The Clean Water Act and Groundwater Pollution: A Natural Fit or an Interpretive Stretch?

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Thursday, November 8, 2018 during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is The Clean Water Act and Groundwater Pollution: A Natural Fit or an Interpretive Stretch? My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are very fortunate to have with us Mr. Damien M. Schiff, who is a Senior Attorney at the Pacific Legal Foundation. After our speaker gives his remarks, we will move to an audience Q&A, so please keep in mind what questions you have for Damien or for the topic today. Thank you very much for speaking with us, Damien. The floor is yours.

 

Damien M. Schiff:  Thank you very much, Wes, and thank you very much to The Federalist Society for hosting this teleforum today with respect to an important issue—an emerging issue—one issue that actually may soon be addressed by the U.S. Supreme Court concerning the Clean Water Act. I'm sure many of you who are on the call today are familiar with aspects of the Clean Water Act, in particular the controversy that has surrounded the Act over the last several decades over the interpretation of waters of the United States. What we'll talk about today is another controversial issue of more recent vintage and one that dovetails somewhat with that waters controversy, but nevertheless, represents a distinct aspect of litigation efforts in the lower courts to expand the scope of the Clean Water Act—in particular here to expand the Clean Water Act to address at least some forms of groundwater pollution.

 

      For our discussion today, I'd like to begin with a little bit of background on how the Clean Water Act operates, its cooperative federalism structure, and then move right into a discussion of the cases, focusing on three recent circuit court of appeals decisions that have addressed whether and to what extent the Clean Water Act regulates groundwater pollution. And then finish up the discussion a little bit with my thoughts of the pros and cons of the various arguments that have been advanced as to why or why not groundwater pollution is relevant to the Clean Water Act.

 

      So starting off with a bit of background. The Clean Water Act is a cooperative federalism statute. By that I mean that although it establishes, sometimes pretty severe, federal standards for water quality throughout the 50 states, it delegates a substantial amount of the day-to-day permitting to the states themselves. So most states administer some form of Clean Water Act permitting. Most states also establish their own state water quality standards that the feds in turn approve. And so you have this cooperation between the federal government and the states in administering the Clean Water Act. But there's another aspect to the cooperative federalism framework, and that is what the Clean Water Act doesn't regulate at all. And we'll get to that in just a moment.

 

      But as far as the regulatory structure goes, when do you care about the Clean Water Act? Well, the permitting requirement under the Clean Water Act applies to, as the statute defines it, a discharge of a pollutant into navigable waters. Navigable waters [are] defined as waters of the United States. That, of course, has been a subject of significant controversy concerning the WOTUS rule. But that's only one element of Clean Water Act liability. The other element is not just that you have a regulated water present, but also that you have a discharge of a pollutant. And that in turn is defined as the addition of a pollutant from a point source. Now, I'm going into some detail here because how the statute regulates will really, I think, give light later on in the discussion to why perhaps it may not make sense, given this regulatory structure for the Clean Water Act to address groundwater pollution.

 

      So I just said one of the elements to Clean Water Act liability is that you have a pollutant discharge from a point source. So the courts have interpreted that to mean by implication that the Clean Water Act naturally, then, does not regulate nonpoint source discharges – that is the addition of a pollutant to a regulated water from a nonpoint source. Now, because the statute doesn't talk about this directly, the statute doesn't define what a nonpoint source is, but it does define what a point source is. A point source is what you would expect a ditch, a conveyance, a defying discreet tube, something that can channel pollutants and deliver them to another receiving body, a water body. So the courts have said, well, nonpoint source pollution—which is not regulated by the Clean Water Act, but just left to the states—is presumably the opposite of that. Sheet flow or stormwater that is washed off of a road without any channeling or without a ditch, or without pipe to concentrate the pollutants in that storm water.

