 133 S.Ct. 2120, 2132 (2013) (quoting United States v. Alaska, 521 U.S. 1, 5 (1997)). Indeed, the management of local lands and waters "is perhaps the quintessential state activity." FERC v. Mississippi, 456 U.S. 742, 767, n. 20 (1982). To secure the reserved power of the States over local land and water resources, the Supreme Court has required a clear statement of congressional intent to interfere with the States' "traditional and primary power of land and water use" when assessing the validity of expansive interpretations of the CWA. Solid Waste Agency o f N. Cook Cnty. v. U.S. Army Corps o f Eng 'rs, 531 U.S. 159, 174 (2001) (hereinafter "SWANCC"). 4 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00076 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 12 But there is nothing resembling a clear statement of Congressional intent to subject regulated parties to liability for groundwater discharges present in the text of the CWA. Instead, the text of the Act unambiguously precludes liability for such discharges, and affirmatively indicates that Congress chose to leave regulation of groundwater, including groundwater that is "hydrologically connected" to "navigable waters" within the regulatory jurisdiction o f the States. Accordingly, the lower court's decision below must be affirmed. The CWA generally prohibits "the discharge of any pollutant" from a "point source" to "navigable waters," without an NPDES permit. See 33 U.S.C. 1311(a); 1342; 1362(12). The term "discharge of any pollutant" is defined as "any addition of any pollutant to navigable waters fro m any point source." 33 U.S.C. 1362(12) (emphasis added). This prohibition could apply to groundwater discharges only if (T) hydrologically connected groundwater itself constitutes "navigable waters" under the CWA, (2) groundwater constitutes a "point source," such that a discharge from hydrologically connected groundwater into navigable waters would constitute a discharge from a "point source," or (3) the discharge of a pollutant from a point source that travels through groundwater to navigable water in itself constitutes the addition of a pollutant to navigable waters from a point source. None of these theories are plausible. 5 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00077 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 13 First, it is beyond dispute that groundwater does not in itself constitute "navigable waters." The CWA's definition of navigable waters-- "waters of the United States, including the territorial seas"-- excludes groundwater. 33 U.S.C. 1362(7). Federal regulations likewise exclude groundwater from navigable waters. 40 C.F.R. 122.2, 230.3(o); 33 C.F.R. 328.3(a). See also 79 FR 22188, 22218 (Apr. 21, 2014) ("The agencies have never interpreted `waters of the United States' to include groundwater"). Second, groundwater itself cannot constitute a "point source" within the meaning of the Act. Under the CWA, a "point source" is "any discernible, confined and discrete conveyance," which includes (but is 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). But groundwater is neither discemable, confined, nor discrete. "It is basic science that ground water is widely diffused by saturation within the crevices of underground rocks and soil," and "[a]bsent exceptional proof of something akin to a mythical Styx-like subterranean river," "passive migration of pollutants" through groundwater is not a discharge from a point source. 26 Crown Assocs., LLC v. Greater New Haven R e g 'l Water Pollution Control Auth., 2017 WL 2960506, at *8 (D. Conn. July 11, 2017). Accordingly, the discharge of a pollutant from hydrologically connected 6 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00078 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 14 groundwater into navigable waters cannot constitute an "addition of any pollutant to navigable waters from any point source" 33 U.S.C. 1362(12) (emphasis added). Third, a discharge that migrates through groundwater from a point source to navigable water is not an addition of a pollutant to navigable waters from a point source, as the plain text of the statute requires. It is an addition of a pollutant to groundwater from a point source. Thus, the addition of pollutants to navigable waters through hydrologically connected groundwater does not constitute an "addition of any pollutant to navigable waters from any point source," as the Plaintiffs' hydrological connection theory requires. 33 U.S.C. 1362(12). The possibility of a "hydrological connection" between groundwater and navigable waters is not "a sufficient ground of regulation." Village o f Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994) ("the statute Congress enacted excludes some waters, and ground waters are a logical candidate.") (emphasis in original). While the CWA does prohibit indirect discharges into navigable waters, those discharges must proceed from one distinct point source (e.g. a pipe) into another (e.g. a drainage ditch), which is designed or intended to channel water into navigable waters. See, e.g., Rapanos v. United States, 547 U.S. 715, 743 (2006) (plurality opinion) (collecting cases). As a result, migration of pollutants through groundwater 7 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00079 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 15 is not covered by the CW A's prohibition on indirect discharges because groundwater does not constitute a "point source" within the meaning of the statute. In short, the words "to" and "from" in the text of the CWA's definition of the term "discharge of [a] pollutant" unambiguously limit the statute's coverage to conveyance of pollutants (a) from a point source directly into navigable waters, or (b) from a point source through another point source into navigable waters. The Plaintiffs' interpretation of the CWA permits an end-run around the jurisdictional limitations embedded in the CWA's plain text. Even if Plaintiffs were correct that the statutory definition of "discharge of any pollutant" as the "addition of any pollutant to navigable waters from any point source" can be read to extend CWA jurisdiction to discharges carried to navigable waters through intermediaries that are not themselves point sources, this Court would still be required to reject the hydrological connection theory. 33 U.S.C. 1362(12) (emphasis added). Given the ubiquitous presence of groundwater in state lands, Plaintiffs' expansive reading of the CWA would authorize the federal government "to function as a de facto regulator of immense stretches of intrastate land." Rapanos, 547 U.S. at 738 (plurality opinion) (citation omitted). Such "an unprecedented intrusion into traditional state authority" requires a "clear and manifest statement from Congress," id., because authority over submerged lands and8 8 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00080 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 16 groundwater is an inherent incident of state sovereignty. See Tarrant Regional Water Dist., 133 S.Ct. at 2132. "The phrase `waters of the United States' hardly qualifies." Id. The same is true of the statutory definition of "discharge of any pollutant" as the "addition of any pollutant to navigable waters from any point source." 33 U.S.C. 1362(12) (emphasis added). This language cannot be said to clearly extend CWA jurisdiction to discharges that travel through non-point source intermediaries such as groundwater, because at minimum, it can just as easily be read to require that a discharge travel immediatelyfrom a point source to navigable waters. Thus, because the CWA contains no clear statement of Congressional intent to extend federal jurisdiction to discharges carried to navigable waters by groundwater, this Court should recognize the States' reserved power over intrastate water resources and interpret the CWA to leave the sovereign authority of the States undiminished. Indeed, far from authorizing the Plaintiffs' expansive interpretation of CWA jurisdiction, Congress's limitation of the A ct's scope to "waters of the United States" reflects a clear intention to respect the States' traditional authority over local land and water use. 33 U.S.C. 1362(7). Indeed, Congress expressly stated its purpose to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . . of land and water resources" in the text of the CWA. 33 U.S.C. 1251(b). This delineation of responsibilities between 9 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00081 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 17 the States and the federal government is a classic exercise in cooperative federalism: The federal government relies on experts at the state level to make the primary judgments about how best to ensure local water quality and to monitor compliance with those requirements. Expanding the scope of the CWA beyond its precise textual limits would upend this cooperative federalism scheme and "alter[ ] the federal-state framework by permitting federal encroachment upon a traditional state power" and raise "significant constitutional questions" about the validity of the CWA. SWANCC, 531 U.S. at 172-74. "Congress did not intend for the CWA to extend federal regulatory authority over groundwater, regardless of whether that ground water is eventually or somehow `hydrologically connected' to navigable surface waters." Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., 25 F. Supp. 3d 798, 810 (E.D.N.C. 2014). The CWA's legislative history confirms that Congress extensively considered whether to extend CWA jurisdiction to groundwater and determined that groundwater regulation should be left to the States. See Exxon Corp. v. Train, 554 F.2d 1310, 1325-29 (5th Cir. 1977). Although the Senate Committee on Public Works expressly recognized "the essential link between ground and surface waters and the artificial nature of any distinction," it expressly rejected, after "heated debate," an amendment that would have extended the CWA to groundwater. Id. at 1325, 27-29 (quoting S. Rep. No. 414, 92d Cong., 1st Sess. 73 (1971)). Instead, Congress determined that 10 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00082 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 18 regulation of groundwater should be left to the States, and this determination is reflected in the structure of the statute. Id. at 1325-29; see also Kelley ex rel. Mich. v. United States, 618 F. Supp. 1103, 1107 (W.D. Mich. 1985). As a consequence of the distribution of federal and state responsibilities present on the face of the statute, EPA has also recognized that safeguarding state authority to manage lands and waters is one of the primary goals in administering the CWA. The EPA has emphasized that the CWA "commands the [EPA] to pursue two policy goals simultaneously: (a) To restore and maintain the nation's waters; and (b) to preserve the States 'primary responsibility and right to prevent, reduce, and eliminate pollution!' 82 Fed. Reg. at 34900 (emphasis added). The position advocated by Plaintiffs would fundamentally alter this cooperative federalism regime. Instead of relying on States to regulate groundwater pollution, the hydrological connection approach would dramatically expand the scope of the NPDES permitting regime and the States' obligations under it. Respecting the balance of roles and policy goals that Congress adopted in the CWA is the best way to ensure the existence of strong environmental protection programs at both the state and federal levels. See, e.g., Catskill Mountains Ch. o f Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 514 (2d Cir. 2017) (the CWA "balances a welter of . . . goals, establishing a complicated scheme of federal regulation employing both federal and state implementation and supplemental state regulation. 11 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00083 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 19 In this regard, the Act largely preserves states' traditional authority over water allocation and use") (citation omitted). Finally, the hydrological connection theory is infinitely elastic and would mandate regulation of any land capable of absorbing water--essentially, any land within a State. Groundwater naturally migrates downhill, and because it is more likely than not that groundwater will, at some point, connect with navigable waters, reading a hydrological connection gloss onto the CWA could lead to a limitless expansion of federal power by requiring NPDES permits wherever groundwater eventually connects with navigable waters. In Rapanos, a plurality of the Supreme Court emphasized that the "plain language of the [CWA] simply does not authorize [a] `Land is Waters' approach to federal jurisdiction." 547 U.S. at 734 (opinion of Scalia, J.). The same logic requires the exclusion of groundwater from the scope of the CWA. Justice Kennedy's concurring opinion emphasized that wetlands adjacent to navigable waters fall under the CWA only if there is a "significant nexus" between them. Id. at 767 (Kennedy, J., concurring in the judgment). Both approaches presuppose a meaningful statutory distinction between waters that are--and are not-- subject to the CWA. It is hard to see what would remain of this distinction if CWA jurisdiction were held to extend to any water that is hydrologically connected to navigable waters.12 12 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00084 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 20 It is true that some courts have attempted to cabin the reach of the hydrological connection theory by requiring a "hydrologic connection between the source of the pollutants and navigable waters" that "is direct, immediate, and can generally be traced." Tennessee Clean Water Network v. Tennessee Valley Authority, 273 F. Supp. 3d 775, 827 (M.D. Tenn. 2017); see also Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17-1640, 2018 WL 1748154 (4th Cir. Apr. 12, 2018); Haw. Wildlife Fund v. Cty. o f Maui, 886 F.3d 737 (9th Cir. 2018). But this caveat has no grounding in the text of the CWA, and leaves all the critical questions unanswered. It does not begin to articulate what makes it the case that a hydrological connection is sufficiently "direct" and "immediate" for the CWA's prohibition on the discharge of pollutants to apply. Given the uncertainties inherent in such an open-textured and undefined standard, it is likely that regulated parties will feel compelled to seek an NPDES permit any time there is any risk that the use of their land will potentially result in the migration of pollutants through groundwater to navigable waters. It is highly unlikely that Congress intended these extreme results, and the text of the statute supplies no evidence that this is the case. Thus, this Court should affirm the lower court's decision.13 Sierra Club v. EPA 18cv3472 NDCA 13 Tier 2 ED 002061 00159776-00085 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 21 II. The Hydrological Connection Theory Dramatically Increases State Regulatory and Compliance Costs and Creates New, Unanticipated Costs for Regulated Parties. There is good reason not to upset the CWA's careful balance between state and federal powers: Extending the NPDES program to include discharges of pollutants to soils that are merely "hydrologically connected" to navigable waters would entail myriad practical difficulties, require States to take on significant new regulatory costs at the expense of existing environmental protection programs, and multiply the confusion that has long plagued CWA enforcement for regulators and citizens alike. A. The Hydrological Connection Theory Would Require an Impracticable Expansion of State NPDES Permitting Programs State NPDES programs do not currently offer permits for groundwater pollution, nor are these programs designed to do so. Expanding CWA liability to groundwater pollution would require a dramatic expansion of state NPDES programs beyond discharges from discrete conveyances to the entire network of underground capillaries that ultimately lead to navigable waters-- or else put States at risk of having the EPA revoke their authority to issue NPDES permits altogether. See 33 U.S.C. 1342(c)(3). But the States cannot complete such a novel NPDES permitting task with any certainty, and certainly not without taking on considerable and unjustifiable costs.14 14 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00086 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 22 NPDES permits issued by authorized state agencies contain precise discharge limits from specific point sources into covered water. Compliance with the terms of a permit is the prerequisite for avoiding liability. See, e.g., 33 U.S.C. 1311(a), 1342. But the degree of precision necessary to draft permits with clear compliance requirements would be nearly impossible to replicate with respect to groundwater discharges. It is one thing to issue a meaningful permit regulating discharges from a pipe into navigable waters. But how would a state agency issue a pennit for a flow, seep, or fissure, as the hydrological connection theory requires? As pollutants migrate through state lands, would a permit need to be constantly amended? Where would the monitoring outfalls be placed along the groundwater's route to ensure compliance, and how many would be required to account for the full depth and breadth of seepage as pollutants migrate through the earth? Groundwater may or may not seep through many feet of soil and take multiple directions before ultimately reaching surface water, and the trajectory and speed of groundwater flow depends on geography and gravity, not design. These factors would make it extremely difficult to draft a permit with precise discharge parameters or monitor compliance. At minimum, States would be required (at great cost) to undertake significant environmental impact studies into the many newly covered sources of pollution in order to develop data sufficient to regulate with any degree of precision, coherence, and conformity with established scientific principles. 15 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00087 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 23 The struggle to regulate this expanded realm of CWA permitting would place an untenable strain on the environmental protection resources of the States. At present, the time and costs for States to administer NPDES permitting programs and otherwise satisfy the requirements of the CWA already require an estimated $83 million in annual labor costs and 1.8 million hours per year. See EPA ICR Supporting Statement, Information Collection Request for National Pollutant Discharge Elimination System (NPDES) Program (Renewal), OMB Control No. 2040-0004, EPA ICR No. 0229.22 at 23 tbl. 12.1 (Sept. 2017). The broad expansion ofNDPES programs mandated by the extension of CWA jurisdiction to groundwater could cause these costs to skyrocket. Even before processing the hundreds or thousands of new permitting applications States are likely to receive, States might be required to establish water quality standards ("WQS") for groundwater throughout their territory based on its potential hydrological connection to navigable waters. Currently, States are required to establish WQS for each body of water that falls under the definition of "waters of the United States." See 33 U.S.C. 1311(b)(1)(C), 1313(e)(3)(A); 40 C.F.R. 130.3, 131.3(i), 131.4(a). But if a hydrological connection is sufficient to trigger CWA liability for groundwater discharges, States will potentially be required to expand their WQS standards as well and study those "waters" to determine whether current standards should apply, or whether new WQS standards should be issued. 