UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Toxics Action Center, Inc. & Conservation Law Foundation

v. Case No. 18-cv-393-PB Opinion No.

Casella Waste Systems, Inc. & North Country Environmental Services, Inc.

MEMORANDUM AND ORDER

In this citizen-suit enforcement action, two non-profit

environmental organizations have sued Casella Waste Systems,

Inc. ("Casella") and its subsidiary, North Country Environmental

Services, Inc. ("NCES") for violating the Clean Water Act

("CWA") by discharging pollutants into the Ammonoosuc River

without a permit. The principal issue presented by the parties'

cross-motions for summary judgment is whether a surface water

channel at the landfill site that carries pollutants into the

river is a "point source" as that term is used in the CWA.

Because I conclude that facts material to the resolution of this

issue remain in genuine dispute, I deny the cross-motions.

I. BACKGROUND

NCES owns and operates a solid waste landfill on a 61-acre

site in Bethlehem, New Hampshire. The site lies a few hundred yards south of the Ammonoosuc.1 The landfill has been in

operation since the 1970s and has gone through multiple stages

of development.

The first waste disposal facility on the site was a five-

acre, unlined landfill that a local resident started in 1976 by

depositing solid waste into an excavated gravel pit. That waste

eventually leached contaminants into the groundwater beneath the

site, forming a contaminant plume. The contamination was first

detected in the early 1980s.

In the late 1980s, the New Hampshire Department of

Environmental Services ("NHDES") granted a permit to a

predecessor of NCES to construct an eighteen-acre, double-lined

landfill on the site. As a condition of that permit, NHDES

required defendants' predecessor to remove all solid waste and

stained soil from the unlined landfill. After the excavation

was completed in 1993, a doubled-lined landfill was constructed

over the site of the unlined landfill. NHDES also required the

installation of a network of groundwater monitoring wells

between the site of the unlined landfill and the river to detect

and monitor contaminants.

1 The Ammonoosuc begins at the Lake of the Clouds on the western slopes of Mount Washington and flows into the Connecticut River in Haverhill, New Hampshire.

2 In 1994, a subsidiary of Casella acquired the stock of the

corporation that then owned and operated the landfill and

changed the name of the company to NCES. The following year,

NHDES established a Groundwater Management Zone ("GMZ") at the

site to monitor the migration and attenuation of the contaminant

plume. NCES has been reporting the results of that monitoring

to NHDES three times per year for the past twenty-seven years.

Groundwater underneath and near the landfill flows to the

northeast, towards the Ammonoosuc. The groundwater naturally

emerges on the embankment above the river in a network of seeps

and springs, the largest of which is called the "Main Seep."

Water emerging from the Main Seep has created a channel that

runs down the slope and discharges into the Ammonoosuc. This

surface water channel, referred to as the "Drainage Channel," is

between one and five feet wide and is approximately 370 feet

long.2 The flow down the Drainage Channel occurs at all times at

an estimated rate of 50-100 gallons per minute. The Main Seep,

the Drainage Channel, and the Channel’s confluence with the

Ammonoosuc River are all located within the GMZ.

2 The term "Drainage Channel," which plaintiffs have embraced, appears in some correspondence between defendants and NHDES. Although defendants maintain that the term is inaccurate and argumentative, they, too, use it in their briefing simply to avoid confusion.

3 Elevated levels of iron and manganese have been detected

consistently in the Main Seep and the Drainage Channel since GMZ

monitoring began.3 Since March 2013, elevated levels of both

metals have been detected in all water samples taken at the

lower end of the Drainage Channel, about 20-25 feet from the

point where it discharges into the Ammonoosuc. On all but three

occasions during that period, water samples collected from the

Ammonoosuc downstream from the Drainage Channel had higher

levels of iron and manganese than water samples taken upstream

from the Drainage Channel.

Iron and manganese are constituents of leachate generated

at the landfill but they also occur naturally in the soil at the

site. Contamination from the former unlined landfill has

increased the levels of these metals in the groundwater that

emerges at the Main Seep. The leachate has consumed oxygen

present in the groundwater and altered geochemistry at the site

in a way that causes naturally occurring iron and manganese in

the soil to be more easily released into the groundwater than

would otherwise be the case under normal conditions. When the

groundwater emerges at the Main Seep, the two metals precipitate

out of solution as they are exposed to oxygen in the air. Over

3 In the 1990s, NCES also regularly detected elevated levels of multiple volatile organic compounds ("VOCs"). The last time VOCs were detected at the Main Seep was in July 2005.