 

      That's classically considered nonpoint source pollution, and why that matters is because, again, as part of the cooperative, federalism structure of the Clean Water Act, Congress expressly wrote the Act only to directly regulate point source pollution. So if something if nonpoint source pollution, it's not regulated by the Clean Water Act, even though back in the 1970s and even today nonpoint source pollution is a significant problem for water quality standards throughout the country. That fact isn't new, so we should take that into account when we think about whether and to what extent an interpretation of the Clean Water Act, by expanding liability, might upset this balance between the states and the feds as to who should be regulating what, particularly when it comes to nonpoint source pollution. So, again, to sum up there the basic, as I said, that basic permitting system is you need a permit if you discharge from a point source into a regulated water.

 

      Now, how does this apply to groundwater? Well, pretty much all of the courts that have addressed the issue, even those that have been otherwise friendly to expanding liability under the Clean Water Act, all the courts have basically said that groundwater itself is not a water of the United States. It is not a, quote, "navigable water." And what that means, then, is that there is no liability just simply because you have added a pollutant to groundwater itself. And part of the reason why the courts have been unanimous in that conclusion is that the statute is, in a sense, pretty clear about that.

 

      In several parts of the Clean Water Act, the statute talks about navigable waters and/or groundwaters. And so the implication is that if Congress is talking about the two types of waters as separate things, it wouldn't make much sense for a matter of statutory interpretation to assume that somehow groundwaters are included within navigable waters. Also, there were some legislative attempts to expressly regulate groundwater pollution as a water of the United States in the early 1970s, and those failed as well. So for those and other reasons, the courts have been consistent in saying, nope, groundwater itself is not a water of the United States. But nevertheless, as we'll learn in just a few minutes, some courts have indeed said that, well, even though groundwater itself is not a water of the United States, nevertheless, if you discharge a pollutant into groundwater and that groundwater carries that pollutant ultimately to a regulated surface water, you are, then, liable under the Clean Water Act.

 

      And so we have to ask ourselves what are the theories that would sustain liability under those circumstances? Well, the first circuit court of appeals to address that issue is from the Ninth Circuit Court of Appeals earlier this year in a case called Hawaii Wildlife Federation v. County of Maui. The case concerned an environmentalist lawsuit against the County of Maui for the county's operation of a sewage treatment plant on the island of Maui. This sewage treatment plant, it's about 40 years old, and like most such sewage treatment plants, it relies upon underground injection wells to dispose of the byproduct of the sewage treatment process, in particular recycled gray water. These underground injection wells then inject that recycled water into the soil beneath the sewage treatment plant. And because of the hydrogeology of the island of Maui, that groundwater, then, ultimately carries that recycled sewage treated water into the Pacific Ocean. Not through a pipe or anything discreet like that, but nevertheless the recycled water does eventually -- I think it takes about 15 months or so to get from the sewage treatment plant, underground, through the groundwater, into the Pacific Ocean, seeping up through hundreds of little fissures in the seabed.

 

      The environmentalist plaintiffs in the case said, well, you're discharging; clearly, your underground wells are point sources, and your recycled waste water is certainly a pollutant, and the Pacific Ocean is certainly a traditional navigable water. So you've discharged a pollutant and that's ended up in navigable waters; therefore, you are liable. The district court agreed and the Ninth Circuit affirmed. The Ninth Circuit's reasoning being that there is no requirement in the Clean Water Act that a pollutant discharge immediately reach a regulated water, and there are courts that have held that you can have an indirect discharge, and that this essentially is like an indirect discharge. You have a point source discharge; it ultimately gets to a regulated water by means of groundwater, but that doesn't really matter. There's still liability.

 

      Now, the Ninth Circuit did hedge a little bit and say, well, we do recognize that it may be difficult sometimes to tell whether one can be liable for this type of discharge because groundwater is diffused; it's sometimes hard to trace where it comes from. And so we'll impose a few limitations on this theory of liability – groundwater pollution liability in the Clean Water Act.