16 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00088 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 24 See 33 U.S.C. 1313(c)(4). States then have a continuing duty to revise their WQS as environmental conditions change, 33 U.S.C. 1313(c)(3), and must submit biennial water quality reports to the EPA, 33 U.S.C. 1315(b)(l)(A)-(B). If these duties were expanded to encompass potentially all of a State's groundwater, state compliance burdens could rise exponentially. Ultimately, the hydrological connection theory of CWA jurisdiction could require States to devote astronomical resources from already scarce budgets to administer an accurate and timely NPDES permitting regime that extends to all discharges into groundwater with a hydrological connection to navigable waters. This would not only be expensive in its own right--it would also carry a significant opportunity cost, as States could be forced to divert resources away from other state programs that, as discussed below, already protect state waters from groundwater pollution. See infra Part III.B. B. The Hydrological Connection Theory Would Impose New and Increased Compliance Costs on Regulated Parties The difficulties of administering the hydrological connection theory of CWA jurisdiction would also dramatically increase compliance costs for regulated parties seeking to shield themselves from liability and further complicate an already thorny and uncertain area of law. As is, the "systemic consequences" of the CWA can be "crushing" "to landowners for even inadvertent violations." Hawkes, 136 S.Ct. at 1816 (Kennedy, 17 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00089 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 25 J., concurring). The CWA's reach is "notoriously unclear," and "[a]ny piece of land that is wet at least part of the year is in danger of being classified as [navigable waters]." Sackett v. EPA, 566 U.S. 120,132 (2012) (Alito, J., concurring). Adopting the hydrological connection theory would go even further, making it likely that planned or accidental discharges onto any piece of land could trigger liability under the CWA. Unlike discharges into a ditch, tunnel, or similarly discrete conveyance that leads to navigable waters, regulated parties do not have direct control over where, how long, and how far a discharge into groundwater will disperse. Thus, it would be extremely difficult for covered parties to take precautions to ensure that they meet prescribed NPDES permitting requirements for groundwater discharges. The hydrological connection theory would put States in the untenable position of administering an unwieldy and time-consuming permitting program that may prove challenging for even the most diligent parties to meet. Given that essentially any groundwater may eventually migrate to navigable waters, individuals and companies will likely find it prudent to seek NPDES permits for essentially every discharge that might find its way into groundwater. This would result in the imposition of immense compliance costs on regulated parties. As the Supreme Court has recently emphasized, the NPDES permitting process is "arduous, expensive, and long." U.S. Army Corps o f Engineers v. Hawkes Co., 136 S.Ct. 1807, 1815 (2016). Permits issued by the Army Corps of Engineers for more complex 18 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00090 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 26 regimes--which may be more akin to the type of new regulated sources that would be covered by the Plaintiffs' theory-- can involve even greater costs and waits. There, the process to obtain an "individual" pennit can take "788 days and $271,596," and even "more readily available `general' permits," take "313 days and $28,915 to complete" on average. Id. at 1812. Here, where individuals and businesses may be required to seek permits for discharges into even indisputably non-navigable groundwater, the aggregate compliance costs imposed on regulated parties could skyrocket. Finally, widespread adoption of the hydrological connection theory would dramatically increase the number of parties regulated by the CWA. The implications of the Plaintiffs' theory would radiate far beyond the parties in this appeal and encompass many new sources of nonpoint source pollution that have never been understood to fall within the coverage of the CWA. States would likely be required to permit and monitor all of them. For instance, personal septic tanks typically discharge pollutants into groundwater, but their owners have not historically had to apply for NPDES permits. But under the Plaintiffs' theory, individual owners would be required to apply for a permit whenever the groundwater surrounding a septic tank is hydrologically connected to navigable waters. The potential scale of these new burdens is massive. The EPA estimates that 25% of American homes use septic systems that discharge more than 4 billion gallons of wastewater into the soil every 19 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00091 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 27 day.2 And the concern that septic tanks could become a new source of CWA litigation is not merely speculative: the EPA has already received complaints arguing that States should be required to include septic tanks in their NPDES programs.3 Similarly, owners of large parking lots could find themselves subject to CWA citizen suits. Storm water mixes with petroleum products discharged by cars parked on pavement, and the runoff may make its way into ditches and surrounding soil before seeping into the groundwater. The same logic would extend CWA jurisdiction to government agencies and municipalities that own stretches of roads. As with personal septic tanks, storm water runoff has attracted attention as a potential source ofNPDES liability under the CWA.4 The same analysis could apply to untold other sources of potential liability, including accident sites where a ruptured fuel tank causes a leak into groundwater, irrigation systems, underground storage tanks that spring a leak, and more. 2 See Envtl. Prot. Agency, A H omeowner's Guide to Septic Systems 5 (2005), available at https://ww3/epa/gov.npdes/pubs/jomeowner_guide_long.pdf. 3Envtl. Prot. Agency, Initial Results o f a Review o f the National Pollutant Discharge Elimination System Program in the State o fMinnesota, at 5 (May 2013), available at https://www.epa.gov/sits/production/files/201704/documents/mn_petition_report_may-03-2013updated.pdf (alleging in part that Minnesota failed to establish and enforce an effective NPDES pennitting program for over 55,000 septic systems). 4 See Petition, Am. Rivers et al., Petition for a Determination that Stormwater Discharges from Commercial, Industrial, and Institutional Sites Contribute to Water Quality Standards Violation and Require Clean Water Act Permits (July 10, 2013), available at https://www.clf.org/wp-content/uploads/2013/07/RDAPetition-WQS-Violations-REGION-I-FINAL-7-13.pdf. 20 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00092 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 28 In sum, adoption of the hydrological connection theory would dramatically increase CWA and NPDES compliance costs for both individuals and businesses, while saddling a host of new parties with novel regulatory burdens. As a result, this Court should affirm the lower court's decision rejecting this theory. IIL Extending the CWA's Scope Is Unnecessary to Address Groundwater Pollution Beyond the heavy costs of expanding the NPDES permitting regime to include discharges into groundwater, this Court should affirm the district court's decision because there is no need to adopt the hydrological connection theory to ensure that groundwaters are adequately protected from pollution. The NPDES structure is illsuited to regulate discharges into groundwater, as explained above, but there are numerous federal and state programs that are better tailored to address groundwater pollution. These existing laws and programs render the extension of CWA jurisdiction to hydrologically connected groundwater unnecessary. See Catskill Mountains, 846 F.3d at 529 (finding narrower interpretation of CWA reasonable in part because "several alternatives could regulate pollution .. . even in the absence of an NPDES permitting scheme"). A. Other Federal Statutes Provide Alternative Methods of Addressing Groundwater Pollution There are already federal statutes in place that regulate the migration of pollutants through groundwater. To take one example, the federal government may 21 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00093 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 29 file a lawsuit under the Resource Conservation and Recovery Act ("RCRA") against "any person" when there is evidence that any handling or disposal of solid or hazardous waste, past or present, "may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. 6973(2). Congress designed RCRA to deal with situations in which "regulatory schemes break down or have been circumvented" and "expressly intended that this and other language of the Act [would] close loopholes in environmental protection." United States v. Waste Indus., Inc., 734 F.2d 159, 164-65 (4th Cir. 1984). Indeed, the EPA has exercised its authority to regulate the disposal of solid waste under the RCRA by promulgating a rule establishing minimum national standards for the disposal of coal combustion residuals ("CCR") generated by electric utilities and independent power producers, like the pollutants at issue in this case. See Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities, 80 Fed. Reg. 21,302 (Apr. 17, 2015), 2010 WE 2470432 ("CCA Rule"); 40 C.F.R. 257.50-257.107. Under this rule, any existing unlined CCR surface impoundment that is contaminating groundwater above a groundwater protection standard established by the EPA must stop receiving CCR and either retrofit or close, except in limited circumstances. 40 C.F.R. 257.71; id. 257.101. All applicable regulatory requirements apply even to CCR2 22 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00094 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 30 surface impoundments that do not receive CCR after the effective date of the rule, but still contain water and CCR. CCR Rule, 81 Fed. Reg. at 51,802. In addition, the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") grants federal authority to order removal of pollutants or other remedial action whenever any "hazardous substance is released or there is a substantial threat of such a release into the environment." 42 U.S.C. 9604(a)(1). Congress defined releases of hazardous substances extremely broadly in CERCLA. See 42 U.S.C. 9601(22) ("The term `release' means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment"). "Environment" is defined in similarly expansive terms: Unlike the CWA, it includes "navigable waters" and "any other surface water, ground water, drinking water supply, land surface, or subsurface strata, or ambient air within the United States." 42 U.S.C. 9601(8) (emphasis added). In other words, CERCLA provides direct authority to remediate situations like the one involved in this case, in which CCRs allegedly leached into groundwater, without the need to shoehorn the facts into the comparatively narrow elements of a CWA action. The existence of these regulatory regimes fatally undermines any contention that the federal government would be powerless to address the migration of pollutants from CCR surface impoundments and similar threats to the environment23 23 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00095 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 31 without the extension of CWA jurisdiction to hydrologically connected groundwaters. B. State Law Provides Other M echanisms to Address Groundwater Pollution Mechanisms to redress pollution of groundwater are even more abundant at the state level. Under the CWA, States establish total maximum daily loads ("TMDLs") to regulate pollutants in state waters. See, e.g., 33 U.S.C. 1313(d)(1)(C). The EPA also provides States with information regarding "processes, procedures, and methods to control pollution" to assist the States in fulfilling their responsibility to regulate nonpoint source pollution within their borders. 33 U.S.C. 1314(f). And the States expressly retain the "right" to expand their NPDES programs or to "adopt or enforce" other environmental standards-- including standards governing discharged into groundwater--where they determine that the CWA is insufficient to protect state lands and waters. See 33 U.S.C. 1370. States have long exercised their power to protect state waters independent of the CWA's basic requirements for NPDES permitting programs. Kentucky law, for example, directly addresses the discharge of pollutants into groundwater, providing that "no person shall, directly or indirectly . . . discharge into any of the waters of the Commonwealth . . . any pollutant, or any substance that shall cause or contribute to the pollution of the waters of the Commonwealth" except as authorized by state regulatory authorities. KRS 224.70-110. The applicable statutory definition of 24 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00096 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 32 "waters" and "waters of the Commonwealth" explicitly includes "underground water." Id. 224.1-010. Kentucky has also created a complex non-NPDES regime designed to protect current and future uses of groundwater, prevent groundwater pollution, and provide remedial measures to address discharges into state groundwater. See, e.g., 401 KAR 5:037 (groundwater protection plans); 401 KAR 100:030 (remediation requirements); 401 KAR Chapter 46 (coal combustion residuals program); 401 KAR Chapter 45 (special waste permits). Other States in this Circuit enforce similar laws, including--but not limited to--the following: Michigan law provides that a "person shall not directly or indirectly discharge into the waters of the state a substance that is or may become injurious" to a broad array of interests, including public health, commercial, industrial and agricultural land uses, and the protection of wild flora and fauna. M.C.L. 324.3109(1). The term "waters of the state" is explicitly defined to include "groundwaters . . . within the jurisdiction of this state." M.C.L. 324.3101(aa). Ohio law makes it unlawful for any person to "cause pollution or place or cause to be placed any sewage, sludge, sludge materials, industrial waste, or other wastes in a location where they cause pollution of any waters of the state." R.C. 6111.04(A)(1); see also id. 6111.01 (defining "waters of the state" to include all "bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the strata in which underground water is located . .. except those private waters that do not combine or effect a junction with natural surface or underground waters"). Tennessee law renders it "unlawful for any person to discharge any substance into the waters of the state" where such substances qualify as statutorily defined pollutants and the discharge was not "properly authorized" by state authorities. T.C. 69-3-114(a); see also id. 69-325 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00097 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 33 103 (defining "pollutant"), the applicable statutory definition of "waters" includes "any and all water, public or private, on or beneath the surface o f the ground, that are contained within, flow through, or border upon Tennessee " Id. 69-3-103 (emphasis added). These and other laws provide important regulatory checks on groundwater pollution. There is thus no merit to any claim that rewriting the CWA to cover hydrologically connected groundwaters is necessary to avoid pollution of state groundwater and the nation's waterways. Accordingly, this Court should respect the jurisdictional limitations embodied in the text of the CWA and affirm the district court's decision below. CONCLUSION For the foregoing reasons, the Court should affirm the judgment of the district court. Respectfully submitted, STEVE. MARSHALL Ala. Attorney General /s/ Eric M. Palmer Eric M. Palmer Ala. Assistant Solicitor General State of Alabama Office of the A ttorney General 501 Washington Avenue Montgomery, AL 36130 (334) 242-7300 Counselfo r Amicus Curiae State o fAlabama26 26 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00098 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 34 COUNSEL FOR ADDITIONAL AM IC I Leslie Rutledge Attorney General of Arkansas Mike Hunter Attorney General of Oklahoma Christopher M. Carr Attorney General of Georgia Alan Wilson Attorney General of South Carolina Curtis T. Hill, Jr. Attorney General of Indiana Ken Paxton Attorney General of Texas Derek Schmidt Attorney General of Kansas Sean D. Reyes Attorney General of Utah Andy Beshear Attorney General of Kentucky Patrick Morissey Attorney General of West Virginia Jeff Landry Attorney General of Louisiana Brad Schimel Attorney General of Wisconsin Joshua D. Hawley Attorney General of Missouri Peter K. Michael Attorney General of Wyoming Timothy C. Fox Attorney General of Montana Doug Peterson Attorney General of Nebraska Roy Furrh General Counsel Mississippi Department of Environmental Quality Sierra Club v. EPA 18cv3472 NDCA 27 Tier 2 ED 002061 00159776-00099 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 35 CERTIFICATE OF COMPLIANCE 1. This document complies with the length limit of Fed. R. App. P. 29(a)(5) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) and Fed. R. App. P. 27(a)(2)(B), this document contains 5,918 words. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Times New Roman. Dated: May 4th, 2018 /s/ Eric M. Palmer Eric M. Palmer Ala. Assistant Solicitor General State of A labama Office of the A ttorney G eneral 501 Washington Avenue Montgomery, AL 36130 (334) 242-7300 (334) 242-4891 (fax) Counsel fo r Amicus Curiae State o fAlabama28 Sierra Club v. EPA 18cv3472 NDCA 28 Tier 2 ED 002061 00159776-00100 Case: 18-5115 Document: 41 Filed: 05/04/2018 Page: 36 CERTIFICATE OF SERVICE I certify that on May 4, 2018, I electronically filed this document using the Court's CM/ECF system, which will serve an electronic copy on all registered counsel of record. /s/ Eric M. Palmer______ Eric M. Palmer Ala. Assistant Solicitor General29 Sierra Club v. EPA 18cv3472 NDCA 29 Tier 2 ED 002061 00159776-00101 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 1 of 37 Total Pages:(l of 38) No. 17-1640 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Upstate Forever and Savannah Riverkeeper, Plaintiffs-Appellants, V. Kinder Morgan Energy Partners, L.P. and Plantation Pipe Line Company, Inc., Defendants-Appellees, On Appeal from the United States District Court for the District of South Carolina, Anderson Division Case No. 8:16-cv-04003, Honorable Henry M. Herlong, Jr. BRIEF OF AMICI CURIAE THE STATE OF WEST VIRGINIA, THE STATE OF SOUTH CAROLINA, NINE OTHER STATES, AND THE GOVERNOR OF MISSISSIPPI SUPPORTING DEFENDANTS-APPELLEES AND AFFIRMANCE ALAN WILSON ATTORNEY GENERAL Robert Cook Solicitor General J. Emory Smith, Jr. Deputy Solicitor General Office of the Attorney General P.O. Box 11549 Columbia, SC 29211 Telephone: (803) 734-3642 Counselfo r Amicus Curiae the State o f South Carolina PATRICK MORRISEY ATTORNEY GENERAL Thomas M. Johnson, Jr. Deputy Solicitor General Counsel o fRecord John S. Gray Deputy Attorney General State Capitol Building 1, Room 26-E Charleston, WV 25305 Telephone: (304) 558-2021 Email: Thomas.M.JohnsonJr@ wvago.gov Counselfo r Amicus Curiae the State o f West Virginia Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00102 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 2 of 37 Total Pages:(2 of 38) TABLE OF CONTENTS Page INTEREST AND IDENTITY OF A M IC I.....................................................................1 I N T R O D U C T IO N ............................................................................................................2 ARGUM ENT.................................................................................................................... 4 I. The Hydrological Connection Theory Of CWA Jurisdiction Violates The CWA's Text And Principles Of Cooperative Federalism.................................4 II. The Hydrological Connection Theory Would Be Unworkable In Practice And Would Put An Untenable Strain On State Resources............................ 11 III. Extending The CWA's Scope Is Unnecessary To Redress Groundwater Or Nonpoint Source Pollution And To Hold Negligent Actors Accountable... 18 CONCLUSION.............................................................................................................. 28 Sierra Club v. EPA 18cv3472 NDCA l Tier 2 ED 002061 00159776-00103 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 3 of 37 Total Pages:(3 of 38) TABLE OF AUTHORITIES Page(s) Cases 26 Crown Assocs., LLC v. Greater New Haven R e g 'l Water Pollution Control Auth., 2017 WL 2960506 (D. Conn. July 11, 2017)............................................................5 Catskill Mountains Ch. o f Trout Unlimited, Inc. v. ERA, 846 F.3d 492 (2d Cir. 2 0 1 7 ).............................................................................. 10, 19 Christensen v. Harris Cty., 529 U S. 576 (2000)...................................................................................................... 6 FERC v. Mississippi, 456 U.S. 742 (1982)...................................................................................................... 9 Gwaltney o f Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987)...................................................................................................... 26 McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir. 1995).......................................................................................26 N. Shore Gas Co. v. ERA, 930 F.2d 1239 (7th Cir. 1991)...................................................................................26 Piney Run Preservation v. Carroll County, 523 F.3d 453 (4th Cir. 2 008).......................................................................23, 25, 26 Rapanos v. United States, 547 U.S. 715 (2006)......................................................................................4, 7, 8,10 Sackett v. EPA, 566 U.S. 120 (2012).................................................................................................... 18 Solid Waste Agency ofN. Cook Cnty. v. U.S. Army Corps o f Eng 'rs, 531 U.S. 159 (2001).................................................................................................... 9 U.S. Army Corps o f Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016)........................................................................................ 17,18i ii Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00104 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 4 of 37 TABLE OF AUTHORITIES (continued) United States v. Waste Indus., Inc., 734 F.2d 159 (4th Cir. 1984).............................................. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 2017 WL 2266875 (D.S.C. Apr. 20, 2017)...................... Village o f Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994).............................................. Statutes 33 U.S.C. 101........................................................................ 33 U.S.C. 1251...................................................................... 33 U.S.C. 1311...................................................................... 33 U.S.C. 1313...................................................................... 33 U.S.C. 1314...................................................................... 33 U.S.C. 1315...................................................................... 33 U.S.C. 1321...................................................................... 33 U.S.C. 1342...................................................................... 33 U.S.C. 1362...................................................................... 33 U.S.C. 1365...................................................................... 33 U.S.C. 1370...................................................................... 42 U.S.C. 6973...................................................................... 42 U.S.C. 9601...................................................................... 42 U.S.C. 9604...................................................................... 42 U.S.C. 9 6 1 3 ...................................................................... in Sierra Club v. EPA 18cv3472 NDCA Tier 2 Total Pages:(4 of 38) Page(s) ..........20 ......... 22 ............6 ............ 7 ............ 9 4, 12,15 .... 15,21 .......... 22 .......... 15 ...20,21 ... 11,12 ........ 4, 9 ............ 5 ..........22 .......... 20 ... 19,20 .......... 19 .......... 26 ED 002061 00159776-00105 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 5 of 37 Total Pages:(5 of 38) TABLE OF AUTHORITIES (continued) Page(s) Md. Code Ann., Envir. 