4 time, these precipitates accumulated in the beds of the Main

Seep and the Drainage Channel, creating rust-colored sediments.

As a condition of renewing the landfill's Groundwater

Permit in 2002, NHDES required NCES to investigate and submit

"[o]ptions for remediation of water quality" in the Main Seep

and the Drainage Channel, "including reduction of manganese and

iron concentrations and elimination of iron bacteria deposits."

Doc. No. 94-19 at 4. In response, NCES submitted a report to

NHDES designed "to provide an evaluation of remedial options to

reduce manganese and iron concentrations and bacteria deposits

at the Main Seep." Doc. No. 99-1 at 1. This report presented a

range of options for addressing water conditions, including

chemical treatment of the groundwater and physical measures such

as intercepting the groundwater upgradient from the Main Seep

and pumping it either back to the landfill for discharge or

directly to the river via above-ground piping. The report

concluded that none of the identified options were feasible and

instead recommended physically removing the rust-colored

sediments and taking "[a]dditional measures to improve the

course" of the Drainage Channel to facilitate periodic cleanup

in the future. Doc. No. 99-1 at 15. In addition to remediating

the appearance of the Drainage Channel, the report highlighted

"[a]nother important benefit of this alternative":

5 [T]he removal of iron and manganese that occurs during flow down the [Drainage Channel] would continue, thereby limiting the mass loading of iron and manganese to the river. This alternative recognizes that the course of the [Drainage Channel] provides treatment for removal of iron and manganese before ultimate discharge of the [Main] Seep to the river.

Doc. No. 99-1 at 16.

In 2010, NCES implemented this alternative, calling it the

"Seep Restoration" project. NCES excavated approximately 176

tons of contaminated sediment from the Main Seep and the

Drainage Channel using suction dredging techniques. The

sediment ranged from several inches to several feet in depth.

After the excavation was complete, woody debris and logs of a

specific size were permanently installed in particular locations

in the Drainage Channel to manage the velocity of the waterflow

and to reduce "channel erosion and subsequent downstream

sedimentation." Doc. No. 94-15 at 9. In addition, a "non-woven

geotextile" made of synthetic, nonbiodegradable material was

installed on the bed of the Main Seep and covered by a layer of

gravel. Doc. No. 94-15 at 9. In a report submitted to NHDES

after the project was completed, NCES reiterated that one of its

goals was "maintaining the naturally occurring iron and

manganese treatment being provided by oxidation along the length

of the drainage channel prior to the discharge to the River."

Doc. No. 94-15 at 6. Within a year after the sediments were

6 removed from the Drainage Channel, new rust-colored sediments

appeared.

Plaintiffs, Toxics Action Center, Inc., and Conservation

Law Foundation, filed their complaint in May 2018. They allege

that defendants have violated and continue to violate the CWA by

discharging pollutants to the Ammonoosuc without a permit.

Plaintiffs assert in Count I that defendants need a National

Pollution Discharge Elimination System ("NPDES") permit to

discharge pollutants into the Ammonoosuc because the Drainage

Channel, which conveys the pollutants to the river, qualifies as

a point source under the CWA. They argue in the alternative in

Count II that the landfill is itself a point source for

defendants' discharges. For reasons that I describe below, I

deny the parties' cross-motions for summary judgment because

facts material to the resolution of the motions remain in

genuine dispute.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals "no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law." Fed. R. Civ. P.

56(a); Tang v. Citizens Bank, N.A.,

(1st Cir.

2016). In this context, a "material fact" is one that has the

"potential to affect the outcome of the suit." Cherkaoui v.

City of Quincy,

(1st Cir. 2017) (quoting Sanchez

7 v. Alvarado,

(1st Cir. 1996)). A "genuine

dispute" exists if a factfinder could resolve the disputed fact

in the nonmovant's favor. Ellis v. Fid. Mgmt. Tr. Co.,

(1st Cir. 2018).