 

      First, there has to be more than a de minimis amount of pollution, and in the County of Maui's case, there certainly was more than a de minimis amount. But secondly, the pollution has to be fairly traceable to the original point source. And I think there the idea is that if you have a groundwater basin with a lot of different point sources above it equally polluting through discharges that end up into a surface water, you might have an evidentiary problem in figuring out who's responsible for which component to the pollution. And so I think that's what motivated the Ninth Circuit to adopt this fairly traceable limitation. But it wasn't much help for the County of Maui because part of the litigation involved a tracer dye test. And so they were able to trace the treated waste water from the Pacific Ocean back to the sewage treatment plant. And so the Ninth Circuit affirmed liability—the first court of appeals, I should mention, to do so.

 

      But shortly thereafter, the Ninth Circuit was joined, excuse me, by the Fourth Circuit Court of Appeals—Upstate Forever v. Kinder Morgan, another environmentalist lawsuit, citizen suit, under the Clean Water Act, brought against Kinder Morgan, a company that operate a fairly substantial underground gasoline pipeline through various states on the Eastern seaboard. In this case, Kinder Morgan's gasoline pipeline ruptured in South Carolina, spilling several hundred thousand gallons of gasoline, which made it into the groundwater and then ultimately it is being carried to a couple of regulated creeks and streams in South Carolina. Again, same theory of liability that was offered by the environmental groups that the pipeline is obviously a point source, gasoline is obviously a pollutant, and the creeks in that case were undisputed to be regulated surface waters so there should be liability. And the Fourth Circuit ruled 2-1 that yes, following the Ninth Circuit, basically, that there's no reason why liability should not attach here; that you have a point source discharge, it was -- the pollution was conveyed by the groundwater, but ultimately it ended up in this regulated surface water. And that's really what the Clean Water Act is all about, keeping point source pollution out of the waters of the United States.

 

      And so the Fourth Circuit, as I said, affirmed liability using a somewhat different formation though than the Ninth Circuit. If you recall, the Ninth Circuit said, well, at the very least your groundwater discharge has to be fairly traceable to the source. The Fourth Circuit said well, we're going to adopt somewhat different phrasing; we're going to say that it -- not so much that it has to be fairly traceable, but rather that there must be a direct hydrological connection. And one reason why I think the Fourth Circuit preferred that interpretation or that phrasing is that for some time, the EPA through what one might call informal statements or guidance has stated that it also believes that groundwater pollution can be regulated under the Clean Water Act if there is a direct hydrological connection between the original point source and the surface water that ultimately receives the polluted groundwater.

 

      And so as I said, the Fourth Circuit agreed ultimately with Hawaii Wildlife Fund that, yes, in the Ninth Circuit that there's no reason why the liability shouldn't attach here. Now, what is really going on here in terms of the theory of liability? Well, again, they said that at the start of the conference no court has said that groundwater itself is a water of the United States, and neither Hawaii Wildlife Fund nor Upstate Forever found that groundwater itself if a point source. And so there must be some other theory going on here as to why there would be liability.

 

      And it's what many commentators have called the conduit theory, which is kind of an unhappy description of the theory because a conduit is actually one of the types of things that qualifies as a point source. And the idea of a conduit theory is that even if there is no point source, there's still liability. But in any event, the conduit theory basically says that as long as you think you've got a point source discharge of pollutants, those pollutants basically remain point source pollution forever. So that so long as that pollution ultimately gets to a regulated water, there's liability. It doesn’t really matter how it happens, whether it's trucked, whether it's channeled, or whether it's transported in a diffused fashion through groundwater. It doesn't matter. What matters is that was it discharged from a point source? Yes. Did it end up in a regulated water? Yes. There's liability.

 

      I mentioned that there are three circuit cases -- circuit court cases that have addressed this issue. The third one, just two months ago, from the Sixth Circuit expressly went the other way. Actually a pair of cases—Kentucky Waterways Alliance v. Kentucky Utilities and Tennessee Clean Water Network v. TVA—cases, both in the Sixth Circuit, decided the same day and basically the same set of facts: the defendants here are coal-fired power plants, and one of the byproducts of producing power through coal is you get a lot of coal ash. This ash, then, is basically deposited on site [and] stored permanently. Unfortunately, sometimes if it's not stored well, or even if it is stored well, pollutants within that coal ash can leach into the groundwater beneath the power plant, and then of course we have the same factual pattern that we've been talking about in the other cases: that polluted groundwater then travels to a nearby regulated surface water and then you have environmentalist lawsuits here, again, challenging that pollution under the Clean Water Act.