9-101..................................................................................... 24 Md. Code Ann., Envir. 9-322 ................................................................................... 24 N.C. Gen. Stat. Ann. 143-212.................................................................................... 25 N.C. Gen. Stat. Ann. 143-215.1.................................................................................25 S.C. Code 48-1-90............................................................................................... 22,23 S.C. Code 48-1-240..................................................................................................... 23 Va. Code 6 2 .1 -1 0 ........................................................................................................ 24 Va. Code 62.1-44.5..................................................................................................... 24 W. Va. Code Ann. 22-11-3........................................................................................ 23 W. Va. Code Ann. 22-11-8........................................................................................ 23 W. Va. Code Ann. 22-12-4........................................................................................ 24 Rules 40 C.F.R. 130.3............................................................................................................15 40 C.F.R. 131.3............................................................................................................15 40 C.F.R. 131.4............................................................................................................15 Fed. R. App. P. 2 9 (a)........................................................................................................1 S.C. Regs. 61-92 280.60 et seq.................................................................................. 23 Other Authorities 82 Fed. Reg. 3633 (Jan. 15, 2017)................................................................................ 17 82 Fed. Reg. 34,899 (July 27, 2017)..........................................................................7, 9 Envtl. Prot. Agency, A Homeowner's Guide to Septic Systems (2005)................... 13 iv Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00106 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 6 of 37 Total Pages:(6 of 38) TABLE OF AUTHORITIES (continued) Page(s) Envtl. Prot. Agency, Initial Results o f a Review o f the National Pollutant Discharge Elimination System Program in the State ofM innesota (May 2013).13 EPA ICR Supporting Statement, Information Collection Request for National Pollutant Discharge Elimination System (NPDES) Program (Renewal), OMB Control No. 2040-0004, EPA ICR No. 0229.21 (Dec. 2 0 1 5 )............................... 15 Petition, Am. Rivers et al., Petition for a Determination that Stonnwater Discharges from Commercial, Industrial, and Institutional Sites Contribute to Water Quality Standards Violation and Require Clean Water Act Permits (July 10 ,2013)............................................................................................................. 14 Va. Dep't. of Envtl. Quality, VPDES Permits, Fees, and Regulations (Sep. 9, 2017)............................................................................................................... 17 W. Va. Dep't. of Envtl. Prot., National Pollutant Discharge Elimination System (NPDES) Individual Permits (Sep. 7, 2017)........................................................... 17 Sierra Club v. EPA 18cv3472 NDCA v Tier 2 ED 002061 00159776-00107 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 7 of 37 Total Pages:(7 of 38) INTEREST AND IDENTITY OF AM ICI The States of West Virginia, South Carolina, Arkansas, Alabama, Indiana, Kansas, Louisiana, Missouri, Oklahoma, Utah, Wisconsin, and the Governor of the State of Mississippi file this brief under Rule 29(a) of the Federal Rules of Appellate Procedure.1 Amici States have a significant interest in the outcome of this case, because the result Appellants Upstate Forever and Savannah Riverkeeper seek-- an unprec edented and unwarranted expansion of federal jurisdiction and the National Pollutant Discharge Elimination System ("NPDES") permitting regime under the Clean Water Act ("CWA")--would undermine the cooperative federalism structure on which the CWA is premised while introducing significant complexity and costs into the States' water-quality efforts under both the CWA and independent state laws. Amici States appreciate the importance of protecting state and national waters, and have long exercised their traditional authority to regulate in this sphere. Under the CWA, States retain responsibility and jurisdiction over land and water resource protection, and are often at the tip of the corrective action spear when enforcement of state and federal environmental laws and supervision of cleanup and mitigation efforts is required. Amici believe, however, that judicially expanding the scope of 1 A State may "file an amicus-curiae brief without the consent of the parties or leave of court." Fed. R. App. P. 29(a). 1 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00108 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 8 of 37 Total Pages:(8 of 38) the NPDES regime as Appellants urge would violate the CWA's text and, contrary to Congress's intent, erode the States' role as the principal regulators and protectors of local land and water resources. Moreover, amici are concerned that the result of this federal jurisdictional creep will not be more aggressive environmental cleanup actions, but rather an unwarranted expansion of the NPDES program--with its costly and time-consuming requirements--to scores of new lands and water sources that the program was not designed to address. Navigating these complexities will exponentially increase costs and administrative burdens on States and their agencies tasked with implementing state and federal environmental laws without materially improving environmental quality. In turn, these burdens could divert resources from existing state enforcement efforts and emergency clean-up measures, while opening the States to the specter of liability from a plethora of new citizen suits seeking en forcement of these new, atextual duties. INTRODUCTION In the CWA, Congress struck a balance between state and federal environ mental enforcement in a cooperative effort to protect the nation's waterways. The CWA prohibits discharges from discrete "point sources" like pipelines into waters of the United States, but leaves to the States regulation of other, nonpoint source pollution that affects state waters. The oil leak at issue here occurred on intrastate land, with some pollutants-- eventually and indirectly--making their way to waters 2 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00109 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 9 of 37 Total Pages:(9 of 38) of the United States by seeping into the ground and migrating through the groundwater. Under the plain text of the statute, the CWA does not apply. Nevertheless, Appellants seek an end-run around the statutory text by trying to persuade this Court to adopt what Congress has declined to do-- and by advancing an expansive theory of CWA jurisdiction at the same time that the EPA is actively reconsidering expansive jurisdictional theories adopted by the prior administration. Appellants' "hydrological connection" theory is unsupported by the text and would lead to limitless expansion of federal jurisdiction, effectively erasing the distinctions between state and federal authority that are baked into the CWA's very structure. Further, expanding the CWA's scope as Appellants urge would introduce un warranted complications and complexities as States try to administer a behemoth of new regulatory duties. The uncertainties endemic to this approach would make it impossible for States to regulate with certainty in these new areas, and could drain resources from other environmental and water-quality programs that play a vital role in protecting the nation's natural resources. Finally, there is no need for this dramatic expansion of CWA jurisdiction, because both the federal government and the States already have broad and sufficient authority to remedy accidental spills like this, as well as other threats to groundwater and intrastate resources. This Court should not open the way for countless citizen suits, like this one, that will do nothing more than second-guess States' environmental remedial efforts 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00110 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 10 of 37 Total Pages:(10 of 38) while multiplying administrative burdens for the States, compounding uncertainties for regulated entities in an already complex area, and rendering the States less equipped to enforce existing environmental laws. ARGUMENT I. The Hydrological Connection Theory Of CWA Jurisdiction Violates The CWA's Text And Principles Of Cooperative Federalism. A. In the CWA, Congress granted limited authority to federal agencies to regulate the discharge of pollutants into "navigable waters," or "the waters of the United States, including the territorial seas " 33 U.S.C. 1362(7). Specifically, the CWA makes unlawful "the discharge of any pollutant" without an NPDES permit. 33 U.S.C. 1311(a). Under the CWA, pollution either emanates from a "point source" to navigable waters, in which case an NPDES permit is required, or is non point source pollution, which requires no permit. See 33 U.S.C. 1362(12) (defining "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source"). A "point source," in turn, is defined as "any discernible, confined and discrete conveyance," and includes (but is not limited to) pipes, ditches, chan nels, tunnels, and similar conduits. 33 U.S.C. 1362(14). While the CWA also pro hibits indirect discharges into navigable waters, those discharges must proceed from one distinct point source (i.e., a pipe) into another (i. e., a drainage ditch), which is designed or intended to flow into navigable waters. See, e.g., Rapanos v. United States, 547 U.S. 715, 743 (2006) (plurality opinion) (collecting authorities). 4 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00111 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 11 of 37 Total P ages:(ll of 38) Appellants brought this challenge under the CWA's citizen-suit provision, which allows individuals to bring a lawsuit against any person for designated CWA violations, including violations of NPDES permitting standards. 33 U.S.C. 1365(a)(1). Appellants allege that petroleum and other pollutants released at the spill site constituted an unlawful point source discharge; even though the oil leaked into the ground, not into navigable waters, Appellants argue it is enough that some pollutants eventually made their way to navigable waters through the groundwater. Appellants do not suggest that groundwater itself constitutes navigable waters. See Appellants Br. 18-19. Nor could they: "It is basic science that ground water is widely diffused by saturation within the crevices of underground rocks and soil," and "[a]bsent exceptional proof of something akin to a mythical Styx-like subterranean river," "passive migration of pollutants" through groundwater is not discharge from a point source. 26 Crown Assocs., LLC v. Greater New Haven Reg 7 Water Pollution Control Auth., 2017 WL 2960506, at *8 (D. Conn. July 11, 2017). Instead, Appellants argue that the distance between the spill site and the near est navigable waters does not take this case outside the CWA's purview because the groundwater is purportedly "hydrologically connected" to waters of the United States. Either, the argument goes, the flows, seeps, and fissures through which Sierra Club v. EPA 18cv3472 NDCA 5 Tier 2 ED 002061 00159776-00112 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 12 of 37 Total Pages:(12 of 38) groundwater migrates are themselves point sources, or the CWA should be inter preted to include groundwater that is connected to navigable waters in the sense that the groundwater eventually flows into them. Amici States agree with and incorporate by reference Kinder Morgan's legal arguments showing that the CWA cannot support either interpretation. Appellees Br. 31-45;see also, e.g., Village o f Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994) ("The possibility of a hydrological connection" is not "a sufficient ground of regulation."). As the district court correctly concluded, either prong of the hydrological connection theory would run counter to the text of the CWA and undermine the purposes and structure of the statute. Essentially, Appellants are asking this Court for an end-run on the jurisdic tional limits embedded in the CWA's text. Appellants (at 21-22) take cover in a position that the EPA has advanced in recent years, most prominently in an amicus brief in May 2016 in a still-pending Ninth Circuit case, in which it argued that the CWA requires regulation of groundwater with a direct hydrological connection to navigable waters. See Dkt. No. 40, Case No. 15-17447, Hawaii Wildlife Fund et al. v. Cnty. O f Maui (9th Cir. 2016). This litigation position, however, has never been subjected to rigorous notice-and-comment review, and thus, is owed no deference. See Christensen v. Harris Cty, 529 U.S. 576, 587 (2000). Sierra Club v. EPA 18cv3472 NDCA 6 Tier 2 ED 002061 00159776-00113 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 13 of 37 Total Pages:(13 of 38) Moreover, the EPA has recently made clear that it intends to engage in rulemaking that suggests that the current administration would reconsider that position. See 82 Fed. Reg. 34,899 (July 27, 2017). The EPA's proposed rule expressly recog nizes the need to balance the CWA's goals to "restore and maintain" integrity of the nation's waters with the need to "recognize, preserve, and protect the primary re sponsibilities and right of States to prevent, reduce, and eliminate pollution." Id. at 34,901 (citing 33 U.S.C. 101(a)-(b)). It also announced the EPA's intention to "conduct a separate notice and comment rulemaking that will consider developing a new definition of `waters of the United States' taking into consideration the princi ples that Justice Scalia outlined in the Rapanos plurality opinion," id. at 34,902-- that is, that navigable waters under the CWA include only "relatively permanent, standing or continuously flowing bodies of water" that are connected to traditional navigable waters and wetlands with a "continuous surface connection" to such wa ters. Rapanos, 547 U.S. at 739,742 (opinion of Scalia, J.). This proposed rulemaking signals the EPA's intent to leave no room for a theory that the definition of "waters of the United States" or the related definition of "point source" could encompass groundwater with a mere hydrological connection to navigable waters. Further, the hydrological connection approach is an infinitely elastic theory that would lead to regulating any land capable of absorbing water-- essentially, any land within a State. Groundwater naturally migrates downhill, but that is hardly the 7 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00114 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 14 of 37 Total Pages:(14 of 38) same thing as traveling through a "confined and discrete conveyance" akin to a pipe, tunnel, or aqueduct. And because it is more likely than not that groundwater will, at some point, connect with navigable waters, reading a hydrological connection gloss onto the CWA could lead to a limitless expansion of federal power by requiring NPDES permits wherever groundwater eventually connects with navigable waters. In Rapanos, a plurality of the Supreme Court emphasized that the "plain language of the [CWA] simply does not authorize [a] `Land is Waters' approach to federal jurisdiction." 547 U.S. at 734 (opinion of Scalia, J.). And, while amici States do not agree with his approach, Justice Kennedy in his concurring opinion underscored that waters adjacent to navigable waters may fall under the CWA only where there is a "significant nexus" between them. Id. at 767 (Kennedy, J., concurring in the judg ment). Both approaches are adamant that there is a meaningful statutory distinction between waters that are-- and are not-- subject to the CWA. See, e.g., id. ("Absent a significant nexus, jurisdiction under the Act is lacking."). Appellants' approach would all-but erase that distinction. B. More fundamentally, the hydrological connection theory would expand federal authority at the expense of the States' traditional power to regulate state wa ters, in ways that the text of the CWA does not support and Congress did not intend. The Tenth Amendment reserves all powers not delegated to the United States by the Constitution to "the States respectively, or to the people." U.S. Const, amend. 8 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00115 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 15 of 37 Total Pages:(15 of 38) X. State authority to regulate and manage local lands and waters is a core sovereign interest; indeed, it "is perhaps the quintessential state activity." FERC v. Mississippi, 456 U.S. 742, 767 n.30 (1982). Consistent with this principle, Congress enacted the CWA with respect for States' inherent powers over local lands and water resources by limiting the A ct's scope to "waters of the United States." See 33 U.S.C. 1362(7), (12). Congress also expressly stated its purpose to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . . of land and water resources." 33 U.S.C. 1251(b). This delineation of responsibilities between the States and the federal government is a classic exercise in cooperative federalism: The federal government relies on experts at the state level to make the primary judgments about how best to ensure local water quality and to monitor compliance with those requirements. The Supreme Court has similarly recognized that the States' "traditional and primary power of land and water use" requires a precise reading of the CWA: To expand the scope of the Act beyond its textual limits would "alter[] the federal-state framework by permitting federal encroachment upon a traditional state power" and raise "significant constitutional questions" about the validity of the CWA. Solid Waste Agency o fN. Cook Cnty. v. U.S. Army Corps o f E n g 'rs, 531 U.S. 159, 172-74 (2001). Indeed, Justice Scalia's plurality opinion in Rapanos rejected an expansive reading of the CWA that would have authorized the federal government "to function 9 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00116 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 16 of 37 Total Pages:(16 of 38) as a de facto regulator of immense stretches of intrastate land," because such "an unprecedented intrusion into traditional state authority" requires a "clear and mani fest statement from Congress." Rapanos, 547 U.S. at 738 (opinion of Scalia, J.) (ci tation omitted). The phrase, "waters of the United States" "hardly qualifies." Id. Even the EPA has recognized that safeguarding state authority to manage lands and waters is one of its primary goals in administering the CWA: The EPA emphasized that the CWA "commands the [EPA] to pursue two policy goals simul taneously: (a) To restore and maintain the nation's waters; and (b) to preserve the States 'primary responsibility and right to prevent, reduce, and eliminate pollution.''' 