On cross-motions for summary judgment, the standard of

review is applied to each motion separately. See Am. Home

Assurance Co. v. AGM Marine Contractors, Inc.,

(1st Cir. 2006); see also Mandel v. Bos. Phoenix, Inc.,

, 205 (1st Cir. 2006) ("The presence of cross-motions for

summary judgment neither dilutes nor distorts this standard of

review."). Thus, I must "determine whether either of the

parties deserves judgment as a matter of law on facts that are

not disputed." Adria Int'l Grp., Inc. v. Ferré Dev., Inc.,

(1st Cir. 2001).

III. ANALYSIS

The CWA requires an NPDES permit whenever "pollutants" are

added to "the waters of the United States" from a "point

source." See

(a) (prohibiting "the discharge of

any pollutant" except as otherwise authorized); § 1312

(authorizing the issuance of NPDES permits for otherwise

prohibited discharges); § 1362(12) (defining "discharge of a

pollutant" to include "any addition of any pollutant to

navigable waters from any point source"); § 1362(7) (defining

"navigable waters" as "the waters of the United States").

8 Defendants do not challenge plaintiffs' claim that the Drainage

Channel is conveying iron and manganese from the landfill site

through the Drainage Channel into the Ammonoosuc. Nor do they

dispute plaintiffs' contention that iron and manganese are

pollutants under the CWA. Instead, the parties' cross-motions

for summary judgment are focused on plaintiffs' contention that

the discharges are from a point source. Plaintiffs claim in

Count I that the Drainage Channel is a point source and claim in

the alternative in Count II that the point source is the

landfill itself. Defendants challenge both claims. I devote

the bulk of this Memorandum and Order to the parties' arguments

with respect to Count I and only briefly explain why their

arguments concerning Count II are not sufficiently developed to

permit in-depth analysis.

A. Is the Drainage Channel a Point Source?

The CWA defines a "point source" as "any discernible,

confined and discrete conveyance . . . from which pollutants are

or may be discharged."

(14). The term

includes, but is not limited to, "any pipe, ditch, channel,

tunnel, conduit, well, discrete fissure [or] container."

Plaintiffs assert in Count I that the Drainage Channel qualifies

as a point source because it is a "channel" that conveys

pollutants directly from the Main Seep to the Ammonoosuc.

9 Defendants agree that the Drainage Channel is a channel.

They argue, however, that it cannot be a point source because it

is also a water of the United States. Defendants' argument

proceeds in two steps. First, defendants rely on regulations

adopted by the Environmental Protection Agency and the Army

Corps of Engineers (collectively, "the Agencies") to support

their contention that the Drainage Channel is a water of the

United States. These regulations state that a "tributary" is a

water of the United States. See

(a)(2);

(1)(ii). They also explain that a naturally

occurring surface water channel can be a tributary. See

(c)(12) ("The term tributary means a river,

stream, or similar naturally occurring surface water channel

that contributes surface water flow to [waters of the United

States] in a typical year . . .");

(3)(xii)

(same).4 According to defendants, the Drainage Channel qualifies

as a tributary, and thus it is a water of the United States,

because it is a naturally occurring surface water channel that

4 The current definition of a tributary is narrower in scope than the Agencies' prior definition promulgated in 2015, which specified that a tributary "can be a natural, man-altered, or man-made water." Clean Water Rule: Definition of "Waters of the United States,"

, 37,105 (June 29, 2015). The 2015 rule was preliminarily enjoined in a number of states before it went into effect and was ultimately repealed by the Agencies in 2019. See The Navigable Waters Protection Rule: Definition of "Waters of the United States,"

, 22,260 (April 21, 2020).

10 flows throughout the year and empties directly into the

Ammonoosuc.

The second step in defendants' argument is less clearly

explained. Viewing their position generously, they claim that a

channel can in some circumstances be a point source and in other

circumstances can be a water of the United States but a channel

cannot simultaneously be both a point source and a water of the

United States. Support for their assertion can be found in the

definition of "discharge of a pollutant," which requires an

"addition of any pollutant to navigable waters from any point

source."

(12) (emphasis added). Defendants

reason from this definition that a water of the United States

cannot at the same time be a point source because the release of

pollutants from one water of the United States to another does

not result in the addition of pollutants to the waters of the

United States as a whole. Thus, they claim, the Drainage

Channel cannot be a point source because it is a water of the

United States that merely transfers pollutants from one water of

the United States to another.