 

      But here, unlike in the Fourth and Ninth Circuits, the Sixth Circuit here said that there is no liability. And I think you could describe the court's rationale as being both a textualist rationale as well as sort of a purposive-ist rationale. As far as the textualist rationale goes, the Sixth Circuit focused on the fact that when you need a permit under the Clean Water Act, one of the important aspects of a permit is the effluent limitation that either EPA or the relevant state agency will require you to meet, meaning how dirty is your pollution or how clean must it be before you're given a permit in order to discharge that effluent. And the court, though, noted that effluent limitation is defined in such a way that it requires how much goes into a regulated water. And the court really focused on that word "into." It thought that that really must mean that you can't really have much of a separation. You have to have the point source, you have to have the pollution, and then you basically have to have shortly thereafter the receipt by the regulated water. If you have a lot of time or a lot of transport in between those two things, then that's not something that is a discharge of a pollution into a regulated water, and therefore the Clean Water Act, as a matter of textual analysis, doesn't reach it.

 

      The more purpose-based rationale that the Sixth Circuit used was one that was particularly relevant to these cases. Again, the defendants were coal-fired power plants and the pollution was derived from coal ash. Well, there's a separate federal law called the Resource Conservation and Recovery Act, which expressly regulates, or takes into account, groundwater pollution. And under that Act, EPA has promulgated an express rule governing how to properly store and avoid pollution from coal-fired power plant and coal ash. And so the Sixth Circuit said, look, we already have, in addition to state and local laws, we have a federal framework already in place that deals with this precise issue. Why would we want to contort the Clean Water Act to reach something that clearly is already being addressed by federal as well as other government's law? And so the Sixth Circuit, as I said, 2-1, though, but the Sixth Circuit did expressly disagree with both the Fourth and Ninth Circuit and said that basically there is no such things as a conduit theory of liability, and thus groundwater pollution, although it may be regulated under other laws – federal, state, and local laws – it's not regulated by the Clean Water Act.

 

      There are two cert petitions pending, raising this very issue – the conduit theory. A cert petition has been filed by the County of Maui in the Ninth Circuit case, as well as by Kinder Morgan in the Fourth Circuit case. Those cert petitions have been fully briefed fairly recently. But given the circuit split, now, between the Fourth and Ninth Circuits on one side and the Sixth Circuit on the other side, I think there's a fairly good chance that the Supreme Court may be interested in these petitions. But before we get to that, I'd like to step back a little bit and just give my thoughts on what are the best arguments, pro and con, for groundwater regulation under the Clean Water Act.

 

      I would say that probably the strongest argument that, say, the Ninth Circuit and the Fourth Circuit used, and one that has been used by basically all the district courts that have gone that way as well, is one based upon the purpose of the act. Clearly, Congress wanted to prevent the nation's waters from being polluted, especially by point source pollution. If one does not regulate groundwater pollution, doesn't that, then, create a big loophole? What would stop, say, under the Sixth Circuit's view of having a requirement of a direct discharge, what would prevent an enterprising polluter from simply dumping a lot of hazardous waste a few feet from the edge of a riverbank and then allowing the rains to naturally wash that pollution into the riverbank? There isn't a direct, immediate discharge there, does that mean that the polluter has completely avoided liability? I think that is a strong argument.

 

      What is the counterargument? Well, I think the counterargument has to take into account two things: one, it has to take into account how the pollution actually gets to the regulated water. It's one thing to say if you have your pipe just a few feet from the regulated water, or say you spray something above the water from a helicopter or what have you, I think it's fair to say that the substantial cause of that pollution getting into the regulated water is, in fact, the relevant point source—whether it's the pipe that's nearby or whether it's the airplane flying over. I think it's fair to say that that would be the substantial cause, and it's appropriate to call that point source pollution.

