the court this case is not about whether the releases from our underground injection well should be regulated at all but how they are already regulated under several existing state and federal environmental programs including the clean water act non point source program but is a clean water act point source permit also required the question is where the line falls between the clean water act federal point source program and its state law non point source program it offers the predictability one would expect in a permanent regime where regulated entities need to know beforehand whether a permit is required and where in this particular statute penalties for noncompliance are so severe it also maintains an important role for state non point source programs under the clean water act respondents however would rewrite the statute to all but a visceral the line between point and nonpoint source pollution and radically change the status quo in this case they would impose a new federal permit on wells that have operated the same way for forty years during which time e p a expressly rejected calls for n p t s permitting there are more than five hundred thousand similar underground that respondents now offer the th different reading of the statute to support liability in this case counsel i want to make sure i understand what your test is you say that the it has to be the means it i guess the points are as has to be the means of conveyance to the jurisdiction water yes or are what does that mean that if it ever runs into ground water it is not the means of conveyance but the groundwater is that's correct here are that it will what we mean by  sources require point source permits if that were the case as respondents and just there would be very very little if anything left for a non point source regulation and so our contention your honor is that if you reading the statutory text and considering the words edition from any point source that that contemplates that the point source must be the thing or point sources must together as one functional point source must be what actually delivers the would not be covered wouldn't be pollution of the jurisdiction of water by that point source i mean vision in two different days one where it's polluted is put in the groundwater and then gradually you know seeps into the into the ocean and one where it's sort of forcefully explained old although goes through the groundwater you're on i think if it still goes through the groundwater the question under the statute is what is the what is the conveyance what is the thing that carries and delivers the pollutants i think even if it's forcefully put into the ground water the groundwater is what's carrying it now i can imagine your honor scenarios as we discuss in our brief where you've got say a point source of a pipe that's very close to the water's engine and expels the pollutants into the water the thing that's carrying it the last conveyance in that factual scenario would be the pipe the pipe is a discernible confined and happens if you just take the pipe and you decide what will do is going to end the pipe thirty five feet from the river or from the ocean or something now you know perfectly well that it will drip down into the ground it be carried out in the navigable water and your theory that isn't covered in that scenario here on earth of the groundwater is what's caring and delivering the you know that scenario would be regulated under the non point source program but congress will then but what we have is i take it in absolute roadmap for people who want to avoid the point understand the problem what i'm looking for in this case is what a standard that will prevent of a which i'm not i don't see how yours prevents evasion your honor same time doesn't turn everything into undercut the war if i may or a quarrel with your use of the word evasion because i think what's important to remember is it's a comprehensive scheme congress didn't design a quote it didn't just put the point source program out into the world on a hope and a prayer that there would be some other regulatory program that would cover the other scenarios including the one that you're talking about just as prior there there is a non point source program there are laws including in hawaii that would explicitly prohibit the scenario that you're talking about saying is that nobody would ever have to go through that process of getting a permit if they knew that they could do something like what justice breyer was suggesting just stop the pipe five feet before the ocean and i think your honor the key there is that they knew they could and could could is the operative word because the state law regulations that are in place are significant and so it's a yes you are there's a clear choice that our reading of the statute offers which is do you want to be subject to programming or subject to state law regulation and state law regulation in many many states including hawaii doesn't allow the scenario that you have to struggle talking about but that's the problem isn't it because it presumes the state will regulate and some states still so what you're doing is cutting all emitting because you're limiting the word to or crude or morphing the word soon africa borders and changing it into navajo borders in that's what justice scalia looked at was the plain text and said two is different than in two and so for us the question i believe is do you read the plain language and does it say from a point source it's the well says the ocean it can be traced yes i think the words are pretty clear the few here to accept yours you have to put in the words into point source management program nd there are grants and incentives in place hundreds of millions of dollars a year to encourage states to regulate and rd there are water called there is a water quality backstop in the clean water act so any water states are required every two years to identify waters that are impaired that are not meeting water quality stand