Plaintiffs counter with three arguments. They first claim

that the Drainage Channel is not a tributary because defendants

have altered its natural features. Next, they assert that the

Drainage Channel is not a water of the United States because it

is a "waste treatment system." Finally, they assert that the

11 Drainage Channel is a point source even if it is also a water of

the United States. I address these arguments in turn.

1. Whether the Drainage Channel is a Tributary

Plaintiffs argue that although the Drainage Channel is

naturally occurring5 and flows constantly, it is not a tributary

because defendants have altered its flow rate, its physical

characteristics, and the water flowing through it. In making

this argument, plaintiffs primarily focus on the 2010 "Seep

Restoration" project, when defendants removed contaminated

sediments and installed woody debris and logs throughout the

Channel to manage the velocity of the flow. They also point to

the continuing sedimentation and the changed composition of the

water caused by the landfill as evidence that the Drainage

Channel is no longer "natural."

5 The phrase "naturally occurring" refers to surface water channels that "originally occurred naturally." The Navigable Waters Protection Rule, 85 Fed. Reg. at 22,298. Although plaintiffs stated at oral argument that they do not concede that the Drainage Channel is naturally occurring, they did not seek summary judgment on that ground. On the contrary, plaintiffs' briefs made multiple factual assertions that effectively concede that the Channel originally occurred naturally. See Pls.' Obj. to Defs.' Mot. for Summ. J., Doc. No. 94 at 9 ("groundwater naturally emerges at the Main Seep because that is the point at which the slope of the riverbank intersects the water table"); Doc. No. 94 at 8 ("Plaintiffs also agree that 'water emerging from the Main Seep has created a channel that runs down the slope and discharges in the Ammonoosuc.'") (quoting Defs.' Mot. for Summ. J., Doc. No. 89 at 4); Pls.' Cross-Mot. for. Summ. J., Doc. No. 96 at 5 (same).

12 Plaintiffs' position is incompatible with the plain text of

the applicable regulations. The regulations specify that

modifying a tributary does not change its status as a water of

the United States, provided that it continues to meet the flow

conditions included in the definition. See

(c)(12);

(3)(xii). The Agencies have

explained that the extent of modifications is not a factor:

The agencies' longstanding interpretation of the CWA is that tributaries that are altered or relocated tributaries are jurisdictional, and the agencies are not changing this interpretation. If a tributary is channelized, its bed and/or banks are altered in some way, it is re-routed and entirely relocated, or its flow is modified through water diversions or through other means, then it remains jurisdictional under the final rule as long as it continues to satisfy the flow conditions in the definition of "tributary."

The Navigable Waters Protection Rule: Definition of "Waters of

the United States,"

, 22,298-99 (April 21,

2020). Accordingly, the fact that human intervention has

altered multiple features of the Drainage Channel does not

preclude a finding that it is a tributary.

2. Whether the Drainage Channel is a Waste Treatment System

Even if the Drainage Channel is deemed a tributary,

plaintiffs argue that the Drainage Channel does not qualify as a

water of the United States because it is a "waste treatment

system." I conclude that facts material to plaintiffs'

contention remain in genuine dispute.

13 The regulations implementing the CWA provide that a

waterway can lose its status as a water of the United States.

See

(b);

(2). One such

exclusion is for "waste treatment systems."

(b)(12);

(2)(xii). "The term waste

treatment system includes all components . . . designed to

either covey or retain, concentrate, settle, reduce, or remove

pollutants, either actively or passively, from wastewater prior

to discharge (or eliminating any such discharge)."

(c)(15);

(3)(xv). Under this provision,

a tributary that is designed to serve as a waste treatment

system is not a water of the United States.

It is uncontested that the Drainage Channel passively

settles some iron and manganese out of the water flowing through

its bed due to a natural process of oxidation and sedimentation.