 

      But in contrast, with most of these groundwater cases, by the time that groundwater pollution reaches the regulated water, it effectively is indistinguishable from what one would typically call nonpoint source pollution. If you go back to the top of the presentation where I mentioned that, classically, nonpoint source pollution—which everyone agrees is not regulated under the Clean Water Act—is classically considered storm water pollution, that sheet flow that you see during a rain that moves across a road. And all of the chemicals on that road, tire bits and what have you, gasoline – all that is in that fluid storm water, all that is considered nonpoint source pollution. It's diffused, it's not channeled. Well, that effectively is what this looks like when your groundwater is seeping, oozing through subterranean cervices, and ultimately discharging through hundreds of different points into whatever relevant surface water we're talking about.

 

      So qualitatively, I think you can say that, sure, these hypothetical of the enterprising polluter, that should still be point source pollution, but groundwater seems to be qualitatively quite different from that.

 

      But a second point in opposition, I think, is just, again, stepping back a little bit and asking ourselves, okay, the statute says "point source pollution is regulated; nonpoint source pollution is not regulated." We should, therefore, be careful to adopt a theory of liability that might substantially up into that balance, that might substantially convert a lot of what traditionally has been considered to be nonpoint source pollution into point source pollution. What do I mean by that? Well, the reality is most, quote, "nonpoint source pollution" is ultimately derived from point sources. Again, going back to the example of stormwater, the pollution that you find on a road, by and large, comes from vehicles. Vehicles are certainly point sources. But nevertheless, that hasn't stopped both the agencies, as well as the lower courts, from saying that sure, just that diffused storm water pollution, that's nonpoint source pollution. And that's something itself that Congress recognized in the original Clean Water Act.

 

      Well, if that is nonpoint source pollution, notwithstanding that, ultimately, most of the pollution in that stormwater came from point sources, then what's the big deal if we use that same rationale with respect to groundwater? Sure, Kinder Morgan – let's assume that the coal ash heaps that it owns are point sources. So is the vehicle that we drive on the roads that also contributes to pollution that ends up in regulated waters. What matters really is what does the pollution look like when it gets to the regulated water? Is it confined? Is it discreet? Is it channeled? Or is it instead diffused? And that, I think, ultimately results that basically almost all groundwater pollution, except the rare instance where you have an underground stream that is itself channelized, almost all groundwater pollution is going to look like nonpoint source pollution, and for that reason, really should be treated as nonpoint source pollution.

 

      Now, does that mean that we have a gaping hole in our water quality system in this country with respect to groundwater? By no means. As I mentioned before, of course, we do have, for example, the Resource Conservation and Recovery Act, which expressly regulates groundwater, and it also expressly regulates pollution from power plants, coal-fired power plants. But we have other federal laws. For example, the Safe Drinking Water Act expressly regulates the County of Maui's sewage treatment plant and sewage treatment plants like it throughout the country. This, of course, doesn't even take into account the numerous state and local laws that regulate the same type of pollution. And, in fact, that would be, if anything, inconsistent with Congress's, I believe, intent behind the Clean Water Act to leave groundwater principally to the states. The states haven't left it in the regulatory vacuum, they've also regulated it.

 

      I would like to conclude our discussion with just highlighting two additional points that are raised by the cert petitions that I mentioned that are currently pending in the Ninth Circuit and the Fourth Circuit cases, Hawaii Wildlife Fund and Upstate Forever. Hawaii Wildlife Fund v. Country of Maui raises a second issue, which I think is interesting, in addition to the conduit theory. The County also raises a fair notice objection because not only has the County operated the sewage treatment plant on the island of Maui for the last four decades, but it was specifically constructed according to EPA design. It was constructed, in part, with EPA funding, as I understand. And perhaps most importantly, it's been specifically permitted by the EPA under the Federal Safe Drinking Water Act. And so I think the County has a fair argument to say, "Hey, what kind of notice could we possibly have had? We're doing everything that the state and the feds are saying we need to do to comply with the law for our sewage treatment plant. Why, now, are all the rate pairs on the island going to be burdened with the retroactive liability?" And the Ninth Circuit said, "Well, of course you had fair notice because it's clear from the Clean Water Act that your pollution was regulated." That, I think, is really kind of a laughable argument. And so that is the second question presented in that petition.

