Author:Clements, Hannah
  1. INTRODUCTION 1108 II. GROUNDWATER IS A KEY COMPONENT OF SURFACE WATERS, 1113 NOT SEPARATE FROM III. THE CLEAN WATER ACT DOES NOT OVERTLY ADDRESS 1114 GROUNDWATER A. The CWA Aims to Protect Water Bodies by Regulating 1115 Pollution, but to What Extent? 1. The CWA's Broad Purpose 1115 2. The National Pollutant Discharge Elimination 1116 Program 3. CWA Jurisdiction Over Pollution 1116 B. Some Legislative History Addresses Groundwater, but it is 1118 Inconclusive C. Theories for Regulating Groundwater Under the CWA 1119 1. The Point Source Theory 1119 2. The Tributary Theory 1120 3. The Hydrological Connection Theory 1120 IV. STATUTORY INTERPRETATION AND THE RISE OF HYPERTEXTUALISM 1121 A. Overview of the Methods of Statutory Interpretation 1121 1. The Traditional Approaches: Intentionalism and 1121 Purposivism 2. The Modern Approach Textualism 1122 B. The Rise of Rigid Statutory Interpretation 1122 V. JURISDICTION OVER HYDROLOGICALLY CONNECTED 1124 GROUNDWATER: THE CIRCUIT SPLIT A. A Practical-Textual Approach: The Ninth and Fourth 1125 Circuits 1. County of Maui 1125 2. Kinder Morgan Energy Partners 1126 3. The Ninth and Fourth Circuits' Practical Textualism 1127 B. Hypertextualist Approach: The Sixth Circuit 1128 1. TVA and Kentucky Utilities Co 1128 2. The Sixth Circuit's Hypertextualism 1131 VI. REJECTING RIGID INTERPRETATIONS OF ENVIRONMENTAL 1133 STATUTES: A CWA CASE STUDY A. Erosion of the Administrative State and Enlargement of 1134 Judicial Power B. Seeking Plain Meaning Where it Does Not Exist 1135 C. Ignoring Statutory Purpose 1135 D. Disregarding Practical Consequences 1136 E. Failing to Acknowledge Known Science 1136 VII. CONCLUSION 1137 I. INTRODUCTION

    Imagine there is a waste treatment facility that injects upwards of 2.8 million gallons of wastewater into the Pacific Ocean per day by way of its wastewater injection wells. Or, imagine there is a ruptured gasoline pipeline from which gasoline toxins seep through the groundwater into nearby rivers, creeks, and wetlands. Or perhaps, there are coal ash waste ponds at a coal-fired power plant so structurally deficient that the ponds release chemicals that travel through the groundwater, eventually reaching nearby rivers. If these hypothetical discharges occurred directly into a stream or ocean, they would undoubtedly require a permit, mandated by the Federal Water Pollution Control Act, (1) more commonly known as the Clean Water Act (CWA). Yet, in the Sixth Circuit, the conveyance of the pollution through groundwater would exempt the discharges from the CWA's requirements. Although the CWA prohibits the "addition of any pollutant to navigable waters from any point source" unless it is regulated by a proper permit, (2) under the Sixth Circuit's interpretation of the CWA, a polluter can be unpermitted in any of these three hypothetical scenarios. (3) Taking this interpretation to its logical conclusion, a polluter can escape CWA liability simply by moving its drainage pipe a few feet from the riverbank, thereby circumventing the purpose of the CWA. (4)

    Congress passed the CWA in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (5) Central to this purpose is the Act's prohibition of "any addition of any pollutant to navigable waters from any point source," unless the discharge is regulated by a proper permit. (6) A point source is "any discernible, confined and discrete conveyance... from which pollutants are or may be discharged." (7) Navigable waters is defined as "waters of the United States," which clearly includes surface waters such as rivers, streams, and lakes. (8) The CWA does not explicitly address groundwater and it is not clear whether the CWA's jurisdictional terms encompass groundwater. In particular, the meaning of "waters of the United States" has been subject to much debate and litigation, especially in the wake of three successive Supreme Court cases addressing the scope of the term. (9) Most recently, in Rapanos v. United States, (10) the Court split 4-4-1 on the question of when wetlands adjacent to tributaries are within the CWA's jurisdiction. Lower courts are divided on which test to follow: Justice Scalia's (plurality) test that would include wetlands that are adjacent to a navigable water and have a continuous surface connection with that water, or Justice Kennedy's (concurring) "significant nexus" test that would regulate waters that "significantly affect the chemical, physical, and biological integrity of other covered waters." (11) In response to the resulting confusion over which waters are jurisdictional, the United States Environmental Protection Agency (EPA) promulgated the Clean Water Rule in 2015 (2015 Clean Water Rule or 2015 Rule) re-defining "waters of the United States." (12) But as a result of multiple court challenges, the 2015 Rule was enjoined in twenty-eight states. (13) And most recently, in September 2019, the Trump Administration repealed the 2015 Clean Water Rule and has proposed to replace it with a revised definition of "waters of the United States" (14) (2019 Proposed Revised Rule). Both the 2015 Clean Water Rule and the 2019 Proposed Revised Rule categorically exclude groundwater as a water of the United States. (15)