82 Fed. Reg. at 34900 (emphasis added). The position Appellants advocate would fundamentally alter this cooperative fed eralism regime. Instead of relying on States to regulate groundwater and nonpoint source pollution, the hydrological connection approach would dramatically expand the scope of the NPDES permitting regime and the States' obligations under it. Re specting the balance of roles and policy goals that Congress chose in the CWA is the best way to ensure strong environmental-protection programs at both the state and federal levels. See, e.g., Catskill Mountains Ch. o f Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 514 (2d Cir. 2017) (the CWA "balances a welter o f . . . goals, establishing10 Sierra Club v. EPA 18cv3472 NDCA 10 Tier 2 ED 002061 00159776-00117 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 17 of 37 Total Pages:(17 of 38) a complicated scheme of federal regulation employing both federal and state imple mentation and supplemental state regulation. In this regard, the Act largely preserves states' traditional authority over water allocation and use . . . (citations omitted)). II. The Hydrological Connection Theory Would Be Unworkable In Prac tice And Would Put An Untenable Strain On State Resources. There is good reason not to upset the CWA's careful balance between state and federal powers: Extending the NPDES program to include discharges of pollu tants to soils that are merely "hydrologically connected" to navigable waters would entail a myriad of practical difficulties; require States to take on significant new reg ulatory costs at the expense of existing, better tailored environmental-protection pro grams; and further multiply the confusion that has long plagued CWA enforcement for regulators and citizens alike. A. State NPDES programs do not currently offer permits for nonpoint source pollution, nor are these programs designed to do so. Expanding CWA liability to groundwater and nonpoint source pollution would accordingly require a dramatic expansion of state NPDES programs beyond discharges from discrete conveyances, to the entire network of underground capillaries that ultimately lead to navigable waters--or else put States at risk of having the EPA revoke their authority to issue NPDES permits altogether. See 33 U.S.C. 1342(c)(3). The problem, however, is that States cannot complete that new NPDES pennitting task with any certainty, and certainly not without considerable, unjustifiable cost. 11 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00118 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 18 of 37 Total Pages:(18 of 38) NPDES permits issued by authorized state agencies contain precise discharge limits from specific point sources into covered waters. Compliance with the terms of a permit becomes the prerequisite for avoiding liability. See, e.g., 33 U.S.C. 1311(a), 1342. Yet the degree of precision necessary to draft and comply with pennits would be near-impossible to replicate in the context of groundwater. It is one thing, for example, to issue a meaningful permit regulating discharges from a pipe into navigable waters, but how would a state agency issue a permit for a "flowD," a "seep[]," or a "fissure []," as Appellants' theory would require? See Ap pellants Br. 7. Or as an oil plume migrates through state lands, would a permit need to be constantly amended? Where would the monitoring outfalls be placed along the groundwater's route to ensure compliance, and how many would be required to ac count for the full depth and breadth of seepage as pollutants move through the ground? Groundwater may or may not seep through many feet of soil-- and take mul tiple directions--before ultimately reaching surface water, and the direction and speed of flow depends on geography and gravity, not design. These factors would make it extremely challenging to draft a permit with precise discharge parameters, much less to monitor compliance. At a minimum, States could be required (at great cost) to undertake significant environmental impact studies into the many newly covered sources of pollution in an attempt to develop data sufficient to regulate with 12 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00119 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 19 of 37 Total Pages:(19 of 38) any kind of precision, coherence, and scientific integrity under the strictures of the NPDES program. The implications of Appellants' theory could also radiate far beyond the par ties in this appeal to encompass many new sources of nonpoint source pollution that have never been considered covered by the CWA-- and States would likely be re quired to permit and monitor all of them. For example, personal septic tanks typically discharge pollutants into groundwater, but their owners have not historically had to apply for NPDES permits. If this Court sides with Appellants, however, the States could be required to issue permits (and individual homeowners required to apply for them) wherever the groundwater surrounding a septic tank is hydrologically connected to navigable waters. The po tential scale of these new burdens is massive: The EPA estimates that 25% of Amer ican homes use septic systems that discharge more than 4 billion gallons of wastewater into the soil every day.2And the concern that septic tanks could become a new source for CWA litigation is not mere speculation, as the EPA has already received complaints arguing that States should be required to include septic tanks in their NPDES programs.3 2 See Envtl. Prot. Agency, A Homeowner's Guide to Septic Systems 5 (2005), available at https://www3.epa.gov/npdes/pubs/homeowner_guide_long.pdf. 3 Envtl. Prot. Agency, Initial Results o f a Review o f the National Pollutant Discharge Elimination System Program in the State o fMinnesota, at 5 (May 2013), 13 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00120 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 20 of 37 Total Pages:(20 of 38) Similarly, owners of large parking lots could find themselves the subject of CWA citizen suits, because storm water mixes with petroleum products from cars parked on the pavement, and then the runoff makes its way into ditches and sur rounding soil before seeping into the groundwater. So too for government agencies and municipalities that own stretches of roads. Just as with personal septic tanks, storm water runoff has also attracted attention as a potential source of NPDES lia bility under the CWA.4 Adding the imprimatur of this Court to Appellants' theory could open the door to numerous citizen lawsuits. The same analysis could apply to untold other sources of potential liability--accident sites when a ruptured fuel tank causes a leak into groundwater, irrigation systems, underground storage tanks that spring a leak, sites undergoing state voluntary cleanup programs, and more. B. The struggle to regulate this dramatically expanded realm of CWA per mitting could place an untenable strain on the resources States devote to environ- available at https://www.epa.gov/sites/production/files/2017-04/documents/mn_ petition_report_may-03-2013updated.pdf (alleging in part that Minnesota failed to establish and enforce an effective NPDES permitting program for over 55,000 septic systems). 4 See Petition, Am. Rivers et al., Petition for a Determination that Stormwater Dis charges from Commercial, Industrial, and Institutional Sites Contribute to Water Quality Standards Violation and Require Clean Water Act Permits (July 10, 2013), available at https://www.clf.org/wp-content/uploads/2013/07/RDA-Petition-WQSViolations-REGION-I-FINAL-7 -10-13.pdf. 14 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00121 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 21 of 37 Total Pages:(21 of 38) mental protection. All told, the time and costs for States to administer NPDES per mitting regimes and otherwise satisfy the requirements of the CWA already require an estimated $69 million in annual labor costs, and 1.6 million hours a year. See EPA ICR Supporting Statement, Information Collection Request for National Pollutant Discharge Elimination System (NPDES) Program (Renewal), OMB Control No. 2040-0004, EPA ICR No. 0229.21 at 17 tbl. 12.1 (Dec. 2015). Further, even before managing the hundreds or thousands of new permitting applications States are likely to receive, States might be required to establish water quality standards ("WQS") for groundwater throughout a State based on its hydrological connection to navigable waters. Currently, States are required to establish WQS for each body of water that falls under the definition of "waters of the United States." See 33 U.S.C. 1311(b)(1)(C), 1313(e)(3)(A); 40 C.F.R. 130.3, 131,3(i), 131.4(a). Yet if a hydrological connection is enough to trigger CWA liabil ity for discharges into groundwater, States may be required to expand their WQS programs as well, studying those "waters" to determine whether current standards should apply, or issuing new WQS altogether. See 33 U.S.C. 1313(c)(4). States then have a continuing duty to revise their WQS as environmental conditions change, 33 U.S.C. 1313(c)(3), and must submit biennial water quality reports to the EPA, 33 U.S.C. 1315(b)(l)(A)-(B). If these duties were expanded to15 Sierra Club v. EPA 18cv3472 NDCA 15 Tier 2 ED 002061 00159776-00122 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 22 of 37 Total Pages:(22 of 38) potentially all of a State's groundwater, state compliance burdens would raise exponentially. At bottom, States would have to devote astronomical resources from already scarce budgets to administer an accurate and timely NPDES permitting regime over all discharges into groundwater with a hydrological connection to navigable waters. This would not only be expensive, but it could also divert resources away from other state programs that, as discussed below, already protect state waters from groundwater and nonpoint source pollution. See infra Part III.B. C. Finally, the difficulties of administering a hydrological connection the ory of CWA jurisdiction would dramatically increase compliance costs for parties who seek to take steps to protect themselves from liability, and further complicate an already thorny and uncertain area of the law. Unlike for discharges into a ditch, tunnel, or similarly discrete conveyance that leads to navigable waters, regulated parties do not have direct control over where, how long, and how far a discharge into groundwater may disperse. It would thus be extremely difficult for covered entities to take precautions to ensure that they meet prescribed NPDES permitting requirements for groundwater discharges. Ap pellants' theory could put States in the untenable position of administering an un wieldy and time-consuming permitting program that may prove challenging for even the most diligent parties to satisfy. 16 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00123 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 23 of 37 Total Pages:(23 of 38) Given that essentially any groundwater may, eventually, make its way to nav igable waters, individuals and companies may find it prudent to seek NPDES permits for essentially every discharge to state lands. This case illustrates the difficulties of such a proposition. Would the owners or operators of an oil pipeline be required to seek a permit everywhere the pipe runs, across county and often state lines, to protect against a potential mountain of citizen suits and the specter of the CWA's steep perday penalties--up to $52,414, see 82 Fed. Reg. 3633, 3636 (Jan. 15, 2017)--in the event of a leak or other accidental discharge? The Supreme Court recently emphasized how "arduous, expensive, and long" the process for obtaining permits for discharges into navigable waters can be. US. Army Corps o f Engineers v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016). The process to obtain state permits for even straightforward point source discharges can already take several months and cost over $20,000.5 Permits issued by the Army Corps of Engineers for more complex regimes--which may be more akin to the type of new regulated sources that could be swept in by Appellants' theory-- can be greater still. There, the process to obtain an "individual" permit can take "788 days and 3 See, e.g., W. Va. D ep't. of Envtl. Prot., National Pollutant Discharge Elimination System (NPDES) Individual Permits (Sep. 7, 2017), http://www.dep.wv.gov/ wwe/permit/individual/pages/default.aspx (explaining that individual NPDES per mits can take up to six months and cost up to $15,000); Va. D ep't. of Envtl. Quality, VPDES Permits, Fees, and Regulations (Sep. 9, 2017), http://www.deq.virginia.gov/Programs/Water/PermittingCompliance/PollutionDischargeElimination/PermitsFees.aspx (explaining that state permits can cost up to $24,000). 17 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00124 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 24 of 37 Total Pages:(24 of 38) $271,596," and even "more readily available `general' permits," on average, take "313 days and $28,915 to complete." Id. at 1812. Here, where individuals and busi nesses may be required to seek permits for discharges into even indisputably nonnavigable groundwater, these costs could skyrocket. More generally, members of the Supreme Court have repeatedly raised the alarm about the uncertainty that has become endemic to CWA litigation. Already, the "systemic consequences" of the statute can be "crushing" "to landowners for even inadvertent violations." Hawkes, 136 S. Ct. at 1816 (Kennedy, J., concurring). And as Justice Alito explained, the CWA's reach is "notoriously unclear," where "[a]ny piece of land that is wet at least part of the year is in danger of being classified [as navigable waters]." Sackett v. EPA, 566 U.S. 120, 132 (2012) (Alito, J., concur ring). Adopting a hydrological connection theory would go further still, making it likely that planned or accidental discharges onto any piece of land could trigger lia bility under the CWA. III. Extending The CWA's Scope Is Unnecessary To Redress Groundwater Or Nonpoint Source Pollution And To Hold Negligent Actors Accountable. Beyond the heavy costs of expanding the NPDES permitting regime to include discharges into groundwater that ultimately make their way to navigable waters, this Court should reject Appellants' position because there is no need to take this atextual leap. The NPDES structure is ill-suited to regulate discharges into groundwater, as 18 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00125 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 25 of 37 Total Pages:(25 of 38) explained above, but numerous federal and state programs already exist that are bet ter tailored to manage groundwater and nonpoint source pollution. State and federal regulators thus already have sufficient alternate means to ensure cleanup of spills and to hold negligent companies accountable for their actions. These existing laws and programs make Appellants' proposed jurisdictional creep--at the expense of the States' traditional and deeply entrenched authority to regulate ground waters--more unwarranted still. See Catskill Mountains, 846 F.3d at 529 (finding narrower inter pretation of CWA reasonable in part because "several alternatives could regulate pollution . . . even in the absence of an NPDES permitting scheme"). A. On the federal side, the CWA is hardly the only statute to address acci dental oil leaks and other groundwater pollution. The Comprehensive Environmen tal Response, Compensation, and Liability Act ("CERCLA"), for example, grants federal authority to order removal of pollutants or other remedial action whenever any "hazardous substance is released or there is a substantial threat of such a release into the environment." See 42 U.S.C. 9604(a)(1). Congress defined releases of hazardous substances extremely broadly in CERCLA. See 42 U.S.C. 9601(22) ("The term `release' means any spilling, leaking, pumping, pouring, emitting, emp tying, discharging, injecting, escaping, leaching, dumping, or disposing into the en vironment . . . ."). "Environment" is a similarly expansive term: Unlike in the CWA, it includes "navigable waters" and "any other surface water, ground water, drinking 19 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00126 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 26 of 37 Total Pages:(26 of 38) water supply, land surface, or subsurface strata, or ambient air within the United States." 42 U.S.C. 9601(8) (emphases added). In other words, CERCLA provides direct authority to mediate situations like these-- an oil leak that was plugged before any pollutants that had seeped into the groundwater made their water to navigable waters--without the need to shoehorn the facts into the more narrow elements of a CWA action. In other cases, the federal government may file a lawsuit under the Resource Conservation and Recovery Act ("RCRA") against "any person" when there is evi dence that any handling or disposal of solid or hazardous waste, past or present, "may present an imminent and substantial endangerment to health or the environ ment." 42 U.S.C. 6973(a). Congress designed RCRA to deal with situations in which environmental "regulatory schemes break down or have been circumvented," and "expressly intended that this and other language of the Act [would] close loop holes in environmental protection." United States v. Waste Indus., Inc., 734 F.2d 159, 164-65 (4th Cir. 1984). Indeed, the CWA itself addresses oil spills in a section separate from the NPDES regime. This section, which defines oil spills to include "leak[s]," 33 U.S.C. 1321(a)(2), prohibits "discharges of oil or hazardous substances into or upon the navigable waters of the United States, [or] adjoining shorelines." 33 U.S.C. 1321(b)(1) (emphasis added). Thus, unlike for purposes of the NPDES permitting 20 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00127 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 27 of 37 Total Pages:(27 of 38) scheme, Section 1321 is not strictly limited to discharges into navigable waters themselves (i.e., jurisdiction extends to spills on adjoining shorelines)--nor does it require that spills necessarily come from a point source. Congress thus chose to treat oil spills different from other discharges of pollutants into the nation's waters. This deliberate legislative choice undercuts Appellants' position that applying the NPDES provisions to nonpoint source pollution is necessary to close a loophole in the CWA that Congress could not have intended. To be sure, individual citizens lack the ability to help enforce these statutes-- Congress chose not to extend the citizen-suit provision to violations of Section 1321, for example, and gave the EPA full authority to enforce violations instead, see, e.g., 33 U.S.C. 1321(b)(6), (7). But those decisions by Congress reveal a conscious leg islative choice that courts are bound to respect. Moreover, the existence of these federal regimes belies any claim that, without the expansive relief Appellants seek here, the federal government would be rendered helpless to address accidental oil leaks and similar threats to the environment. B. At the state level, mechanisms to redress pollution of groundwater are even more abundant. Under the CWA, States establish total maximum daily loads ("TMDLs") to regulate pollutants in intrastate waters. See, e.g., 33 U.S.C. 1313(d)(1)(C). The EPA also provides States with information regarding "pro cesses, procedures, and methods to control pollution" to help the States fulfill their 21 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00128 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 28 of 37 Total Pages:(28 of 38) responsibility to regulate nonpoint source pollution within their borders. 33 U.S.C. 1314(f). And the States expressly retain the "right" to expand their NPDES pro grams or to "adopt or enforce" other environmental standards--including for dis charges into groundwater or nonpoint source pollution more generally--where they detennine that the CWA is insufficient to protect state lands and waters. See 33 U.S.C. 1370. States have long exercised their authority to protect intrastate waters inde pendent of the CWA as well. One powerful example of state water-protection laws at work is South Carolina's extensive, ongoing supervision of the very oil leak at issue here. Under the oversight of the South Carolina Department of Health and En vironmental Control ("SCDHEC"), remediation efforts (which incorporated public feedback, see Appellants Br. 6), resulted in the removal of 209,000 gallons of pollu tants from the spill site as of last spring. See Upstate Forever v. Kinder Morgan Energy Partners, L.P., 2017 WL 2266875, at *1 (D.S.C. Apr. 20, 2017). South Carolina law directly addresses accidental spills like the one here, mak ing polluters liable for money damages in appropriate circumstances and granting SCDHEC broad authority to mandate and oversee remediation efforts.6 South Caro lina law is also clear that the existence of statutory protections for state waters does 6 See, e.g., S.C. Code 48-l-90(A )(l) (making it "unlawful for a person, directly or indirectly, to throw, drain, run, allow to seep, or otherwise discharge into the envi ronment of the State organic or inorganic matter" without a permit (emphasis 22 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00129 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 29 of 37 Total Pages:(29 of 38) not limit other "rights existing in equity or under the common law or statutory law . . . to abate any pollution." S.C. Code 48-1-240. Appellants cannot displace South Carolina's judgment regarding the appropriate methods to enforce and moni tor ongoing cleanup at the spill site, nor the State's prerogative to protect its natural resources. C f Piney Run Preservation v. Carroll County, 523 F.3d 453,459 (4th Cir. 2008) (CWA citizen suit inappropriate in the face of existing agency enforcement action, even where "the agency's prosecution strategy is less aggressive than [the citizen-plaintiff] would like or . . . it did not produce a completely satisfactory result"). Other States in this Circuit enforce similar laws, including--but not limited to--the following: In West Virginia, "[i]t is unlawful for any person," without a state per mit, to "[a]llow sewage, industrial wastes or other wastes, or the efflu ent therefrom, produced by or emanating from any point source, to flow into the waters of this state." W. Va. Code Ann. 22-11-8(b); see also id. 22-11-3(23) (defining "water" to include "all water on or beneath the surface of the ground"). Similarly, the West Virginia Legislature added)); id. 48-l-90(B )(l) (making polluters of state waters "liable to the State for the damages" where the discharge "damage[s] or destroy[s]" fish, wildlife, or plant life); S.C. Regs. 61-92 280.60 et seq. (requirements for "release response and cor rective action" for "[o]wners and operators of petroleum or hazardous substance" underground storage tank systems). 23 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00130 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 30 of 37 Total Pages:(30 of 38) requires the state Department of Environmental Protection to "establish maximum contaminant levels permitted for groundwater," which must "recognize the degree to which groundwater is hydrologically con nected with surface water and other groundwater" and "provideprotec tion for such surface water and other groundwater." Id. 22-12-4(b)(c) (emphases added). Maryland law prohibits the "discharge of any pollutant into the waters of this State," and defines "discharge" broadly to include "addition, introduction, leaking, spilling, or emitting of a pollutant," or placing "a pollutant in a location where the pollutant is likely to pollute." Md. Code Ann., Envir. 