 

      There's also a second question presented in the Upstate Forever v. Kinder Morgan case, which is also very interesting. And that is the question of what constitutes an ongoing violation? Now, why is that relevant? Well, in all these cases, these are citizen suits brought under the Clean Water Act. In the 1980s, the Supreme Court held that the Clean Water Act citizen suit provision only authorizes actions to abate ongoing violations, meaning you can't bring a citizen suit to penalize a violation that has already concluded. That would be left just to the relevant federal or state agencies. Here, Kinder Morgan -- if you recall the problem was they had a pipe burst underground. Well, Kinder Morgan fixed that pipe, and then two years after it had been completely fixed, the environmentalists brought their lawsuit. And so Kinder Morgan naturally argues, well, wait a second. The pipe is the discharge point, the discharge has stopped. There's no ongoing discharge. How can there be any basis to have a citizen suit? And the Fourth Circuit said, "Well, there is a basis because although your point source is no longer discharging, the pollution is still out there and it's still moving through that groundwater towards regulated surface waters. And so it's ongoing in that sense."

 

      Now, I do think that that is definitely an expansion of what qualifies as ongoing, and I think that would be an interesting issue separately for the Supreme Court to take up. But it would also have an interesting effect, not just on the scope of the citizen suit provision under Clean Water Act, but it also has an effect on statute of limitations. At least in the Ninth Circuit, the rule is—particularly with respect to dredge and fill material under the Clean Water Act—if you fill in an alleged wetland with, say, gravel in preparation for building a structure, and the EPA or the Army Corps says, "Well, you violated the Clean Water Act because you had no permits for doing that," the Ninth Circuit would say, "The statute of limitations will never run so long as you still have that gravel left on the wetland, that the discharge is still there; therefore, the violation is continuing, and there is no limitations period running."

 

      Now, that I think is wrong. And I think that that might be implicated by Kinder Morgan's second question presented as to at what point does a discharge stop, in particular after the point source itself is no longer discharging pollution?

 

      Well, that concludes my case in chief as it were. In summary before we go to questions, though, I would just, again, like to emphasize that the question of groundwater pollution is not a new one. It is a serious one, but it's not a new one. Groundwater has been polluted for a long time, and it's something that I think that Congress knew back in the '70s when it passed the Clean Water Act. It certainly knows it now. But just because there's a pollution problem doesn't mean that we have to contort a particular statute in order to reach it. And I think that's -- particularly that idea here with the Clean Water Act, not just because the Clean Water Act is not well-designed to regulate groundwater pollution, but also because you would have a real duplication of effort. This is not an area where there is a Wild West of groundwater pollution. It's heavily regulated at all levels of government. So this, I think, unfortunately, represents an effort to expand a statute to an area that it wasn't designed to meet, and it, frankly, is not an area for the federal government to be in to begin with.

 

      I appreciate your attention, and I'll hand it back over to Wes now for questions.

       

Wesley Hodges:  Thank you so much, Damien. As you said, let's go ahead and move to audience questions. Let's go ahead and move to our first caller.

 

Don Banevet (sp):  This is Don Banevet. I enjoyed your presentation. I think your summary was very good. There are other efforts underway to try to use the deposition of air emissions dropping on the ground and then being conveyed somehow by the water to allow the Clean Water Act -- to distend the Clean Water Act into air emissions. And I think that that's just another example. The answer is the Clean Water Act was never intended to regulate every drop of water carrying some kind of pollution. The groundwater flows, in fact, are very, very, very much less than the kind of surface water flows that they were dealing with, you know, the pollution flowing into the surface waters they were dealing with back in the '70s. We've substantially cleaned a lot of those up and so now they're looking for the higher hanging fruit, so to speak.