As a result, the Channel is reducing the concentration of these

metals in the water that is discharged to the river. To qualify

as a waste treatment system, however, the water flowing through

the Drainage Channel must be "wastewater" and the channel must

have been "designed" to fulfill a pollution reducing function.

a. Whether the Drainage Channel Conveys Wastewater

The regulations promulgating the waste treatment system

exclusion do not define the term "wastewater." The EPA,

however, has defined that term in separate regulations that set

14 forth effluent limitation guidelines for different point source

categories. See

. The parties agree that

the landfills point source category, which "applies to

discharges of wastewater from landfill units," is applicable

here. See

(a). In that context, the EPA has

defined "landfill wastewater" broadly as "all wastewater

associated with, or produced by, landfilling activities except

for sanitary wastewater, non-contaminated storm water,

contaminated ground water, and wastewater from recovery pumping

wells."

(f). The term includes, but is not

limited to, "leachate, gas collection condensate, drained free

liquids, laboratory derived wastewater, contaminated storm water

and contact washwater."

It is undisputed for purposes of the present motions that

the unlined landfill conveyed leachate to the groundwater

beneath the site, and that this leachate has created conditions

that cause high levels of iron and manganese in the soil to be

dissolved into the groundwater that emerges at the Main Seep and

flows through the Drainage Channel. Thus, the water feeding the

Channel is contaminated with these pollutants as a result of

landfilling activities and it, therefore, meets the definition

of landfill wastewater.

To the extent defendants maintain that the water in the

channel is excluded as "contaminated ground water," their

15 argument has no merit. The regulation defines "contaminated

ground water" as "water below the land surface in the zone of

saturation which has been contaminated by activities associated

with waste disposal."

(a). The groundwater

beneath the site of the former unlined landfill appears to

satisfy this definition. But once that groundwater emerges from

the Main Seep and starts flowing through the Drainage Channel –

which is when the waste treatment begins – it is no longer below

the land surface. At that point, the contaminated water flows

at surface level, so it is no longer groundwater.

This interpretation of the regulation's plain language is

consistent with the Agencies' guidance on what constitutes

"groundwater" in a related regulation. Like waste treatment

systems, "groundwater" is excluded from the waters of the United

States. See

(b)(2);

(2)(ii).

The Agencies have explained, however, that this "exclusion does

not apply to surface expressions of groundwater, such as where

groundwater discharges to the channel bed and becomes baseflow

in intermittent or perennial streams." The Navigable Waters

Protection Rule, 85 Fed. Reg. at 22,325. This example precisely

describes the water that flows through the Drainage Channel. By

extension then, that water is not "contaminated ground water"

16 excluded from the definition of landfill wastewater.6 Because

landfill-related pollutants flow through the Drainage Channel

from a surface expression of groundwater, I agree with

plaintiffs that the Channel conveys wastewater.

b. Whether the Drainage Channel was Designed to Treat Wastewater

Plaintiffs also contend that the Drainage Channel was

"designed" to treat iron and manganese in the wastewater before

it is discharged to the river. To support their contention,

plaintiffs point out that, as part of renewing the facility's

Groundwater Permit in 2002, NHDES required NCES to investigate

options to improve the water quality in the Main Seep and the

Drainage Channel, which included both "reduction of manganese

and iron concentrations" in the water and the "elimination of"

the contaminated sediments. Doc. No. 94-19 at 4. Defendants

6 The Agencies' rationale for not regulating pollutants in groundwater under the CWA is that groundwater quality is regulated through other legal mechanisms, including the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and various state and local laws. See The Navigable Waters Protection Rule, 85 Fed. Reg. at 22,318-19 (citing this rationale behind the exclusion of groundwater from the waters of the United States); Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards for the Landfills Point Source Category,

, 3,015 (Jan. 19, 2000) ("EPA concluded that, whether as a result of corrective action measures taken pursuant to RCRA authority or State action to clean up contaminated landfill sites, landfill discharges of treated contaminated ground water are being adequately controlled.").

17 submitted a range of treatment options to the State agency for

approval and ultimately recommended physical removal of

sediments and "[a]dditional measures to improve the course" of

the Drainage Channel. Doc. No. 99-1 at 15. Defendants claimed

that this option would allow the Drainage Channel to continue to

"provide[] treatment for removal of iron and manganese before

ultimate discharge" to the river. Doc. No. 99-1 at 16. When

they implemented the project in 2010, defendants not only

removed the sediments but also reconstructed the Drainage

Channel by installing permanent structures to manage the

velocity of the flow and thus reduce "channel erosion and

subsequent downstream sedimentation." Doc. No. 94-15 at 9.