9-101(b), 9-322. Virginia makes it "unlawful for any person to" "[discharge into state waters . . . any noxious or deleterious substances," or to "[otherwise alter the physical, chemical or biological properties of state waters and make them detrimental to the public health, or to animal or aquatic life, or to the uses of such waters for domestic or industrial consump tion, or for recreation, or for other uses." Va. Code 62.1-44.5(A)(1), (3); see also id. 62.1-10(a) (defining "water" to include "all waters, on the surface and under the ground").24 Sierra Club v. EPA 18cv3472 NDCA 24 Tier 2 ED 002061 00159776-00131 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 31 of 37 Total Pages:(31 of 38) In North Carolina, it is unlawful, without a permit, to "[c]ause or per mit any waste, directly or indirectly, to be discharged to or in any man ner intermixed with the waters of the State in violation of [applicable state] water quality standards." N.C. Gen. Stat. Ann. 143- 215.1(a)(6); see also id. 143-212(6) (defining "waters" to include "any . . . body or accumulation of water, whether surface or under ground"). These and other laws provide important regulatory checks on groundwater and nonpoint source pollution. There is thus no weight to Appellants' claim (at 9) that rewriting the CWA is necessary to avoid "rampant pollution" of state ground- water and the nation's waterways. C. Where, as here, the States have taken up the mantle of protecting groundwater and nonpoint source pollution within their borders, it would be partic ularly inappropriate to undo the CWA's careful delineation of responsibility between the federal government and the States. Instead of aiding state and federal enforce ment, Appellants' hydrological connection theory could interfere with the efficient operation of these and other existing state programs. As this Court has recognized, "the primary authority for enforcement [under the CWA] rests with the state and federal governments," and citizen suits are "meant to supplement rather than to supplant government action." Piney Run, 523 F.3d at 25 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00132 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 32 of 37 Total Pages:(32 of 38) 456 (citation omitted). Citizens are accordingly "bar[red]" "from suing if the EPA or the State has already commenced, and is diligently prosecuting, an enforcement action." Id. (citation omitted); see also Gwaltney o f Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 61 (1987) (holding that allowing citizens to seek penalties under the CWA that the EPA or "state enforcement authorities" "chose to forgo" would impermissibly "curtail[]" CWA enforcement discretion). This Court's concern about citizen suits improperly interfering with state oversight decisions ap plies with even more force here: There has been no enforcement action under the CWA, but that is because the CWA does not apply. Nevertheless, South Carolina is actively overseeing site remediation under the State's laws that are relevant. Con sistent with the analysis of Piney Run, this Court should refuse to supplant South Carolina's ongoing corrective measures with a remedy that Appellants prefer. That result is also consistent with Congress's judgment that the CWA citizensuit provision must not be used to interfere with remedial efforts under more directly applicable environmental laws. CERCLA, for example, generally prohibits judicial review of government removal or remedial actions. See 42 U.S.C. 9613(h). Courts have interpreted this "blunt withdrawal of federal j urisdiction," N. Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir. 1991), to include citizen-suit provisions in nonCERCLA environmental laws, like the CWA. See McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 331 (9th Cir. 1995) (holding that citizen-plaintiff s 26 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00133 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 33 of 37 Total Pages:(33 of 38) "claims pertaining to discharge via seepage and pipes into [surface waters]" are "ex cluded from federal court jurisdiction" where any remedy would affect CERCLA remediation measures). Just as the CWA citizen-suit provision may not be contorted into a tool to delay, interfere with, or overlap with remediation efforts under CERCLA, the same concerns support the conclusion that it should it be used to sec ond-guess and divert resources from a State's efforts to remediate groundwater or nonpoint source pollution. In short, even if there were any basis in the text of the CWA to support Ap pellants' direct hydrological connection theory-- and there is not-- expanding the scope of the CWA would not meaningfully advance the States' and federal govern ment's interests in protecting water sources and holding polluters accountable for their actions. The CWA's cooperative federalism structure, expressly reserving to the States their traditional authority to protect state waters, should continue running its course.27 Sierra Club v. EPA 18cv3472 NDCA 27 Tier 2 ED 002061 00159776-00134 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 34 of 37 Total Pages:(34 of 38) CONCLUSION The judgment of the District Court should be affirmed. Respectfully submitted, ALAN WILSON ATTORNEY GENERAL Robert Cook Solicitor General J. Emory Smith, Jr. Deputy Solicitor General Office of the Attorney General P.O. Box 11549 Columbia, SC 29211 Telephone: (803) 734-3642 Counselfo r Amicus Curiae the State o f South Carolina September 8, 201728 PATRICK MORIS SEY ATTORNEY GENERAL /s/ Thomas M. Johnson, Jr. Thomas M. Johnson, Jr. Deputy Solicitor General Counsel o fRecord John S. Gray Deputy Attorney General Offi ce of the Attorney General of West Virginia State Capitol Building 1, Room 26-E Telephone: (304) 558-2021 Email: Thomas.M.JohnsonJr@wvago.gov Counselfo r Amicus Curiae the State o f West Virginia Sierra Club v. EPA 18cv3472 NDCA 28 Tier 2 ED 002061 00159776-00135 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 35 of 37 Total Pages:(35 of 38) COUNSEL FOR ADDITIONAL A M IC I Steve Marshall Attorney General of Alabama Office of the Attorney General 501 Washington Ave Montgomery AL 36130 (334) 242-7300 Leslie Rutledge Attorney General of Arkansas Office of the Attorney General 323 Center St. Little Rock, AR 72201 (501)682-2007 Curtis T. Hill, Jr. Attorney General of Indiana Office of the Attorney General 200 West Washington Street, Room 219 Indianapolis, IN 46204 (317) 233-6530 Joshua D. Hawley Attorney General of Missouri Office of the Attorney General 207 W. High St. P.O. Box 899 Jefferson City, MO 65102 (573) 751-3321 Mike Hunter Attorney General of Oklahoma Office of the Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105-4894 (405) 521-3921 Sean D. Reyes Attorney General of Utah Office of the Attorney General 350 North State Street Suite 230 Salt Lake City, UT 84114 (801)538-9600 Derek Schmidt Attorney General of Kansas Office of the Attorney General 120 SW 10th Ave., 2nd Floor Topeka, KS 66612 (785) 296-2215 Brad Schimel Attorney General of Wisconsin Wisconsin Department of Justice 17 West Main Street Madison, WI 53707 (608) 267-8901 Jeff Landry Attorney General of Louisiana Office of the Attorney General 1885 North Third Street Baton Rouge, LA 70802 (225) 326-6200 Governor Phil Bryant Of the State of Mississippi Office of Governor Phil Bryant P.O. Box 139 Jackson, MS 39205 (601) 576-2026 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00136 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 36 of 37 Total Pages:(36 of 38) CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,228 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman. Date: September 8, 2017 /s/ Thomas M. Johnson, Jr.__________ Thomas M. Johnson, Jr. Office of the West Virginia Attorney General State Capitol Building 1, Room E-26 Charleston, WV 25305 Telephone: (304) 558-2021 Fax: (304) 558-0140 E-mail: Thomas.M.JohnsonJr@wvago.gov Counsel for Amicus Curiae State of West Virginia Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00137 Appeal: 17-1640 Doc: 55-1 Filed: 09/08/2017 Pg: 37 of 37 Total Pages:(37 of 38) CERTIFICATE OF SERVICE I certify that on September 8, 2017, the foregoing document was served on counsel of record for all parties through the CM/ECF system. One paper copy of this brief will be sent to the Clerk of Court via Federal Express. /s/ Thomas ML Johnson, Jr. Thomas M. Johnson, Jr. Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00138 Appeal: 17-1640 Doc: 55-2 Filed: 09/08/2017 Pg: 1 of 1 Total Pages:(38 of 38) UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT APPEARANCE OF COUNSEL FORM BAR ADMISSION & ECF REGISTRATION: If you have not been admitted to practice before the Fourth Circuit, you must complete and return an Application for Admission before filing this form. If you were admitted to practice under a different name than you are now using, you must include your former name when completing this form so that we can locate you on the attorney roll. Electronic fding by counsel is required in all Fourth Circuit cases. If you have not registered as a Fourth Circuit ECF Filer, please complete the required steps at Register for eFiling. THE CLERK WILL ENTER MY APPEARANCE IN APPEAL NO. 17-1640______________________ as I |Retained | |Court-appointed(CJA) | lCourt-assigned(non-CJA) | [Federal Defender | |Pro Bono [^Government COUNSEL FOR: State of West Virginia______________________________________________ (party name) as the I |appellant(s) | |appellee(s) | [petitioner(s) | [respondents) | / [amicus curiae | |intervenor(s) | |movant(s) /s/Thomas M. Johnson, Jr.____________ (signature) Thomas M. Johnson, Jr.________________ Name (printed or typed) Office of the West Virginia Attorney General Firm Name (if applicable) State Capitol Building 1, Room 26-E______ Charleston, VW, 25305________________ Address (304) 558-2021 Voice Phone 304-558-0140 Fax Number Thomas.M.JohnsonJr@wvago.gov E-mail address (print or type) CERTIFICATE OF SERVICE I certify that on September 8, 2017 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: /s/Thomas M. Johnson, Jr. Signature 01/19/2016 SCC Print Sierra Club v. EPA 18cv3472 NDCA Save Reset Form Tier 2 09/08/2017 Date ED 002061 00159776-00139 Case: ? -81.85 Document: 38 Filed: 02/08/2018 Page: 1 No.. 17-6155 UNITED STATES COURT OF APPEALS F O R T H ! SIXTH CIRCUIT .......................................... .......................................... TENNESSEE CLEAN WATER NETWORK; TENNESSEE! SCENIC RIVERS ASSOCIATION, Piatntijfk-Appeliees, TENNESSEE VALLEY AUTHORITY, Dejendant~Appellant. ----------- :----------- --------- " " *--------- ----------- -------- On Appeal from die United States District Court for the Middle District o f Tennessee, Nashville Division. Case No, 3:l5-cv-00424 B r i e f o f T h e St a t e o f Al a b a m a , I h e S t a t e o f K r n t t c k y , Fift e e n O t h e r St a t e s ,, a n d T h e M i s s i s s i p p i D e p a r t m e n t o f e n v i k <a me s t a i, Q u a l i t y as A m ic i Cu m ae m in S u p p o r t o f A p p e l l a n t Tennessee 1 alley a u t h o r i t y ANDY BESMEAR Kentucky Attorney Generai Kent A.. Chandler Kentucky Assi Atty- Generai Sam Fi.yn.ii Kentucky Asst. Atty Generai State of K en tu cky O ffic e o f t h e A t t o r n e y G e n e r a i, 700 Capita! Avenue, Suite ! I8 Frankfort, K.Y 4060! (502) 696-5300 Ctmeifr Amicus Curiae the Commonwealth ofKentucky STEVE MARSHALL Ala, Attorney Generai Andrew L, Brasher Aia, Solicitor Generai Erie Ivi. Palmer Ala. Assistant Solicitor Generai St a t e o f A la b a m a O ffic e o f t h e A t t o r n e y G e n e r a i, 501 Washington Avenue Montgomery, AL 36130 (334)242-7300 Counselfor Amicus Curiae State oflaburno Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00140 Case: 17-G15S Document: 38 Filed: 02/08/2018 Page: 2 TABLE O F CONTENTS Table of Co titeots..<....................... Tab le of Author! ties .. . . . INTEREST OF AMICUS CURIAE SUMMARY OF ARGUMENT..... R.fiUIvlIv.-SI I . . . . . . . . . V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,4 I. The Hydrological Connection Theory of CWA Jurisdiction. Is Inconsistent with the Text of The CWA and. Cooperative Federalism Principles..................................................................... II. The Hydrological Connection Theory 'Dramatically Increases State Regulatory and Compliance Costs and Creates New, Unanticipated Costa For Regulated Parties.------- .....----- .....----- --------- ..9 III. Extending the CWA*s Scope Is Unnecessary 12 IV. The Lower Court's Order Would Impose Substantial Costs on Utility Customers........................ ............ ............ ............................................ . 6 . The Impact to Customera Is Immediate and Profound....... .16 B. If this Remedy In this Case Is Upheld and Applied to Additional TVA Sites, the Cost will be Unduly Burdensome to Custom ers,...... .............................. .....----- - .IS C O N C L U S IO N ............................................................................................. CERTIFICATE OF COMPLIANCE 25 CERTIFICATE OF SERV ICE.... . 26 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00141 Case: 17-SSS Document: 38 Fled: 02/08/2018 Page: 3 TABLE OF ATHORIT1ES 26 Crown ssocs,, LLC v,, Creater NewHaven Regi- Water Polluton Contro! uth.t 201? WL 2960506 (D. Conn, J'uly ! 1, 2017)............. ...7 Cape Fear Rver Walek Ine, v. Duke Energy Progress, i n e 25 F. Supp. 3d 798. (EIXN.C. 2014)....... ........I L ......I . ............................. 8... CatskU Mountaim v. C k ofTrout Unimited, Ine. v, EPA. 846 F 3d 492 (2d Cir. 2017)..........1........................................................................ .12 Exxon Corp. v. Tram, 554 F.2d 1310 (5th Cir, 1977)-- .................... 8 FERC v. Mississippi 456 U.S. 742 (1982),....------------------------ ------ - 4 KeHey ex rei, Mich, v. United States, 6 18 F. Supp. 1103 (W.D. Mieli. 8 Kentucky Waterwavs i'ance, et a i v. Kentucky Utilities, Civ. Action No. 5: J7~2924)R, 2017 WL 662891? (E D . Ky. Dee. 28, 2017).... .. 4 Raparos k UnUed States, 547 l i .$. 7 15 (2006) -----.....----- --------- .... 7 Rice v. Harken Exploration Co., 250 F,,3d 264 (5t.li. Cir. 2001) ,, 22 Solid Waste gency ofN. CookCnty. v. U.S. Army Corps o f Eng'rs, 531. U.S. 159 ( l i .... 5 ILS, Army Corps o f Engineers v. Hawkes Co.t 1.36 S.Ct. 1807 (2016)........... IL 12 Village ofOconomowoe Lake t Dayton Hudson Corp., 24 F.3cl 962 " Cir. ...__ .... 6 Statutes 33 U.$,... 1311. 33 U.S.C. 1.313 33 U.S.C. 1.315 4,10,11 ............ 11 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00142 Case: 17-G15S Document: 38 eel: 02/06/2018 Page: 4 33 ilS .C . 1.342...... 33 .S.C. 1362...... 33 C F,R , 328.3 ....... 41) C.F.R,. 122.2..... 40 C.F.R. 130.3...... 40 C.F.R. 1313 .h.. . 40 C.F.R. 131.4...... 40 C.F.R. 2 3 0 .3 ..... 40 C.F.R. 257.50.... 40 C.F.R. 257.71 .. . 40 C.F.R, 257,101.. 40 O C R . 257.107.. 42 .S.C. 6973...... 42 U.S.C, 9601....... 42 U.S.C. 9604.,,..., 79 FR 2218S (Apr. 21 . 2014) T.C, 69-3-103..,.,.. . T.C. 69-3"114......... 4. 9,10,1.1 4, 5, 6 ...... 5 ........ 5 . 11 , 11 . 11 .. 5 . 1.3 .13 . 13 . 13 ,, 13 . 14 . 14 ... S . 14 .14 Ollier Authorities CR. Supporting Statement, Information Col lection Request for National Pollutant Discharge Elimination System (NFD.ES) Program (Renewal), OMB Control No. 2040-0004, EPA ICR No. 0229.22 at ei. thl P j (S ent 17> * t v ? 5-1.3 t 4 I. .**< J. ^ t s 3 V | ' 3 f e - + . * * ' V * i 4 4-i- 4 1- 4 + v + l - 4 + V + J. 41- . ' + ' 4 1 4 + v + t- 41- . ' * ' 4 i 4 4 4- 4 + 4 + 4-1- 4 + v + j. 4 + 4 4 4-1- 4 + v 4- 4 + 4 4-i- 4 1- 44 ....... 10 Rules Fed. R. App. P. 29. Feci. R. App. P. 32. 1,24 ... 24 Sierra Club v. EPA 18cv3472 NDCA in Tier 2 ED 002061 00159776-00143 Case: 17-G15S Document: 38 Filed: 02/08/2018 Pace: 5 INTEREST OF AMICUS CUMAE The States of Alabama, Kentucky Arkansas, Georgia Indiana, Kansas. Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina Texas, Utah, West: Virginia, Wisconsin, Wyoming, and the Mississippi Department of Environmental Quality file this brief under Rule 29(a) of the Federal Rules of Appellate Procedure,1 The amici States have a substantial interest in this ease because the lower court's decision creates an unprecedented extension of federal jurisdiction under the Clean Water Act ("CWA") and the National Pollutant Discharge Elimination System 0 `NPDES'*), expanding federal regulation to those waters historically regulated by the States. Thai result is contrary to both the text and the cooperative federalism scheme expressed in the CWA, and erodes the States" role as principal regulators and protectors of groundwater and land resources. Moreover, the lower court's expansion, o f federal jurisdiction to ``hydrologicallyconnected'' groundwater will increase administrative and. legal costs to the States and their environmental protection agencies without materially improving environmental, quality. In addition, certain amici States' interest extends beyond legal and jurisdictional disputes. The lower court's remedy, ordering closure o f the Gallatin 1 State `"may file an amicus-curiae brief without consent o f the parties or leave o f court." Fed. R, App. P. 29(a), Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00144 Case: 17-G15S Document: 38 Filed: 02/08/2018 Page: ash ponds by excavation and removal, would cost approximately $1.8 billion to 4.0 billion. As TV A. will pass this cost on to its captive utility customers, such a costly remedy will have an unanticipated, immediate, and profound impact on utility ratepayers. If this Court upholds the lower court's remedy, and closure-by-removal is subsequently applied throughout the Sixth Circuit, the resulting costs to utility customers would be astronomical, costing in the ten s-ofTMbill ions o f dollars. Ratepayers in states outside o f the Sixth Circuit who receive wholesale utility service from TVA, like Mississippi, Georgia, and. Alabama, would suffer the same negative consequences if the legal arguments and remedies the lower court adopted are accepted by this Court. SUMMARY OF ARGUMENT The CWA. strikes a balance between state and federal environmental enforcement in a cooperative scheme designed to protect the nation's waters. The CWA prohibits discharges of pollutants from '`point sources," like pipelines, into waters o f the United States. Congress ex press ly left regulation o f groundwater pollution to the States. The pollution at issue here occurred on. intrastate land, with some pollutants---eventually and indirectly--making their way to waters o f the United States by seeping into the ground from coal ash ponds and migrating through, the groundwater. The CW A. does not apply to this form of groundwater pollution.2 2 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00145 Case: 17-61.5S Document: 38 Filed: 02/08/2018 Page: ? Nevertheless, the district court adopted a "hydrological connection" theory, which, has the efleet o f end-running the jurisdictional limitations embodied in the CWA. The lower court's adoption, o f this theory effectively erases the distinction between state and lderai authority, which, is incorporated into the CWA's very structure. Moreover, the lower court's decision creates unnecessary complexities and administrative costs to States attempting to navigate new and unanticipated regulatory ditties imposed upon them under an atextual theory, rather than clear text approved by representatives o f the States In Congress. indeed, the lower court's decision creates additional, unanticipated costs for 'IVAN utility customers both in and out o f the Sixth Circa it. Notably, while monopoly"Stata.s Utilities pass on. environmental compliance costs to captive customers, those costs are typically associated with legal and regulatory policy initiatives enacted by elected officials or their delegates. 'Despite this tact,, the lower court mandated - in a proceeding with limited evidence and stakeholder participation a remedy of "closure by excavation and removal,'' which will cost billions that will ultimately be passed on to captive customers in states both within, the Sixth Circuit and elsewhere. Application of such a remedy to the dozens o f coal ash. ponds in the Sixth Circuit: in. subsequent litigation, would add to already mounting costs and cou ld effective!v mean hundreds-o-thousands o f customers being unable3 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00146 Case: 17-S1SS Document: 38 Filed: 02/08/2018 Page: 8 to afford electricity. This Court should avoid such unintended, costly results and reverse the lower court's flawed decision. ARGUMENT I, The Hydrological Connection Theory of W A Jurisdiction Is Inconsistent with the Text of The CWA and Cooperative Federalism Principles, This Court, should reject a flawed hydrological connection theory of CWA jurisdiction that is contradictory to the text o f the statute and. the cooperative federalism principles embodied in its structure. The CWA generally prohibits `The discharge o f any pollutant" from a "point source" to "navigable waters," without an NP.DES permit. See 33 U.S.C. 1311(a); 1342; 1362(12). However, the A cfs express language does not include groundwater within, federal ju risdiction..a limitation confirmed, by the A cfs legislative history, wherein Congress explicitly determined that, regulation o f ground water be left to the States. Indeed, numerous courts have confirmed that the theory adopted by the lower court is unworkable, finding that hydrologically connected groundwater is neither a "point source" nor a "navigable water" under the text o f the Act. See e.g:., Kentucky Waterways Alliance, ei a!, v,. Kentucky Utilities*Civ. Action No. 5; 17-292-DCE, 2017 WL 662891.7, Sierra Club v. EPA 18cv3472 NDCA 4 Tier 2 ED 002061 00159776-00147 Case: 17-SiSS Document: 38 Filed: 02/08/2018 Page: 9 Management o f local lands and waters `is perhaps the quintessential state activity." FERC v. Mississippi^ 456 U,.S. 742, 767, n. 20 (1.982), To secure the reserved power of the States o ver local land and water resources, the Supreme Court, has required a. clear statement o f congressional intent to interfere with the States' `Traditional and primary power o f land and water use"' when assessing the validity o f expansive interpretations o f the CWA. Solid Waste Agency o / K Cook Cnty. v. US. Army Corps o f Eng 531 U,S, 159, 174 (2001 ) (hereinafter'"SWANCCT). But there is no clear statement o f Congressional intent to subject regulated parties for groundwater discharges present in the text o f the CWA, instead, Congress chose to leave regulation o f groundwater, including groundwater that is "hydrologically connected" to "navigable waters" within the purview and jurisdiction o f the States, A sa result, the lower court erred when it adopted the hydrological, connection theory of CWA jurisdiction,. It is beyond dispute that groundwater does not in. itself constitute "navigable waters" and the District Court's opinion below' does not purport: to hold otherwise,. The CW A's definition o f navigable waters--`"waters o f the United States, including the territorial seas"'--excludes groundwater. 33 U.S.C. 1362(7). Federal regulations likewise exclude groundwater from, navigable waters, 40 C.F.R. 122,2,230,3(o); 33 C.F.R. 3283(a), See also 79 FR 22188., 22218 (Apr, 21,2014) 5 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00148 Case: 1.7-6155 Document: 38 Fifed: 02/06/2018 Page: 10 {`T he agencies have never interpreted `waters o f the United States' to include groundwater"). And'the CWA defines the term "discharge o f any pollutant" as "any addition o f any pollutant to navigable waters from any point source." 