 

      And this idea of a hydraulic connection is fraught with practical issues as well. You can't measure the flows by the time this groundwater reaches whatever it's going to reach. You can't measure the concentrations because you can't measure the -- it's hard enough to measure the concentrations because you can't measure the flows either, so you can't get a mass emission rate, which leads to enforcement problems.

 

      And, finally, I would not suggest that anybody, enterprising or not, walk over near to a surface water with a bucket of hazardous waste because you'll be violating a bunch of other solid waste requirements before you even get to the state groundwater problem. So I think this is really just another effort by special interest environmental groups to use the citizen suit provision, which they like, to do whatever they want to do, whether it's extort settlements or stop development. But it was a great -- and I offer that as a comment, but your presentation was fantastic in terms of explaining this to those of us who aren't in it all the time. And I do think that the Supreme Court needs to weigh in. It's been an issue for many, many years. So thank you for your effort.

 

Damien M. Schiff:  Thank you very much for that comment. And I have to say certainly with respect to air deposition that, yes, that is, in a sense, using -- just as groundwater is being used as a conduit, other groups like to use air as the conduit in terms of ocean acidification or in terms of, say, coal deposits from railroads – that ash or deposition from the engine that then end up in regulated waters. That also is not a new theory of liability, and it's one I think that would be affected should the Supreme Court address the conduit theory.

 

      I also think you're absolutely right with respect to the problem of tracing liability. For example, the Fourth Circuit's articulation of the direct hydrological connection. I have no idea what a direct hydrological connection would be in the context of groundwater. You have a groundwater basin; it's one large basin, and you have pollutants in that basin. And basically all groundwater, ultimately, ends up connecting to surface water. So what is direct and what's an indirect connection? And I think that plays into the administrability problem of the conduit theory that, frankly, makes the case, I think, attractive to the Supreme Court.

 

      One reason why the Supreme Court has recently shown so much interest in the Clean Water Act is that it so easily ensnares small landowners doing normal land use activities in this terrible federal regulatory net. And there's almost no way to find out ahead of time whether one's otherwise normal activity is going to regulated, unless you hire a consultant and go through a jurisdictional determination process that could take years and certainly a lot of money.

 

      The same problem is presented here. Say you're a landowner with a septic tank and you're over a large groundwater basin that will connect with some regulated surface water. How are you possibly to know, if based upon your septic tank's discharges and based upon its location, that it's a direct hydrological connection, or whether it would even ultimately end up in a regulated water, or how long it would take? There's absolutely no way to figure that out, certainly not unless you are a well-heeled corporation. And I think that makes these cases attractive to the Supreme Court for the same reason that cases like the Hawkes case, Sackett, and Rapanos—the more recent Supreme Court cases on the Clean Water Act—why the Court was attracted to those cases in those instances and why I think it may be attractive here on the conduit theory.

 

      Wesley Hodges:  Thank you very much, caller, for your question. While we wait for any more questions, I do have a question for you, Damien. I know you've touched on this already in your remarks, but just to highlight it, what are the chances that the Supreme Court will grant cert on cases that seek to review the conduit act for the Clean Water liability?

 

Damien M. Schiff:  I would say that the chances are certainly better than average, in part because here we have a clear circuit split and one that's happened just really within the last couple of months. Another factor, too, is that the EPA itself may be changing its understanding of groundwater pollution and its connection to the Clean Water Act. If you recall, earlier I mentioned that the Fourth Circuit's phrasing of its theory of liability—the direct hydrological connection—but that came from EPA. Well, earlier this year, EPA sought public comment on whether it should change that view, and whether and to what extent it should say that groundwater pollution is not directly regulated by the Clean Water Act. So I think the fact that the agency itself may be shifting position actually may also help the chances for the Court to take up the case. I would not be surprised if, in its currently pending cert petitions, the Supreme Court calls for the views of the Solicitor General since EPA is not directly a party to either case, although I believe EPA did file an amicus brief in the Ninth Circuit in the County of Maui case.