Plaintiffs argue that this evidence conclusively establishes

that defendants intended to redesign the Drainage Channel in

ways that promote the passive settling of iron and manganese

along its bed.

Defendants counter that the evident purpose of the 2010

project was not to create a waste treatment facility but to

remove contaminated sediments and to restore the Drainage

Channel in accordance with NHDES permit requirements. Even if

the effect of the natural cycle of oxidation results in some

metals precipitating out of solution along the length of the

Channel, defendants maintain, this is not a treatment system

that they created, designed, or sought to harness.

18 Viewing the record in the light most favorable to

defendants, I conclude that a factual dispute exists as to

whether the Drainage Channel was designed to serve as a waste

treatment system. On one hand, as defendants boasted to NHDES

on several occasions, the reconstruction of the Channel was done

in ways that sought to encourage the natural treatment of iron

and manganese before they reach the river, which suggests that

it was designed to treat those pollutants. On the other hand,

defendants did not undertake that work unilaterally but in

response to a permit condition, and they point to evidence that

they merely sought to "restore" the Drainage Channel to its

prior condition. Especially since the issue is one of intent,

summary judgment is not appropriate. See Brandt v. Fitzpatrick,

, 75 (1st Cir. 2020) (unsettled issues of motive and

intent as to the conduct of a party will normally preclude a

grant of summary judgment). Accordingly, a triable issue exists

as to whether defendants "designed" the Drainage Channel to

treat iron and manganese from landfill wastewater prior to

discharge to the Ammonoosuc.7

7 Defendants also argue that the waste treatment system exclusion does not apply because the purpose of the exclusion when it was first promulgated in the 1970s was to exempt facilities that discharge pollutants into their own closed system treatment ponds. See, e.g., N. Cal. River Watch v. City of Healdsburg,

(9th Cir. 2007) (explaining that this was the original purpose). When the Agencies defined the term "waste treatment system" in 2020, however, they neither included

19 3. Whether the Drainage Channel is Simultaneously a Point Source and a Water of the United States

Plaintiffs argue that they should prevail even if the

Drainage Channel is a water of the United States because a water

of the United States can also simultaneously be a point source.

That position, however, cannot be squared with the statutory

text.

The CWA defines a "discharge of a pollutant" as "any

addition of any pollutant to navigable waters from any point

source."

(12) (emphasis added). As Justice

Scalia's plurality opinion in Rapanos v. United States

recognized, this definition "conceive[s] of 'point sources' and

'navigable waters' as separate and distinct categories."

(2006). Otherwise, the definition "would make

little sense if the two categories were significantly

overlapping." Id.8

such a limitation in the text of the regulation nor otherwise indicated that the limitation would apply. The text of the regulation is not ambiguous. The definition of a waste treatment system is plainly broad enough to encompass the use of a surface water channel (such as the Drainage Channel) to treat wastewater before its discharge into a water of the United States. Absent uncertainty, the regulation "just means what it means — and the court must give it effect, as the court would any law." Kisor v. Wilkie,

(2019). 8 Plaintiffs instead lean on Justice Kennedy's concurrence in Rapanos for the proposition that "certain water-bodies could conceivably constitute both a point source and a [navigable] water."

(Kennedy, J., concurring). They also point out that Justice Scalia's plurality opinion stops short of

20 If a waterway can simultaneously be a navigable water (that

is, a water of the United States) and a point source, the

distinction the statute draws between the two categories using

the prepositions "from" and "to" would be rendered meaningless.

"[T]he word 'from' seeks a 'point source' origin," Cnty. of Maui

v. Haw. Wildlife Fund,

(2020), whereas the

word "to" indicates a destination – the waters of the United

States. Conflating the two categories requires reading those

terms out of the statute.

Plaintiffs' argument is also incompatible with the term

"addition." Although that term is not defined in the CWA, it is

commonly understood to mean the act of combining one thing with

another in a way that results in an increase in what was

originally there. See Webster's Third New International

Dictionary 24 (1961) (defining "addition" as "the act or process

of adding: the joining or uniting of one thing to another" and

listing "increase" and "augmentation" as its synonyms).