in it's not in the question is what this statute meehan's the question is not whether there's a possible state  question is what congress was doing in this statute and justice so to my you are indicated to you that this statute reads pretty firmly it requires a permit when there's any addition of any pollutants to navigable waters from any point source so here it's from a point source which is the well and it's to navigable waters which is the ocean and that's in addition how does this statute not apply you know i think it comes down to what what work is from doing in the statute and from as a proposition and since court is recognized for other propositions like under it takes its meaning from the words that are around it in the words here that from is indicating the relationship between our edition and point source of point source were not a defined term which is what my friends here urge and you looked at simply the ordinary meaning of the word source i think we would have be having a very different discussion but point source defined as a conveyance well i find as more than a conveyance can conveyances the umbrella term but then actually they go further and they say that there are particular things that are point sources some of which sound like conveyances and some of which quite frankly don't nobody ever thought that a container sounded like a conveyance nobody ever thought that a concentrated animal feed an operation sounded like a conveyance and most importantly here nobody really thinks that a will sounds much like a conveyance but well is specifically defined to be a point source this is a well so you can read this this provision that i just read you and the addition of any pollutant to navigable waters from any well that's what we have here your honor if i could start with the statutory language i think wells as an example is important to address but if you think if you look at the words addition from any point source and you substitute in for point source pipe which is in the statute and nobody disagrees is his a point source addition to a lake to an ocean to a river in the water in addition to a lake of pollutants from a pipe addition to a lake of sewage water from a pipe i think i submit your honor that the ordinary understanding of the one pictures in one's mind is a pipe that is next to the water not a pipe that is a mile away and i think that's because you're talking about in addition which is a verb that just has to the livery yes you're going to has delivery and it's it's being associated with conveyance which is the thing that transports carries and delivers that sounds like the directly  it is the phrase any point source the phrase a point source that must be the means and because any includes one or more you could have more than one point source and the only way more than one point source and where all of the point sources are carrying delivering is where they are integrated and operating as one point it's the word from suppose i think you have a strong argument on the word from and so to the opposing side have a strong argument on the ordinary meaning of the word from what then should we look at help us decide how to interpret your honor as this court has said many times you're recently you have to look at all the other tools of study one interpretation and what are the best ones for you a couple of that you th ink are best for you if i had to go with two i would start with structure the fact that nobody disputes that there should be a point source program in a non point source program and that their reading renders the non point source program by their own admission into a  more of more than fifty thousand dollars a day we're talking about a permanent regime and what would we have expected congress to have written something that requires an after the fact analysis of traceability or something that could be determined ahead of time by mere observation that there is here a discernible confined discrete conveyance that is delivering the pollutants to the water i need to go get a permit the term from could be read very broadly to me that a discharge requires a permit if the pollutant emerges at some point from a point source and by some means no matter how  remote some quantity of the pollutant eventually makes its way into the waters of the united states and i take it that interpretation which respondents once advocated is no longer their position so what concerns me is whether there is any limiting principle that can be found in the taxed and is workable and does not lead to absurd results in your honor i think the limiting principle is the means of delivery to us which is the view that what congress wanted regulated entities and regulators and courts to look at i how is the pollutant reaching the navigable water is a discernible confined in discreet conveyance now that is a case by case factual determination and there are lines that need to be drawn but we think in the overwhelming majority of cases it's going to be clear your honor in terms of whether from could be more broadly read i think yes if the statue were written differently if it said for example emitted from a point source that might be a different case what about the limiting principle that the respondents now propose which is that it has to be fairly traceable and there has to be proximate cause ation and therefore foreseeability is can that be found in the text and is it workable you know we don't think it can be found in the text because we don't read from we don't think congress intended from to mean causation so one we don't think it can be found in the doug flutie a normal way of reading the word from wouldn't in other words to say to decide whether something is from something else you have to look as to whether it's from something else you are from your honor with respect i think it is that as a certain kind of word is following from if you said for example your honor this arrived from miami miami as a place of origin and so yes from is indicating