    Many scholars have argued that the CWA's jurisdiction extends to groundwater, proposing three different theories of potential regulation: the point source theory, the tributary or significant nexus theory, and the hydrological connection or conduit theory. (16) The point source theory treats groundwater itself as the point source discharging pollutants into navigable waters. (17) The tributary theory includes groundwater that has a "significant nexus" to navigable-in-fact-waters as a water of the United States. (18) Lastly, the hydrological connection theory covers indirect discharges where groundwater conveys pollutants from a point source to navigable waters. (19) But the EPA and lower courts have not supported all of these theories. For instance, because the 2015 Clean Water Rule and the 2019 Proposed Revised Rule categorically exclude groundwater as a water of the United States, the tributary theory may be potentially foreclosed for the time being. (20) The EPA and courts appear to be in agreement that isolated groundwaters do not fall within the jurisdiction of the CWA. (21) The point source theory has not had much success in the lower courts and does not appear to be supported by the EPA. (22) The EPA has been inconsistent in its stance on whether groundwater with a direct hydrological connection to navigable waters may, on a case-by-case basis, be within the jurisdiction of the CWA. (23) On November 6, 2019, the Supreme Court heard oral arguments for the 2018 case from the Ninth Circuit and will likely decide the issue by next summer. (24)

    In 2018, three circuit courts addressed the hydrological connection theory, weighing in on the question of whether the jurisdiction of the CWA extends to pollution that travels through groundwater prior to making its way to navigable waters. The Ninth and Fourth Circuits both said pollution that travels from a point source through groundwater before reaching navigable waters falls within the jurisdiction of the CWA on a case-by-case basis. (25) But the Sixth Circuit rejected the hydrological connection theory, holding that the addition of a pollutant must occur directly from the point source to the navigable water. (26) In reaching this conclusion, the Sixth Circuit took a hypertextualist approach to interpreting the relevant provisions of the CWA, defining words in the statute as narrowly as possible to fit its desired result, manipulating context, disregarding precedent, and largely ignoring the statute's purpose and practical considerations. (27)

    A hypertextualist reading of the CWA that excludes hydrologically connected groundwater has severe implications for the health of aquatic systems. Pollution into groundwater directly impacts pollution levels of surface waters, implicating human health, drinking water, recreation, fisheries, and more. Furthermore, excluding pollution discharged through hydrologically connected groundwater from the CWA opens up a loophole through which polluters can escape regulation, likely necessitating reactive regulation later on. (28) The Sixth Circuit's rigid, hypertextualist approach is emblematic of a troubling trend in statutory interpretation.

    Textualism has been on the rise since the late Justice Scalia joined the Supreme Court in 1986. (29) Textualism is a method of statutory interpretation that relies on dictionary definitions, rules of grammar, and canons of construction to derive the objective meaning of a word or phrase. (30) Hypertextualism goes even further. Professor Pierce defined hypertextualism as "finding linguistic precision where it does not exist, and relying exclusively on the abstract meaning of a particular word or phrase even when other evidence suggests strongly that Congress intended a result inconsistent with that usage." (31) This approach differs substantially from the traditional approach to statutory interpretation, most notably in its lack of reliance on legislative history, statutory purpose, and statutory intent. (32) A hypertextualist approach also affects whether courts will defer to an administrative agency's interpretation of ambiguous statutory language. (33) In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (34) the Supreme Court held that if a statute is silent or ambiguous with respect to an issue, courts should defer to the reasonable interpretation made by the agency administrator. However, with hypertextualist courts, there is less deference to agency expertise. (35) Because hypertextualism aims to parse the dictionary definitions of individual words without reliance on statutory intent, purpose, or history, this method of interpretation discourages findings of ambiguity. (36) The...

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