Assuming a point source and a water of the United States were

one and the same, a pollutant that is present in such a point

source would already be in the waters of the United States, so

concluding that the two terms are mutually exclusively. But neither opinion offers guidance for identifying those apparently exceptional cases where the two categories may overlap.

21 there would be no addition of pollutants to the waters of the

United States.

Plaintiffs argue in response that the "addition" of

pollutants occurs when a polluted water of the United States

(the Drainage Channel) empties into another water of the United

States (the Ammonoosuc). That argument runs headlong into the

EPA's longstanding position that "navigable waters" are one

unitary whole and that an "addition" occurs only when pollutants

first enter navigable waters from "the outside world," not when

they are moved between navigable waters. See National Pollutant

Discharge Elimination System (NPDES) Water Transfers Rule,

, 33,700-01 (June 13, 2008). This so-called

"unitary waters" theory underlies the EPA's Water Transfers

Rule, which exempts from NPDES permitting requirements

"[d]ischarges from a water transfer," defined as an engineered

activity that connects one water of the United States to

another. See

(i). The EPA has explained that

such transfers are exempt because movements of pollutants from

one water of the United States to another water of the United

States "do not result in the 'addition' of a pollutant" to

navigable waters. See Water Transfers Rule, 73 Fed. Reg. at

33,699.

The two circuit courts that have considered the Water

Transfers Rule have upheld the unitary waters theory as a

22 reasonable interpretation of the CWA that is entitled to

deference under Chevron. See Catskill Mountains Ch. of Trout

Unlimited, Inc. v. EPA,

(2d Cir. 2017);

Friends of Everglades v. S. Fla. Water Mgmt. Dist.,

(11th Cir. 2009). I agree with those courts. The

definition of "navigable waters" as a singular entity – "the

waters of the United States" - does not differentiate among

separate water bodies but refers to them in a collective sense.

See

(7) (emphasis added). A metaphor that the

Eleventh Circuit used aptly illustrates the rationality of the

unitary waters theory:

Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting "any addition of any marbles to buckets by any person." A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marble-mover "add[ed] any marbles to buckets"? . . . . [A]s the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred.

Friends of Everglades,

.

Plaintiffs do not argue that the unitary waters theory is

an unreasonable interpretation of the statute. Instead, they

point out that the discharge from the Drainage Channel to the

Ammonoosuc is not a water transfer as defined in the rule

because the conjunction of the Channel and the Ammonoosuc is not

an engineered connection. That is true but inapposite. The

23 unitary waters theory that underlies the rule also applies to

the natural convergence of a river and its tributary. See Water

Transfers Rule, 73 Fed. Reg. at 33,704 ("[C]ommenters who read

the natural convergence of two rivers as being a water transfer

are incorrect, though such natural convergences also do not

require NPDES permits."). To the extent both waterways are

waters of the United States, they are not to be considered

individually in this context. Thus, the movement of pollutants

from the Drainage Channel to the Ammonoosuc does not result in

an "addition" of pollutants to navigable waters if the Drainage

Channel is itself a water of the United States.

Plaintiffs contend that the EPA has nonetheless taken the

position that a waterway may be both a point source and a water

of the United States. The most recent agency guidance they

cite, however, does not stand for the proposition that a

waterway can be both at the same time. On the contrary, the EPA

has recognized that certain waterways, such as ditches, may be

either a water of the United States or a point source depending

on their unique features, not both. See The Navigable Waters

Protection Rule, 85 Fed. Reg. at 22,297 ("Either [a ditch] is

water of the United States that subjects a discharger to

sections 402 and 404 permitting requirements for the direct

discharges into the ditch, or, if it is non-jurisdictional but

conveys pollutants to downstream jurisdictional waters, it may

24 be a point source that subjects a discharger into a ditch to

section 402 permitting requirements."); Revised Definition of

"Waters of the United States,"

, 4,179 (Feb.

14, 2019) ("[T]he agencies propose to delineate the categories

of ditches that would be 'waters of the United States,' and are

proposing to exclude all other ditches from that definition.").