     

      One thing, though, that argues against cert right now is just simply because the Clean Water Act has been addressed so frequently by the Supreme Court and that maybe the Supreme Court is interested more, at this time at least, in resolving the bigger WOTUS issue – that is to what extend are wetlands are other -- and wetlands and ephemeral streams and tributaries considered waters of the United States, and to what extent are they themselves not jurisdictional? That's, of course, consumed so much attention in this area for so long, and this issue is still very much alive, notwithstanding repeated Supreme Court pronouncements on it. And so one might think that perhaps the Court would want to resolve that before getting into another aspect of the Clean Water Act. Or possibly not because maybe the WOTUS issue is not going to go away any time soon, and so the Court might think that perhaps there's no reason to let a circuit split continue to fester on a related issue. So I would say certainly chances are better than normal.

 

      And also, the quality of representation for the defendants in these cases is very high. In fact, I believe Paul Clement is counsel of record for Kinder Morgan. So I think that's another factor that would lead the Supreme Court to consider these to be good vehicles for addressing the conduit theory.

 

Wesley Hodges:  Thank you so much, Damien. Seeing no immediate questions, Damien, I turn the mic back to you. Do you have any closing thoughts for us today or anything else you want to cover before we end?

 

Damien M. Schiff:  One last point, and it's something that I omitted during my discussion of the cases, in terms of the pros and cons. One argument that has been used repeatedly by advocates of the conduit theory is that the conduit theory has been already approved by the Supreme Court, at least by the plurality opinion written by Justice Scalia in Rapanos. Now, I think it takes a little bit of chutzpah to make that argument when you consider that the Rapanos opinion -- from the plurality opinion in Rapanos is clearly attempting to limit the scope of Clean Water Act liability. And, obviously, the conduit theory would expand it. But, nevertheless, I raise that as an interesting point.

 

      The argument is that in that plurality opinion, Justice Scalia said that, sure, maybe our theory of jurisdiction might mean that a lot of these streams that people used to think were jurisdictional are no longer jurisdictional. But that doesn't necessarily mean that now there will be a gaping hole in Clean Water Act regulatory scope because what used to be considered a jurisdictional stream might still be considered, itself, a point source. And that the lower courts have affirmed the idea that you can have liability if you discharge from point source A to point source B to a jurisdictional water.

 

      And so the Ninth Circuit and the Fourth Circuit in the conduit case has said, oh, well, then Justice Scalia is clearly saying you can have an indirect discharge. That's what's going on here; you're indirectly discharging pollution through groundwater. So Justice Scalia, clearly, would applaud the conduit theory. I think that's really over-reading his opinion because I think there's a big distinction between saying, okay, well you can defeat liability if you have two pipes and then a regulated water, as opposed to one pipe. But that's not what we have here. We have here a discharge into groundwater, which no court—no circuit court at least—has held is a point source, but then ultimately ends up in a regulated surface water. That is at least one conceptual step beyond what Justice Scalia was talking about in Rapanos—again, even setting aside the fact that clearly the thrust of Rapanos in Justice Scalia's opinion is to limit the Clean Water Act. So it's kind of strange to use that as a basis for expanding liability.

 

      So that might be, again, even a third basis for why the Supreme Court would be interested in taking up these cases to clarify the scope, in that and other respects, of the Rapanos decision.

 

Wesley Hodges:  Thank you so much, Damien for your remarks.

 

Damien M. Schiff:  I very much appreciate, again, the opportunity to present, and I would certainly remind all the readers to definitely stay attune to this issue because I think we may soon have further litigation developments and maybe even from the Supreme Court.

 

Wesley Hodges:  Thank you, Damien. And if that happens, we hope we can have you back very soon. So on behalf of The Federalist Society, I'd to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you everyone for joining. The call is now adjourned.

 

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