33 U.S.C. 1362(12) (emphasis added). The addi tion o f a pollutant to groundwater from a point source is not enough; Congress repeatedly rejected proposed bills adding that language. See infra pp< 8-9,. A. discharge that migrates through groundwater ifooi a point source to navigable wafer is not an addition, o f a pollutant to navigable waters from a point source. It is an addition o f a pollutant to groundwaterfrom a point source. Thus, the addition o f pollutants to groundwater does not constitute an "addition o f any pollutant to navigable waters from any point, source," as the District Court's hydrological connection theory requires. 33 U.S.C. 1362(1.2). The possibility o f a "hydrological connection" between: groundwater and navigable waters is not "a sufficient ground, o f regulation.A Viiiage ofO eom m ow oc Lake v. D aytm Hudson C a r p 24 F.3d 962. 965 (7th Car. 1994) ("the statute Congress enacted excludes some waters, and ground, waters are a logical candidate.") (eni.pha.sis in original). Nor does groundwater itself constitute a "point source" Under the CWA., a "point source" is "any discernible, confined and. discrete conveyance," which includes (but is not limited to) "any pipe, ditch, channel, tunnel, conduit, well, 6 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00149 Case: 1.7-6155 Document: 38 Filed: 02/06/2018 Paga; 11 discrete fissure, container, roiling stock, concentrateti, animal feeding operation, or vessel or other floating craft, from which, pollutants arc or may he discharged/' 33 U.S.C. 1362(14). But groundwater is neither discernshie, confi ned, nor discrete. "It is basic science that ground water is widely diffused by saturation within the crevices of underground rocks and soil/' and "[ajbsent exceptional proof of something akin to a mythical Styx4 ike subterranean river/'' `'"passive migration of pollutants" through groundwater is not a discharge from a point source, 26 Crown A s s o e s L L C v. Greater New Haven R e g i Water Pollution Control Auth. 2017 WL 2960506, at (D. Conn. July 1.1,2017). Moreover, while the CWA. does prohibit indirect discharges into navigable waters, those discharges must proceed from one distinct point source (eg: a pipe) into another (e.g, a drainage ditch), which, is designed or intended to channel, water into navigable waters,. See, e.g^Rapanos v. United States. 547 ILS. 71.5,743 (2006) (plurality opinion). Given the ubiquitous presence of groundwater in State lands, the tower court's expansive reading of the CWA would authorize the federal, government "to function as a de facto regulator o f immense stretches of intrastate laud." M at. 733 (plurality opinion) (citation omitted). Such "an unprecedented intrusion into traditional state authority" requires a "clear and manifest statement from Congress." M "The phrase `waters o f the United States' hardly qualifies." M As a result, migrai ion o f pollutants through groundwater is not covered by the 7 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00150 Case: 17-6155 Document: 38 Fifed: 02/06/2018 Page: 12 CWA's prohibition on indirect discharges because groundwater does not constitute a 4`'point source" within the meani ng of the statute. .Extending the teach of the CWA. to encompass hydrologically connected groundwater would be facially in.eon.sistent with, the cooperative federalismstructure embodied in the CWA.. The EPA. has emphasized that the CWA "commands the [EPA] to pursue two policy goals simultaneously: (a) To restore and maintain the nation's waters: and (b) to preserve the States' primary responsibility and right to prevent, reduce, and eliminate pollution?" 82 Fed. Reg. at 34900 (emphasis adder!}. As one court stated: '"Congress did not intend for the CWA to extend federal regulatory authority over groundwater, regardless o f whether that ground water is even.tti.all.y or somehow liydtologiealiy connected' to navigable surface waters." Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., 25 F. Supp. 3d 798, 810 (E.'D.N.C. 2014). Instead, Congress determined that regulation, o f groundwater pollution be left to the states. See Exxon Corp, v. Train, 554 F.2d 1.33.0, 1.325-29 (5th The CWA's legislative history further confirms that Congress extensively considered whether to extend CWAjurisdiction to groundwater and chose not to. id. Although the Senate Committee on Public Works expressly recognized "the essential link between ground and surface waters and the artificial nature of any distinction." it expressly rejected, after '"heated debate," an amendment that would 8 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00151 Case: 1.7-6155 Document: 38 Fifed: 02/06/2018 Page: 13 have extended the CWA to groundwater M at 1.325, 27-29 {quoting S. Rep. No. 414,. 92d Cong., 1st Sess. 73 (1971)). Instead, Congress determined that regulation o f groundwater he left to the States, Id. at 1325-29; see also Keile)? ex rei. Mick. \\ United States. 61.8 F. Supp. 103,1107 (WJX M ich. 1985)). Respecting the balance ofrol.es and policy goals that Congress adopted in the CWA is the best way to ensure the existence of strong environmental protection programs at both the State and federal, levels. For these reasons, this Court should reverse the lower court's decision. II, The Hydrological. Connection Theory Dramatically Increases State Regulatory and Compliance Costs and Creates New,. Unanticipated Costs for Regulated Parties. This Court should not adopt an atextual theory o f federal. CWA. jurisdiction that is certain to drastically increase the cost of States* administration, regulation, enforcement o f the NPD.ES program as well as the costs o f citizen and business compliance with the CWA. and NPOES program, initially, expanding CWA liability to groundwater would, immediately force States to undergo massive expansion of NPDES programs heyend discharges from ''discrete conveyances'"' to the entire network of underground capillaries that ultimately lead to "navigable waters," or else risk losing their authority to issue NPDES permits altogether. See 33 U.5.C. 1342(e)(3). Next, expanding the NPDES permitting regime would strap the States"' environmental, protection resource. Finally, the hydrological connection theory 9 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00152 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 14 would, dramatically increase the number o f regulated individuals and business and their CWA. and NPDES compliance costs. Simply put, the adoption, o f the hydrolog teaI connection theory would cause a radical and. impracticable expansion, o f States" NPDES permitting programs, NPDES permits issued by authorized state agencies contain precise discharge limits from specific point sources into covered water. Compliance with the terms o f a permit is the prerequisite for avoiding liability. See, e.g,,, 33 11SX1 1.31.1(a), 1342, But the degree of precision necessary to draft permits with d ear compliance requirements would be nearly impossible to replicate with respect to groundwater discharges,. States would he forced to issue permits for any flows, seeps, or fissures, including those that ate hidden, and malleable. The trajectory and speed of groundwater flow depends on geography and gravity, not. design. These factors would make it extremely difficult to draft a. permit with precise discharge parameters or monitor compliance or seepage. The struggle to regulate this radically expanded realm o f CWA permitting would place an. untenable strain on the environmental protection resources o f the States. At. present, the time and costs for States to administer 'NPDES permitting programs and otherwise satisfy the requirements o f the CW already require an estimated $83 million in annual labor costs and .J million hours per year. See EPA ICR. Supporting Statement, Information Collection Request for 'National. Rollotaut 10 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00153 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 15 Discharge Elimination System (NPDES) Program (Renewal)* OMB Control No, 2040-0004* EPA ICR No. 0229.22 at 23 ibi. 12.1 (Sept. 2017). lo addition to the hundreds or thousands of new permitting appi teat tons* States would, at a minimum* he forced to undertake significant environmental impact studies o f the many newly covered sources of pollution in order to develop data sufficient to regulate with any degree o f precision, coherence, and conformity with established, scientific principles. States would also necessarily be required to expand the extent and applicability of their respective water quality standards ("WQS'') to cover groundwater,. See 33 U.S.C. 1.311 (b)(1)(C)* 130(e)(3)(A ); 40 C.F..R, 130.3, 131.3(1), and 13L4(a). Sue Si a result would expand States* duties to revise WQS or require them to Issue altogether new WQS. See 33 U.S,C\ 1313(c)(3): 13i5(b)(.l)(A.)-(B). Moreover. States could not simply deeline to undertake these burdensome costs. Instead* if a State chose not to extend its permitting programs to include the addition, o f pollutants to "groundwater," it would immediately risk EPA revocation o f its authority to issue NPDES permits altogether. See 33 U .S.C 342(c)(3). Ultimately, tins theory of CW jurisdiction would require States to devote astrosiornical. resources from already strained budgets. Finally, the hydrological connection theory would dramatically increase the number of regulated parties and their compliance costs. The "systemic con sequences " of the CW. can be "crushing'' "to landowners for even inadvertent. Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00154 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 16 violaiions/' Hawkes, 136 S.C t at 181.6 (Kennedy, J,, concurring), For example, owners of large parking lois could find 'themselves subject to CW citizen suits as storm water runoff mixes with petroleum products discharged by cars parked on pavement, and may make its way into groundwater and eventually "navigable water.51The same logic extends to runoff from, state, county, and municipal roads and highways.. As all groundwater may eventually migrate to navigable waters, individuals and companies will likely find it prudent to seek NPDES penults for essentially every discharge that might find its way to groundwater, resulting in. the imposition o f immense compl iance costs on regulated parties:. As the Supreme Court, has recently emphasized, the NPDES permitting process is "arduous, expensive, and long A U.S. Army Corps o f Engineers v, Hawkes Co.., 136 S.Ct. 1807, 1815 (201.6), In sum, the lower court's adoption o f the hydrological, connection theory would cause CW. and NPDES compliance costs to skyrocket, for both individuals and businesses. As a result, this Court should reverse the lower court's decision. III. Extending the CWAN Scope Is Unnecessary This Court should not adopt an unnecessary , atextua! theory of federal CWA jurisdiction in light o f other state and federal, laws that provide adequate, alternative methods for addressing groundwater pollution. The NPDES structure is ill-suited to regulate discharges into groundwater, as explained above, but there are numerous federal, and state programs that are better tailored to address groundwater pollution. Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00155 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 17 These existing laws and programs render the extension o f CW jurisdiction to hydro logically connected groundwater unnecessary. See Catskill Mountains v. Ck o f Trout Unlimited, Inc, u .PA> 846 F.3d 492, 529 (2d O r. 2017) (finding narrower interpretation o f CWA reasonable in. part because "several alternatives could regulate pollution . . . even in the absence of an NPDES permitting scheme*'). Several other federal statutes provide the federal government authority to regulate the migration o f pollutants through, groundwater. For example, the Resolitee Conservation and Recovery Act ("RCRA" ) provides the government: the power to bring suits and criminal, actions against persons who dispose o f solid or hazardous waste, past, or present, which Mrnay present, an imminent and substantial endangermettt to health or the environment" 42 U.S.C. 6973(2), Indeed, the EPA has exercised its authority under R.CRA to regulate the disposal, of solid waste by promulgating a rule establishing minimum national, standards for the disposal of coal combustion, residuals ("CCR"*) generated by electric utilities and. independent power producers, like the pollutants at issue in this ease. See Hazardous and. Solid Waste Management System; Disposal o f Coal Combustion Residuals from. 'Electrie Utilities, 80 Fed. Reg. 21,302 (Apr. 17,2015). 201.0 WL 2470432 C'CCR Rule"); 40 CJF.R, 257.50-257.107. Under the Rule, any existing unllned CCR surface impoundment that is contaminating ground.water above a groundwater protection13 13 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00156 Case: 17-6155 Document: 38 Fifed: 02/06/2018 Page: 18 standard established by the EPA must stop receiving CCR and eitherretrofit orclose, except in limited circumstances. 40 C.F.1L 257.71; id. 257.101. In addition, The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") grants federal authority to order removal of pollutants or other remedial, action, whenever any "hazardous substance is released or there is a substantial threat o f such a release into the environment" 4.2 U.S.C. 9604(a)(1). Unlike the CWA, CERCLA. provides authority to remediate "release of pollution" Into "environment," expressly including the "navigable waters" and "any other surface water, ground water, drinking water supply, land surface, or subsurface strata, or ambient air within the United States," 42 O.S.C, 9601.(8) (emphasis added). Had Congress intended the CWA to include ground water it would have explicitly said so, as it did under CERCLA. Moreover, States have long exercised their power to protect intrastate waters and groundwater independent o f the CWA NODES permitting program., Tennessee taw, 'for example, directly addresses the discharge of pollutant's into groundwater by rendering it "unlawful for any person to discharge any substance into the waters of the state" where such substances qua lily as statutorily defined, pollutants and the discharge was not "properly authorized" by state authorities. T.C, 69-3-11.4(a); T,C 69-3-103 (defining "pollutant"). This prohibition dearly encompasses the discharge of pollutants into groundwater, because the applicable statutory definition 14 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00157 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 19 o f `"waters" includes `"any and ail water, public or pri vate, on or beneath the surface o f the ground, that are contained within, flow through, or border upon Tennessee." T.C. 69-3-103 (emphasis added). Other States in this Circuit enforce similar laws, including....but not limited to....the following: * Kentucky law provides that "no person shall, directly or indirectly , . discharge into any o f the waters o f the Commonwealth , . . any pollutant, or any substance that shall, cause or contribute to the pollution o f the waters of the Commonwealth" except as authorized by state regulatory authorities." K.RS 224.70-110; KRS 224.1010 (defining ""waters" and "`waters o f the Commonwealth" to include "underground water"). * Michigan, law provides that a "person, shall not directly or indirectly discharge into the waters o f the state a substance that is or may become injurious" to a broad array o f interests, including public health, commercial., industrial and agricultural land uses, and the protection of wild flora and fauna. M.C.L, 324.310911), The term "waters of the state" is explicitly defined to include "groundwaters ,.. . within the jurisdiction o f this state." M.C.L. 324.3101. (aa). Ohio law makes It unlawful, for any person to ""cause pollution or place or cause to be placed any sewage, sludge, sludge materials, industrial waste, or other wastes in a. location where they cause pollution o f any waters o f the state; ' R.C. 61.1.1.04(A)(1); R.C; 611. L01. (defining "waters o f the state" to include all. "bodies or accumulations of water, surface and underground, natural or arti ficial, regardless o f the depth of the strata in which underground water is located , . . except those private waters that do not combine or effect ajunction with natural surface or underground waters"). In sum, state and. federal laws already provide important regulatory checks on. groundwater pollution. At best, the hydrological] y connected groundwater theory is an expensive, atextrial, redundancy; As a result, this Court should respect the IS Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00158 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 2:0 jurisdictional limitations embodied in the text o f the CWA and reverse the lower court's decision. IV, The Lower Court's O rder Would Impose Substantial Costs on Utility Customers , The Impact to Customers Is Immediate and Profound, lust like any other utility with regulated rales, the TVA generally passes its costs on to consumers,2 While the spec! fie type o f costs that utilities experience may vary, the broad, categories o f costs the TVA incurs are typical o f the industry, and. include "[ojperadon, maintenance and. administration o f the utilities* power system; taxes or in lieu, of tax payments; and, capital costs such, as debt service payments."*3 Over the past few decades, utilities have spent an. increasing amount o f capita! on environmental, compliance. For instance, "[fjrom the 1970s to 201.7, TVA spent, approximately $6,7 billion on contro is to reduce emissions from its coal-fired power plants,'*4The bulk o f environmental comp lance costs are attributable to government mandates and sweeping regulatory changes, such as the implementation o f the Clean 2 The TVA board has some discretion in determining when costs are recovered through rates, but generally, the TVA. sets its rates at levels that will recover its costs, TVa 'I.O-K For the fiscal year ended Sep, 30, 2017 ("TVA. 2017 10-.KT), at. 11.-12, accessible here <https://www.sec.gov/Archives/edgar/data/1.376986/0001.3769861.7000031/tve- 0930201.7xl0k.htm>. 3 ici 4 M at 32-33, 16 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00159 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 2:1 Water Act and Clean Air Act,, or standards for Sulfur Dioxide or Nitrogen Oxides,. For example, in 2011 the TV initialed a. preyed at the Gallatin 'Plani to install a dry flue gas desulftirization control ("dry FGD") to the tune o f S730M, wherein, "[tjihe 'Project allowed TVA to reduce the plant's sulfurdioxide and. nitrous oxide emissions into the airT 5 When a utility spends significant sums for the purpose o f regulatory compii ance, the expenses are typically passed on to consumers. When provided with two reasonable options like in this matter -- deciding between whether to close-by- removal or close-in-place a coal ash pond -- a utility's decision will, generally he reflected on customers' bills for decades to come. The remedy provided by the lower court' much more expensive than the alternative remedy. The TVA's preferred option, o f addressing the future of tire Gal latn, ash. ponds--and. an option, specifically authorized, by the EPA/s CCR rule-- is a process referred to as closure-in-place. The estimated cost of closure-in-place, as provided to T.DEC, is $230 million,.6This is in starkcontrast to the remedy ordered by the lower court (and advanced by the Appellees) o f the "excavation and offsite relocation of CCR 'Material," costing approximately $2 billion/ Should this remedy ? Trial Tr. (Voi. 4), RE 237, PageiD#?513. 6 Trial Tr. (V oi 4), RE 237, PageiD#952G. 7 id 17 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00160 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 2:2 be upheld, the cost: t:o W A V customers for this project alone will, likely be nearer to $4 billion when, considering the cost o f debt * B, If this Remedy in this Case Is Upheld and Applied to Additional TVA Sites, the Cost will be Unduly Burdensome to Customers, ~ V If the hydrological connection theory becomes binding in this Circuit, these costs will, dramatically increase. Additional citizen suits will almost certainly follow, * + likely resulting In elosure-by-rentoval of most. If not all, o f the coal ash ponds operated by the TVA. The ratepayer impact of tills broad reading: and implementation of the CWA, together with the burdensome remedy and subsequent application to other impoundments, would lead to unaffordable bills lor many TVA customers. For instance, the cost estimation information provided, by the Part H EIS programmatic review, an environmental, impact and cost study conducted for the TVA, o ften (10) other wet ash-handling facilities at six (6) additional TVA fossil fuel sites, suggests that If those facilities were closed-by-removal, rather than closed- in-place, the net difference in cost would, be roughly $2.7 billion, before considering: financing costs.89 8Calculated assumi ng a 30-year amortization period and a. debt rate o f 4.75%, which is conservative compared to the I VAT 2017 blended interest: rate o f 5.11%, TVA 201.7 10-K, at 61.30 years was used as the amortization period as it is generally the ordinary length o f time in which, large, long-term debts are borrowed and to reflect the anticipated length, of ash pond closure-by-removal for Gallatin (24 years), See Proposed Compliance Timetable, RE268, PagelD# 1.0883. 9 To simplify, the amounts used were those provided for the elosure-by-roinovaJ (truck) option in the Part il-Programmatic Reviews. 18 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00161 Case: 17-6155 Document: 38 Fifed: 02/06/2018 Page: 2:3 Coupled with the net difference between the costs of the two options at the Gallatin facility, and including financing costs, the estimated cost to TVA customers if the utility is forced to close-hy-removal fourteen (14) of its twenty-two (22) total coal. ash. facilities is more than $8,500,000,000. This estimate does not include the eight (8) ash impoundments that do not have Part II EIS reviews or are part of this litigation.111If the other eight (8) ash. impoundments arc considered, the net cost to TVA customer tor the closure-by-removal remedy vs, closure-in-place is likely in excess o f $1.0,000,000,000. Importantly, the TVA currently has outstanding debt m excess o f $20 billion, while the TVA Act only authorizes the TVA to issue bonds in an amount not to exceed $30 billion at any time,.101 Similar citizen suits and the imposition, o f same remedy as the underlying matter con id. ultimately devastate TVA's financial position, putting the future o f millions o f American's energy supply 10 Page 6 o f Part: I-Programmatic NEPA Review, available at < https://www.tva.com/file souioe/TVA/Site%20Content/E-nvironment/Enviroument al%20 Sts wardship/EnvironmentaJ.