The older agency sources plaintiffs cite are either vague or

pre-date and contradict the unitary waters theory. See Clean

Water Rule: Definition of "Waters of the United States,"

, 37,098 (June 29, 2015) (merely noting that "the

approach that ditches can be considered both [a point source and

a water of the United States] reflects the CWA itself as well as

longstanding agency policy"); In re Riverside Irrigation Dist.,

, at *4 (EPA Gen. Couns. Mem., June 27, 1975)

(opining that irrigation ditches that discharge to navigable

waters required NPDES permits even if they themselves qualify as

navigable waters).9

9 Plaintiffs also cite three district court opinions from other circuits for the proposition that a channel can be a point source and a water of the United States at the same time. See United States v. Vierstra,

(D. Id. 2011); N.C. Shellfish Growers Ass'n v. Holly Ridge Assoc., LLC,

(E.D.N.C. 2003); Albahary v. City and Town of Bristol,

(D. Conn. 1997). Because these courts did not engage with the statutory text, their persuasive value is limited. In addition, two of the cases involved human-made tributaries, so under the current regulations neither would be considered a water of the United

25 Lastly, plaintiffs argue that their interpretation should

prevail because it is consistent with the congressional purpose

in passing the CWA, namely protecting the Nation's waters. But

"it frustrates rather than effectuates legislative intent to

simplistically assume that whatever furthers the statute's

primary objective must be the law." Norfolk S. R. Co. v.

Sorrell,

(2007) (quoting Rodriguez v. United

States,

(1987) (per curiam)). Importantly,

"even after a court looks to the broad purpose of a statute, it

still must give effect to the words actually used by Congress to

achieve that purpose." Boettger v. Bowen,

(6th Cir. 1991). Reaching a result in this case that is

consistent with what plaintiffs claim are the CWA's broad goals

would require reading specific terms out of the statute.

Because plaintiffs' contention that the Drainage Channel can

simultaneously be a point source and a water of the United

States is incompatible with the statutory text, I cannot adopt

their argument.

B. Is the Landfill a Point Source?

Plaintiffs argue in the alternative in Count II that the

landfill itself is a point source that discharges pollutants

into the Drainage Channel and the Ammonoosuc. Although each

States. See Vierstra,

; N.C. Shellfish Growers Ass'n,

.

26 side argues that it is entitled to complete or partial summary

judgment on Count II, they have not developed a sufficient

record to permit me to reliably address their arguments.

Whether the landfill qualifies as a "discernible, confined and

discrete conveyance" as that phrase is used in the CWA's

definition of a point source, see

(14), presents

a complicated factual question that requires a more fully

developed record to resolve. Equally troubling is the parties'

failure to carefully assess how the Supreme Court's recent

decision in County of Maui,

, affects my analysis

of their arguments. In that case, the court held that a release

of pollutants from a point source to groundwater before reaching

the waters of the United States requires an NPDES permit only if

the release is the "functional equivalent of a direct

discharge."

(emphasis omitted). The parties have

failed to sufficiently brief this issue, and I decline to take

up the issue on my own. Accordingly, I deny the parties' cross-

motions with respect to Count II without prejudice.

IV. CONCLUSION

In sum, the undisputed evidence shows that unless the

Drainage Channel is a waste treatment system, it is a tributary

of the Ammonoosuc River and therefore may be considered a water

of the United States and not a point source within the meaning

of the CWA. A genuine issue of material fact exists, however,

27 as to whether the Channel was designed to function as a waste

treatment system. I reject plaintiffs' alternative theory that

a channel can be both a point source and a water of the United

States at the same time. Accordingly, I deny the cross-motions

for summary judgment with respect to Count I to the extent that

they are based on the theories of liability discussed in this

Memorandum and Order.

I also deny the parties' cross-motions addressing Count II

without prejudice because the parties' arguments with respect to

that count have not been sufficiently developed to permit me to

resolve the difficult questions of fact and law that the

parties' motions present.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

August 11, 2021

cc: Daniel J. Mullen, Esq. David A. Nicholas, Esq. Joshua R. Kratka, Esq. Kevin P. Budris, Esq. Margaret M. A. Nivison, Esq. Charles Craig Caldart, Esq. Thomas F. Irwin, Esq. Bryan K. Gould, Esq. Callan E. Sullivan, Esq. Cooley Ann Arroyo, Esq.

28