%20Reviews/Closure%20of%20Coal%20Comb tist:ion%2()R.esidual%2Ofrnpoitndmems/F inal%20El.S%20Part%20l..pd>, 11 See TVA 2017 I0-K, at 112-113: See aho TVA. Act, at 20, available at <https://www.tva.com/file_source/TVA/$ite<Hi2OCofitent/Alx)ut%20TVA/TVAmA et.pd> 19 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00162 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 2:4 in 2016, Kentucky customers represented, approximately 6.5% of the total kWh's sold by TV A.52 Thus, it is reasonable to assume that Kentucky customers would be liable for approximately 6.5% o f the $8,500,000,000 net cost associated with the closure-by-removal remedy (rather than closure-in-place) for fourteen (14) o f TVA's ash impoundments or $550,000,,000. Assuming those costs are recovered on a ievelized basis over 30 years12314, the cost o f this single issue will, lead to residential, customers in Kentucky paying $5,000,000 more a year.. This increase to Kentucky customers provides them: no corresponding benefit. These customers do uot live in a State where any o f the fourteen (1.4) referenced impoundments are located, while those in Kentucky who live near the Cumberland River are hundreds" of-miles upstream from the Gallatin plant. Any perceived safety or environmental benefits that may be claimed by the Appellees as a result o f the ordered remedy will be o f little assistance to those 200,000 Kentucky households that will see their bills rise more titan necessary than if the TVA closes-in-place its ash ponds. When considering the effect on customers o f closing-by-removal ali TVA ash 12 TVA at a glance website and TVA in Kentucky website, 201.6 figures,, available at <https://www.tva.coin/Afeout-TVA/TVA-at-a-Giance> and <htips://'www.tva.com/Abo ut-TV /TVA-in-KeotuekyX u See footnote 9 stating that the assumed amortization period is 30 years. 14$ 8.5 bill too#6.5% -S 552500,000 $ 552,500,000/30 years- $18,416,667 $ 1.8,41.6,667*.2745 (% o f total 2016 Ky. kilowatt-hours represented, by residential customers)- $5,055,375 20 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00163 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 2:5 impoundments, as opposed, to closure-in-place, the remedy ordered by the lower court appears to be even more unreasonable. If similar citizen suits, demanding the same draconian remedy for every impoundment, are applied across the Sixth Circuit additional consumers will suffer. Kentucky, like the others states in the Sixth Circuit, has dozens of ash Impoundments. If the lower court's interpretation of law and the appl ied remedy are upheld in tills matter, similar citizen suits will undoubtedly follow. Due to the rateregulated nature o f most States'' utilities, the consequence o f these suits and subsequent mandated remedy o f eiosure-by-reniova.1,. will without question lead to increased rates for consumer. For legal, precedent based on limited evidence to mandate that utilities close-by-removal all ash impoundments, regardless of whether that method is the most reasonable, will ultimately lead to unaffordable and burdensome utility rates. Using the estimated size o f the ash. impoundments In. Kentucky, and extrapolating the cos estimated. In TV Afs programmatic reviews, the costs that will be passed onto customers within the Sixth Circuit alone will be tensof-bil lions of dollars. Along with the inappropriate interpretation of the CW, the remedy the lower court ordered is an unreasonable application o f the CW. to these facts, and the precedent it sets for the rest o f the States within the Circuit is untenable for customers. Reasonable minds can differ among stakeholders as to the most: prudent long-term plans for these impoundments, and under cooperati ve federalism 21 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00164 Case: 17-6155 Document: 38 Fifed: 02/06/2018 Page: 2:8 every stakeholder has an opportunity in the process to voice those concerns. If upheld, customers across the Circuit will be paying for the preference of those citizens who have strong opinions regarding environmental issues not what the most reasonable outcome should be. Consumers in Mississippi, Georgia and. Alabama all receive service from* and pay rates to TV A, although they are located outside o f the Sixth Circuit. As a consequence o f this matter* and any others where TV A. may btjorced to close Its ash impoundments by removal under an unreasonable application of the CWA, customers in. those States will pay their portion of the costs, just like residents o f the Sixth Circuit States,. These States are not within the footprint of the Sixth Circuit, but those consumers will nevertheless be burdened with any negative consequences o f the district court's decision. In fact, the Fifth Cimiit, in which Mississippi, is located, has already rejected similar arguments under the CWA as those before us.b Thus, although the federal courts in their State and Circuit have rejected the legal arguments made by Appellees here, consumers may nevertheless pay for a contradictory decision from a different Circuit. b See Rice v. Harken Exploration Co 250 FJd 264 (5th Cir. 2001), 22 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00165 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 2:7 CONCLUSION For the foregoing reasons, the Court should reverse the judgment of the District Court. ANDY BESH.EAR Kentucky Atty. General Kent A. Chandler Kentucky Asst Atty, Gen, Sant Flynn Kentucky Asst, Atty, Gen, Respectfully submitted, STEVE. MARSHALL Ala, Attorney General Andrew L. Brasher Ala, Solicitor General /s/ Erie M. Palmer Erie M, Palmer Ala, Assistant Solicitor General Sta te o f K en t u c k y O ffic e o f t h e A t t o r n e y G e n e r a l, 700 Capitili Avenue, Suite I ! 8 Frankfort, KY 40601 (502) 696-5300 Counseljar Amiens Curiae the Commonwealth o fKentucky State of A la b a m a O ffic e o f t h e A t t o r n e y G e n e r a l 501 Washington Ave one Montgomery, AL 36130 (334) 242-7300 Counselfor Amicus Curiae State o fAlabama Sierra Club v. EPA 18cv3472 NDCA 23 Tier 2 ED 002061 00159776-00166 Case: 17-6155 Document: 38 Flled: 02/06/2018 Page: 2:8 COU NSEL FOR ADDITIONAL A MIC? 'Lesile Miitledge Attorney Generiti of Arkansas Christopher M. Carr Attorney General of Georgia Ciirtis T. Hill, Jr. Attorney General o f Iotitana Derek Sch midt Attorney Genera! of Kansas Jeff Land rv v Attorney General o f Louis tana Joshua IX Miiwley Attorney General of Missouri Timothy C, Fox Attorney General of Montana Doug Petersott Attorney Genera! of Nebraska Mike Iltiitier Attorney Generiti of Oklahoma Alan Wilson Attorney Genera! of South Carolina Ken Faxton Attorney Generiti o f Texas Seait D. Rcyes Attorney Genera! o f Utah. Patrick Morisse} Attorney General of West Virginia Brad Seliiinei Attorney Genera! of Wisconsin Peter K, Michael Attorney General of Wyoming Boy Furrh Geo era! Conosel Mississippi Department of En.vironmenta I Qu ality Sierra Club v. EPA 18cv3472 NDCA 24 Tier 2 ED 002061 00159776-00167 Case: 17-6155 Document: 38 Fifed: 02/06/2018 Page: 2:9 CERTIFICATE OF COM PLI ANCE 1. This document complies with the length limit of Fed< R, App, P> 29(a)(5) because, excluding the parts of the document exempted by Fed, R, A.pp, P, 32(f) and fed. R. App. P. 27(a)(2)(B)* this document contains 5015 words. 2, This document contplies with the typeface require merits o f Fed, R, App. P, 32(a)(5) and the type-style requirements of Fed. R, App, P, 32(a)(6) because this document has been prepared, in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Times New Roman. Dated: February 6,201.8 /s/ Eric M. Palmer______ Erie ML Palm er Akt< Assistant Solicitor General Sierra Club v. EPA 18cv3472 NDCA 25 Tier 2 ED 002061 00159776-00168 Case: 17-6155 Document: 38 Filed: 02/06/2018 Page: 30 CERTIFICATE O F SERVICE I certify that on February 6, 20IS, I electronically filed this document using the Court's C'M'/ECF system, which will serve art electronic copy on all registered counsel of record. /s/ Erie M, Palmer______ Eric iVl. Palmer Akt< Assistant Solicitor General Sierra Club v. EPA 18cv3472 NDCA 26 Tier 2 ED 002061 00159776-00169 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 1 No. 17-6155 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT TENNESSEE CLEAN W ATER NETWORK; TENNESSEE SCENIC RIVERS ASSOCIATION, Plaintiffs-Appellees, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellant. On Appeal from the United States District Court for the Middle District of Tennessee, Nashville Division No. 3:15-cv-00424 BRIEF OF THE STATE OF TENNESSEE AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES HERBERT H. SLATERY III Attorney General and Reporter ANDRE S. BLUMSTEIN Solicitor General BARRY TURNER Deputy Attorney General Environmental Division EMILY B. VANN Assistant Attorney General Environmental Division Office of the Attorney General Post Office Box 20207 Nashville, Tennessee 37202-0207 (615) 532-2583 Counselfo r Amicus Curiae State o f Tennessee Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00170 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 2 TABLE OF CONTENTS Page TABLE OF CONTENTS.................................................................................................ii TABLE OF AUTHORITIES......................................................................................... iii INTEREST OF AMICUS CURIAE................................................................................. 1 STATEMENT OF THE CASE....................................................................................... 2 SUMMARY OF THE ARGUM ENT.............................................................................4 ARGUMENT.................................................................................................................... 5 I. The Rulings o f the District Court Comport With the Way in Which Tennessee Implements Its NPDES Permitting Program and Its SolidWaste-Management Program ...............................................................................5 II. The Remedy Ordered by the District Court Comports With Tennesse's Own Corrective-Action Determination.............................................................14 CONCLUSION............................................................................................................... 18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE Sierra Club v. EPA 18cv3472 NDCA ii Tier 2 ED 002061 00159776-00171 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 3 TABLE OF AUTHORITIES Cases Page(s) California Pub. Interest Grp. v. Shell Oil Co., 840 F. Supp. 712 (N.D. Cal. 1993).......................................................................7 Denius v. Dunlap, 330 F.3d 919 (7th Cir. 2003)............................................................................... 6 Friends o f the Earth v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000)............................................................................... 5 Piney Run Pres. Ass 'n v. County Comm 'rs o f Carroll County, 268 F.3d 255 (4th Cir. 2001)............................................................................... 6 Pub. Interest Research Grp. o f New Jersey v. Yates, 790 F. Supp. 511 (D.N.J. 1991)............................................................................8 Ritter v. Cecil Cnty. Office ofHous. & Crnty. Dev., 33 F.3d 323 (4th Cir. 1994).................................................................................. 7 Sierra Club v. Louisville Gas & Electric Co., No. 3:14-cv-391-DJH, 2015 WL 5105216 (W.D. Ky. Aug. 31, 2 0 1 5 )..........7 State ofTenn. et al. v. Tenn. Valley Auth., No. 15-0023-IV (Davidson Cnty. Chane. Ct.).............................................2, 14 State ofTenn. et al. v. Tenn. Valley Auth., No. 3:17-cv-01139 (M.D. T enn.)........................................................................ 2 United States v. BioPort Corp., 270 F. Supp. 2d 968 (W.D. Mich. 2003),a f f d 388 F.3d209 (6th Cir. 2004)...6 Statutes 33 U.S.C. 1251-1387 .................................................................................................. 5 33 U.S.C. 1311............................................................................................................... 5 iii Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00172 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 4 33 U.S.C. 1342...........................................................................................................6 ,7 Term. Code Ann. 68-211-103.................................................................................... 11 Tenn. Code Ann. 68-211-104.................................................................................... 11 Tenn. Code Ann. 68-211-105.................................................................................... 10 Tenn. Code Ann. 68-211-106.................................................................................... 12 Tenn. Code Ann. 69-3-102......................................................................................1, 7 Other Authorities Environmental Protection Agency, NPDES Permit Basics, https://www.epa.gov/npdes/npdes-permit-basics......................................................... 6 Tennessee Department of Environment and Conservation, NPDES Permits, https: //www. tn. gov/environment/permit-permits/water-permits 1/npdespermitsl/national-pollutant-discharge-elimination-system--npdes--permit.html.... 8 Rules Fed. R. App. P. 2 9 ............................................................................................................. 1 Fed. R. Evid. 2 0 1 ..............................................................................................................6 46 Fed. Reg. 51644...........................................................................................................7 51 Fed. Reg. 32834...........................................................................................................7 Tenn. Comp. R. & Regs. 0400-11-01-,04............................................................. 11, 16 Tenn. Comp. R. & Regs. 0400-40-05-.01.................................................................... 10 Tenn. Comp. R. & Regs. 0400-40-05-.02................................................................ 8, 9 Tenn. Comp. R. & Regs. 0400-40-05-,06................................................................... 9 Tenn. Comp. R. & Regs. 0400-40-05-,07................................................................... 10 iv Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00173 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 5 I N T E R E S T O F AMICUS CURIAE The State o f Tennessee submits this brief under Fed. R. App. P. 29(a)(2) as amicus curiae in support of the Plaintiffs-Appellees, Tennessee Clean Water Network and Tennessee Scenic Rivers Association. The people of Tennessee have a right to unpolluted waters, and the State of Tennessee has a statutory obligation "to take all prudent steps to secure, protect, and preserve this right." Tenn. Code Ann. 69-3-102(a). Since this case involves rulings o f the district court that the Defendant-Appellee, Tennessee Valley Authority, violated the Clean Water Act by discharging pollutants from its plant near Gallatin, Tennessee, into Tennessee's Cumberland River, the State of Tennessee has an obvious interest in the outcome of this appeal. With respect to the issues raised that relate to Tennessee's regulation of the Defendant's Gallatin plant,*1 the State has a particular interest in ensuring that this Court has an accurate understanding of how the Tennessee Department of Environment and Conservation (TDEC) interprets and implements both its federally authorized National Pollutant Discharge Elimination System (NPDES) permitting program and its solid-waste-management program. 1See Br. Defendant-Appellant, 2 (Issue 2); Br. Plaintiffs-Appellees, 2 (Issues 3 and 4). 1 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00174 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 8 With respect to the issues raised regarding the relief awarded by the district court,2 the State also has a specific interest in the remedy ordered by the lower court for closure o f the Defendant's wastewater-treatment impoundments. The district court's remedy--that the coal-ash waste located on two sites at the Defendant's Gallatin plant must be excavated and relocated-- is consistent with the conclusion TDEC has independently reached as a result of the environmental investigation and evaluation conducted as part o f its related state-court enforcement action against the Defendant.3 STATEMENT OF THE CASE The complaint alleged that the Defendant is in violation of the Clean Water Act because there are unauthorized wastewater discharges at its Gallatin facility resulting from leakage directly to surface waters of the United States, and through leakage to groundwater that is hydrologically connected to these surface waters. (Compl., RE 1, Page ID # 1, 38-46.) The complaint also alleged that these 2See Br. Defendant-Appellant, 2 (Issue 3); Br. Plaintiffs-Appellees, 2 (Issue 5). The State takes no position with regard to the remaining issues presented. 3 See State o f Term., et al. v. Term. Valley Auth., No. 15-0023-IV (Davidson Cnty. Chanc. Ct.) (filed Jan. 7,2015, and alleging violations o f the Tennessee Solid Waste Disposal Act, the Tennessee Water Quality Control Act, and the NPDES permit at the Defendant's Gallatin plant). The Defendant subsequently removed the case to federal court, see State o f Tenn. et al. v. Tenn. Valley Auth., No. 3:17-cv-01139 (M.D. Tenn.). The State's motion to remand is currently under advisement. 2 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00175 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 7 unauthorized discharges violate certain conditions of the Defendant's NPDES permit. (Compl., RE 1, Page ID # 47-52.) The district court entered judgment in favor o f the Plaintiffs, ruling that there are discharges of wastewater from two sites at the Defendant's facility (the "NonRegistered Site" and "Ash Pond Complex") through leakage to surface waters, and through leakage to groundwater that is hydrologically connected to surface water, and that these discharges are not authorized by the Defendant's NPDES permit. (Order, RE 259, Page ID # 10543; Findings o f Fact & Conclusions o f Law, RE 258, Page ID # 10519-32.) The district court also ruled that these unauthorized discharges violate the "removed substances" provision of the Defendant's NPDES permit, which the court construed as addressing the integrity of the wastewater-treatmentand-control system, and the permit condition prohibiting discharges from the system at other than permitted discharge locations. (FF&CL, RE 258, Page ID # 1053234.) To remedy the ongoing Clean Water Act violations caused by these unauthorized discharges, the district court granted the Plaintiffs' request for injunctive relief and ordered the Defendant to excavate the coal-ash and relocate it to a lined facility. (Order, RE 259, Page ID # 10543.) Because o f the costs associated with the injunctive remedy, the court did not assess civil penalties against the Defendant for the violations. (Order, RE 259, Page ID # 10543.) 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00176 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 8 SUMMARY OF THE ARGUMENT The rulings of the district court regarding the NPDES permit issued by Tennessee for the Defendant's Ash Pond Complex comport with how TDEC interprets and implements its NPDES permitting program and its solid-wastemanagement program. While the court reached a number o f specific conclusions, it essentially ruled that the discharges o f pollutants for which the Defendant was ultimately held liable had not been authorized, either expressly or impliedly, by the NPDES permit. Tennessee is authorized by the federal Environmental Protection Agency (EPA) to issue NPDES permits. TDEC operates the NPDES permitting program under the authority of the Tennessee Water Quality Control Act (TWQCA) and issues NPDES permits for discharges of treated wastewater to the surface waters of the state. TDEC does not authorize discharges to groundwater through NPDES permits, but instead regulates groundwater under the Tennessee Solid Waste Disposal Act (SWDA), as well as its general authority under the TWQCA. When a coal-ash wastewater-treatment impoundment ceases operation, it is no longer regulated by TDEC's NPDES permitting program, and its closure is regulated as sol id-waste disposal under the SWDA. A coal-ash wastewatertreatment impoundment that ceased operation before the enactment of either the Sierra Club v. EPA 18cv3472 NDCA 4 Tier 2 ED 002061 00159776-00177 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 9 Clean Water Act or TWQCA's permitting requirements is referred to as a NonRegistered Site. These locations are also regulated under the SWDA. The remedy ordered by the district court comports with TDEC's own corrective-action determination for the two sites at the Defendant's Gallatin facility: excavation and relocation of the coal-ash waste to an expansion of an existing landfill on the Defendant's Gallatin site. This determination was the result of an intensive investigation and evaluation conducted as part of a related state-court enforcement action agai nst the Defendant. Consistent with state sol id-wastemanagement regulations, this investigation and evaluation included an economic analysis, evaluating the potential costs of various remedial options. TDEC thus determined that excavation and relocation on-site was necessary, and that a closurein-place remedy would be ineffective, based on TDEC's consideration o f both environmental protection and the potential economic impact to Tennessee ratepayers. ARGUMENT I. THE RULINGS OF THE DISTRICT COURT COMPORT WITH THE WAY IN WHICH TENNESSEE IMPLEMENTS ITS NPDES PERM ITTING PROGRAM AND ITS SOLID-WASTE- MANAGEMENT PROGRAM. The Clean Water Act (CWA), 33 U.S.C. 1251-1387, prohibits the "discharge of any pollutant" into the waters of the United States except "as in compliance with [the CWA]." 33 U.S.C. 1311(a); Friends o f the Earth v. Gaston 5 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00178 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 10 Copper Recycling Corp., 204 F.3d 149, 151 (4th Cir. 2000) (recognizing 1311(a) as "the centerpiece of the Clean Water Act"). As the Fourth Circuit recognized in Piney Run Pres. Ass 'n v. County Comm 'rs o f Carroll County, 268 F.3d 255 (4th Cir. 2001), "[t]he primary exception to the blanket liability imposed by the CWA is the NPDES permitting system." Piney Run, 268 F.3d at 265 (citing Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977)). NPDES permits address water pollution by regulating point sources that discharge pollutants into the waters of the United States. The CWA expressly requires all entities that discharge pollutants into the navigable waters of the United States to obtain an NPDES permit from the EPA in accordance with standards set by the Administrator o f the agency. 33 U.S.C. 1342(a). NPDES permits "contain limits on what [the permittee] can discharge, monitoring and reporting requirements, and other provisions to ensure that the discharge does not hurt water quality or [public] health."4*6The EPA, however, may 4 Environmental Protection Agency, NPDES Permit Basics, https://www.epa.gov/npdes/npdes-permit-basics (last visited Feb. 16, 2018). The Court may properly take judicial notice of the information on this official government website. See Fed. R. Evid. 201(b); Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003); see also United States v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003) ("Public records and government documents are generally considered not to be subject to reasonable dispute . . . include[ing] public records and government documents available from reliable sources on the Internet."), a ff'd 388 F.3d 209 (6th Cir. 2004). 6 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00179 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 11 authorize a state to issue NPDES permits in its place if the state permitting program is at least equal to that under the CWA.5*733 U.S.C. 1342(b). Since 1977, the EPA has authorized Tennessee, through its Department of Environment and Conservation, to issue NPDES permits under the provisions o f the Tennessee Water Quality Control Act. 51 Fed. Reg. 32834 (Sept. 16,1986); 46 Fed. Reg. 51644 (Oct. 21,1981). Indeed, the TWQCA was adopted, in part, "to enable the state to qualify for full participation in the national pollutant discharge elimination system (NPDES) established under 402 of the [CWA]." Tenn. Code Ann. 69-3-102(c). An NPDES permit "is akin to any agency regulation or rule, which a court would normally interpret." California Pub. Interest Grp. v. Shell Oil Co., 840 F. Supp. 712, 716 (N.D. Cal. 1993). Because NPDES permits are similar to agency regulations, courts often defer to an agency's reasonable construction of the permit. Id. at 716; see Ritter v. Cecil Cnty. Office o fHous. & Cmty. Dev., 33 F.3d 323, 32728 (4th Cir. 1994) (recognizing that "it is appropriate for [the court] to show some deference to a state agency interpreting regulations under the authority of a federally created program"); Sierra Club v. Louisville Gas & Electric Co., No. 3:14-cv-391- 5 EPA's authorization o f a state permitting program affirms that the state program meets the requirements of the CWA. A discharge permit issued by an authorized state therefore also meets the requirements for an EPA-issued discharge permit under the CWA, so the state permittee need not also obtain the federal permit. 7 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00180 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 12 DJH, 2015 WL 5105216, at *4 (W.D. Ky. Aug. 31, 2015) (recognizing an NPDES permit as a form of regulation and that agencies are entitled to deference in interpretations o f their own regulations); Pub. Interest Research Grp. o fNew Jersey v. Yates, 790 F. Supp. 511, 514 (D.N.J. 1991) (deferring to agency's interpretation to clarify ambiguity in NPDES permit because the court "should give considerable deference to the judgment o f the enforcing agency"). Tennessee's NPDES Permitting Program TDEC's Division of Water Resources (the Division) issues NPDES permits in Tennessee. See Tenn. Comp. R. & Regs. 0400-40-05-,02(63) (defining "permit" as "an authorization, license, or equivalent control document issued by the Division o f Water Resources which implements the requirements of the TWQCA"). To obtain a permit, the candidate first submits a complete permit application to the Division. The application must include both general identifying information and specific wastewater-discharge information, including information concerning "flows, source of pollution and treatment technologies, production and improvements to reduce pollutants in the discharge, intake and effluent characteristics, potential discharges not covered by the [permittee's wastewater discharge] analysis, and biological toxicity testing data."6*8 After receiving a 6 Tennessee Department of Environment and Conservation, NPDES Permits, https: //www. tn. gov/environment/permit-permits/water-permits 1/npdes- 8 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00181 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 13 complete application, the Division prepares a draft permit based on the information contained in the application. The draft permit then goes through a public-noticeand-comment period, and thereafter a final permit decision is made. TDEC rules also require that a fact sheet-- a "permit rationale"--be made available to the public during the permitting process. Tenn. Comp. R. & Regs. 040040-05-,06(2). These documents contain supporting information, such as calculations and explanations of specific effluent limitations and the factual basis for preparing the permit. Tenn. Comp. R. &Regs. 0400-40-05-,02(72); 0400-40-05-,06(3). These materials may also contain comments received during a permit's public-notice-andcomment period. TDEC attempts to answer all questions and comments as they are received, as required by TDEC's public-participation rules. See Tenn. Comp. R. & Regs. 0400-40-05-,06. Once issued, the NPDES permit is the only document that authorizes the discharge of pollutants to surface waters through identified discharge locations (outfalls). Neither a permit rationale nor any other supporting documentation authorizes any activity. Nor are these supporting documents themselves enforceable. Only an issued NPDES permit contains the requirements, limitations, permitsl/national-pollutant-discharge-elimination-system--npdes--permit.html (last visited Feb. 17, 2018). 9 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00182 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 14 and conditions deemed necessary for a subject facility to discharge into a receiving stream or body o f water. The NPDES permit identifies on its face the authorized discharger, the authorized discharges, including effluent content and outfall, the authorized facility, and the receiving stream.7 Any discharge not identified as authorized by the permit is, accordingly, unauthorized. Tenn. Comp. R. & Regs. 0400-40-05-,01; 0400-40-05-.07(2)(a).8*10 The TWQCA's NPDES permitting process is modeled on the CWA's; therefore, TDEC's NPDES permitting program likewise focuses on discharges to surface water. In TDEC's view, NPDES permits do not authorize discharges of wastewater to groundwater; consequently, TDEC does not seek to regulate groundwater through its NPDES permitting program. T ennessee's Solid- Waste-Management Program TDEC regulates groundwater under the Tennessee Solid Waste Disposal Act, as well as its general authority under the TWQCA. The SWDA provides that a solidwaste disposal facility must be "capable o f containing the disposed wastes, so that groundwater protection standards are not exceeded." Tenn. Code Ann. 68-211- 7See, e.g., Comp., Ex. 2, Permit No. TN0005428, RE 1-2, Page ID # 58. 8See also Comp., Ex. 2, RE 1-2, Page ID # 78 (providingthat "[a]ll discharges shall be consistent with the terms and conditions of this permit"). 10 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00183 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 15 105(g)(2). "Solid waste" is comprehensively defined under the SWDA and includes "byproducts, scrap, ash, sludge, and all discharged material including solid . . . [or] semisolid . . . material resulting from industrial. . . operations." Tenn. Code Ann. 68-211-103(8)(A). "Solid waste disposal" is defined as "the process o f permanently or indefinitely placing, confining, compacting, or covering solid waste." Tenn. Code Ann. 68-211-103(9). It is a violation o f the SWDA to "[p]lace or deposit any solid waste into the waters o f the state except in a manner approved by TDEC or the Tennessee board o f water quality, oil and gas." Tenn. Code Ann. 68-211-104(1). The SWDA's implementing rules and regulations specifically contain provisions concerning groundwater-monitoring requirements and corrective-action requirements if groundwater protection standards are violated. Tenn. Comp. R. & Regs. 0400-11-01-.04(7). But for an exception, a coal-ash wastewater-treatment impoundment, like the Defendant's Ash Pond Complex at its Gallatin plant, would be considered a "solid waste disposal" facility and therefore subject to regulation under the SWDA. Excepted from the definition of "solid waste," though, are "solid or dissolved materials in . . . industrial discharges that are point sources subject to [NPDES permits]." Tenn. Code Ann. 68-211-103(8)(B)(i). A facility or system that is regulated through TDEC's NPDES permitting program, therefore, is temporarily 11 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00184 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 16 exempted from regulation under the SWDA. Because leakage from an NPDES permitted impoundment that causes exceedances of groundwater protection standards is exempted from SWDA regulation, TDEC addresses it through TWQCA enforcement. But once the facility or system, or part of a system, ceases to function as part o f a wastewater-treatment process, it no longer qualifies for an NPDES permit and is again subject to TDEC's regulatory authority under the SWDA.9 A coal-ash wastewater-treatment impoundment that ceased operation before the enactment o f either the CWA or TWrQC A 's permitting requirements, like the one at Defendant's Gallatin plant, is referred to by TDEC as a Non-Registered Site or NRS. These locations are not currently, nor have they ever been, subject to NPDES permitting. TDEC regulates these NRS locations under the SWDA.10*12 Tenn. Code Ann. 68-211-102(3). It does so not by regulatory choice, but in compliance with the plain language and limitations o f its statutory authority. 9See Tenn. Code Ann. 68-21 l-106(j) (making provision for TDEC to approve "the disposal of coal ash" generated from what were "wastewater treatment units" by means other than in a permitted, lined facility (such as closure-in-place) so long as groundwater protection standards are not exceeded). 10 NRS locations are subject to the SWDA because they are solid-waste disposal sites, but because these facilities existed before TDEC had established a solid-waste disposal regulatory program, NRS locations do not have solid-waste disposal permits. 12 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00185 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 17 The District Court's Rulings The district court's rulings in this case regarding the NPDES permit issued to the Defendant comport with how TDEC interprets and implements its NPDES permitting program and its solid-waste-management program. The district court essentially ruled that the discharges of pollutants for which the Defendant was ultimately held liable had not been authorized, either expressly or impliedly, by the NPDES permit. Specifically, the court concluded that the Defendant's NPDES permit authorized discharges only from the Ash Pond Complex and not from the Non-Registered Site. (FF&CL, RE 258, Page ID # 10520.) The district court also concluded that the NPDES permit authorized discharges of coal-ash wastewater from only one outfall at the Ash Pond Complex and that nothing in the permit expressly authorized the discharge of pollutants from leaks in that complex. (FF&CL, RE 258, Page ID ## 10428, 10531.) The district court further concluded that the Defendant had failed to establish that "leaks o f the types demonstrated by Plaintiffs" (i.e., "groundwater leaks" in the floors of the unlined ponds of the complex11) had been considered and authorized under the permit.12 (FF&CL, RE 258, Page ID # 10532.)123 11 FF&CL, RE 258, Page ID ## 10522, 10528. 12 The court determined that when TDEC issued the NPDES permit, it was aware that the unlined ponds of the complex would continue to experience "some ongoing 13 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00186 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 18 IL THE REMEDY ORDERED BY THE DISTRICT COURT COMPORTS W ITH TENNESSEE'S OWN CORRECTIVE-ACTION DETERMINATION. The remedy ordered by the district court--excavation and relocation to a lined facility of the coal-ash waste at the Non-Registered Site and Ash Pond Complex-- comports with the corrective-action determination that TDEC has independently reached: excavation and removal o f the coal-ash waste to a lined expansion o f an existing landfill on the Defendant's Gallatin site. Like the district court, TDEC has determined that a closure-in-place remedy would be an ineffective corrective-action for the Gallatin facility. Excavation and on-site relocation, however, is a remedy that is both environmentally protective and economically feasible, both for the Defendant and for the citizens of Tennessee. TDEC has reached its determination as the result of a lengthy and involved investigation and evaluation conducted as part of the related state-court enforcement action against the Defendant, State o f Tenn. et al. v. Term. Valley Auth., No. 150023-IV (Davidson Cnty. Chanc. Ct.). TDEC initially reviewed more than 100,000 pages of information regarding the historic construction and operation of the Gallatin facility. It also reviewed limited historic groundwater-monitoring data and participated in some groundwater-sampling events at the Gallatin plant. But faced14 seepage through its d ik es" FF&CL, RE 258, Page ID # 10532 (emphasis added). See also FF&CL, RE 258, Page ID # 10530 ("TDEC . . . anticipated only seeps so minor that they would be difficult to quantify or measure empirically."). 14 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00187 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 19 with insufficient information concerning the current hydrology and geology of the site, including the potential for releases of coal-ash material to the surface and/or groundwater, TDEC concluded that additional investigation was necessary. TDEC and the Defendant therefore agreed to a process for an extensive environmental investigation to inform TDEC's selection of the appropriate closure remedy for the two sites at Defendant's Gallatin facility. That agreement is set forth in an agreed temporary injunction entered in the state-court enforcement action. (Agreed Temporary Inj., RE 42-2, Page ID# 146775.) It generated the development of a comprehensive, highly detailed, approximately 3,000-page Environmental Investigation Plan (EIP).13145 The Defendant, with TDEC oversight, has implemented the EIP over a nearly two-year period, and that implementation has resulted in the Defendant's submission o f more than 12 hard-drives' worth of data.14 TDEC's analysis and evaluation of that sitespecific data led TDEC to its corrective-action determination for the Gallatin sites. 13 There are numerous references to "the EIP" or "EIP process" in the record. See, e.g., Trial Tr. (Vol. 1), RE 234, Page ID # 8820, 8849-50; Trial Tr. (Vol. 3), RE 236, Page ID # 9202-03, 9208-09, 9352-53, 9399-9405; Trial Tr. (Vol. 4) RE 237, Page ID # 9412-14, 9481-82, 9550-51, 9572. These references generally include, but are not limited to, the EIP document itself, actual investigation activities, and the data gathered through the investigation activities. 14 The district court properly limited discussion o f the EIP in the federal case, as it is part of the State's enforcement action; therefore, the State will not discuss the specifics of the gathered information. The State acknowledges that the Defendant 15 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00188 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 20 In reaching its determination, TDEC thoroughly considered all correctiveaction options, including those advanced by the parties in this case.15 Consideration of the various options involved not only an examination of the data generated through the ongoing environmental investigation and whether a proposed remedy would likely result in effective environmental remediation, but also a detailed analysis exploring the potential associated costs of a remedy and the resulting possible impacts to Tennessee ratepayers.*156 TDEC's approach is consistent with the SWDA's implementing regulation entitled "Assessment o f Corrective Measures," which specifically requires that the evaluation o f "potential remedies" include consideration o f "[t]he cost o f remedy implementation." Tenn. Comp. R. & Regs. will have an opportunity in the state-court action to challenge TDEC's correctiveaction determination. 15 TDEC had not yet made its corrective-action determination under the Agreed Temporary Injunction when the district court entered its judgment on August 4, 2017. But on June 6, 2017, the district court sought an update on the status of the state-court litigation, Order, RE 250, Page ID # 10249-50, and documents filed in response may have informed the court o f the direction in which TDEC was leaning. See Redline of Draft Notice o f Compliance, RE 251-11, Page ID ## 10332-33 (filed as an attachment to Defendant's Notice of Compliance, RE 251, Page ID # 10251). 16TDEC's economic-impact analysis included examination o f financial information that included the Defendant's historic and announced rate increases, its public regulatory filings with the Securities and Exchange Commission, and publicly available information regarding costs to customers from previous enforcement actions involving the Defendant. 16 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00189 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 21 0400-11-0 l-.04(7)(a)7.(iii)(IH). TDEC has concluded from its evaluation that the costs of a closure-in-place remedy have the potential to be significantly higher than the costs projected at trial.17 The State recognizes that the costs o f an excavationand-removal remedy will no doubt be "substantial." (Order, RE 259, Page ID # 10543.) But TDEC has also concluded that if the coal-ash waste is removed and relocated to an expansion o f the existing, permitted landfill at the Defendant's Gallatin facility, those costs will be significantly lower than those projected at trial, which were based on off-sitQ relocation.18 The State o f Tennessee is equally concerned with protecting the public and protecting the environment. As Tennessee's environmental regulatory authority, TDEC is charged with representing the citizens o f Tennessee, so it has responsibility to consider both environmental and economic concerns in making its regulatory decisions. The corrective-action determination it has reached with respect to the sites at Defendant's Gallatin plant represents a proper balancing of those interests. 17See Testimony o f John Kammeyer, RE 237, Page ID # 9520 (relating that "TVA's current estimated cost for closure in place at Gallatin is 230 million"). 18See Testimony o f John Kammeyer, RE 237, Page ID # 9520 (relating that "TVA's estimated cost for the excavation and offsite relocation of CCR [coal-ash] material . . . is approximately 2 billion"). 17 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00190 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 22 The State supports the remedy ordered by the district court in this case, as it comports with TDEC's own determination. CONCLUSION For the reasons stated, the judgment of the district court should be affirmed. Dated: March 22, 2018 Sierra Club v. EPA 18cv3472 NDCA Respectfully submitted, HERBERT H. SLATERY III Attorney General & Reporter ANDRE S. BLUMSTEIN Solicitor General BARRY TURNER Deputy Attorney General Environmental Division s/Emily B. Vann_____________ EMILY B. VANN Assistant Attorney General Environmental Division Office of the Attorney General P.O. Box 20207 Nashville, TN 37202-0207 615-532-2583 telephone 615-741-8724 fax emily.vann@ag.tn.gov Counselfo r Amicus Curiae State o f Tennessee18 18 Tier 2 ED 002061 00159776-00191 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 23 CERTIFICATE OF COMPLIANCE 1. This document complies with the length limited o f Fed. R. App. P. 29(a)(5) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) and Fed. R. App. P. 27(a)(2)(B), this document contains 3,869 words. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style required o f Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14-point Time New Roman font. Dated: March 22, 2018 s/Emily B. Vann_____________ EMILY B. VANN Assistant Attorney General Counselfo r Amicus Curiae State o f Tennessee Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00192 Case: 17-6155 Document: 74 Filed: 03/22/2018 Page: 24 CERTIFICATE OF SERVICE I hereby certify that on March 22, 2018, a true and correct copy of the foregoing B rief o f the State o f Tennessee as Amicus Curiae in Support ofPlaintiffsAppellees was filed with the Clerk of the United States Court of Appeals for the Sixth Circuit via the Court's CM/ECF system, which will serve an electronic copy on all counsel of record who are registered CM/ECF users. s/Emily B. Vann_____________ EMILY B. VANN Assistant Attorney General Counselfo r Amicus Curiae State o f Tennessee Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00159776-00193