the source the place where that started but if you said this arrived today from a truck i posit your honor i submit that truck is being used as a conveyance there it's not necessarily the point of origin  party at a different location and i pour whisky into the punch bowl there nobody would say that i added whiskey to the punch from the bottle it would be true that the punch that whiskey originated in the bottle its root was fairly traceable from the bottle to the punch bowl and it wound up in the punch bowl but you wouldn't say it was added to the punch from the bottle now at the other extreme if i brought the bottle to the party and i poured it for the whisky from a few inches above the surface of the punch and so it traveled through air or if it traveled through a funnel so it passed over a solid surface in ordinary parlance we wouldn't say that simply because there was some spatial gap between the bottle and the punch therefore i didn't add it from the the bottle to to the part which in between those two extremes i don't think that the two in from will get you all the way home i think the court needs to look at other provisions of the clean water act to determine what sort of break in the chain will cause the release no longer to be a discharge from the point source to the navigable waters but the fairly traceable test that the th circuit adopted just can't be right it would encompass you know if trans butin over to the whiskey example it would encompass situations where i poured the whisky from the bottle into the flask nobody would treat that as addition of the whiskey to the punch from the bottle now with respect to ground water in progress look the reason that e p a has concluded that groundwater in particular will break the calls will change so that it will no longer be in addition from the point source to the navigable water groundwater is really treated in the clean water act as its own thing and in large part that's because of its distinct physical characteristics but there is a body of both state and federal law that regulates groundwater specifically in part to protect the drinking water supply because groundwater is obviously important for that in part because of potential downstream effects on the quality of navigation and in your test any little bit of ground water is enough to break the chain yes now now the hypothetical yes i mean ok so two inches two inches but that the hypothetical in which somehow the pollutant will be released from a pipe and will treat travel through two inches of water but won't travel over land doesn't seem realistic that is if you imagine a pipe releasing pollutants five feet from the shore and some of the difference between the ground water and the land of the big difference is the ground and then there's not a conveyance the big the big difference for purposes of applying the statute is that the land is not the the land right next to the bank is not subject to its own body of distinct federal and state regulation in the way that groundwater what what do you say to the hypothetical which is the pipe goes five feet to the sure if it goes five feet to the shore and the pollutant travels on to the land travels across the land and into the water you know through it pipe or simply through the force of gravity because you're on an incline we would say that's covered the pipe is on is on the land and spews on to the land it's regulated and you need a permit but if the pipe is was a road map i guess you said at the hypothetical it's it's not realistic but why isn't it realistic you've just provided a road map you know put your pipe underground well i think if you were going to do it in the form of a well or do it in the form of a contraption that had the physical consequences of a well that is you were injecting pollutants into the groundwater from the surface and it would be subject to this distinct body of regulation the clean water act requires states that want to implement their own to administer their own these programs to regulate disposals into wells the safe drinking at water act regulates disposals into wells that will affect drinking water quality so i don't think that the potential for evasion it is the problem i see is that all those other statutes have different focuses so you look at circular opa there remedial there after the fact this statute is preventative we want to avoid having to clean it out that's why we get a permit and i don't see many of the other statutes you cited in your brief as really addressing that significant problem which is the preventive issue and so to not exempt groundwater they exempted from a whole series of other means of delivery but they chose not to extent ground it it's simply a lost of of the fact that the program is not intended as a cure all it's not intended to deal with every form of activity that might ultimately result you know that's true mr stewart and nobody is saying that the federal government can go in and start regulating groundwater as ground water and likewise nobody's saying that it can go in and start regulating non point sources as non point sources but here the question is the pollution is coming from a point source an undisputed point source and going into the navigable water and the only question is whether the fact that there's some kind of intermediary between the two even of you know mr lynn says some kind of intermediary  ground underground whether that makes a difference to the point of this regulation is to go at the source and the source is still is a point source regular amid in pollutants it leaves you i guess what i'm saying is this leaves a very large sphere of activity that the federal government is still not touch in all its still in this insistence that when the federal government permit in programming applies to point sources it applies to those point sources regardless of whether it goes two inches underground i guess the other thing i would say is when we're distinguishing between non point source and point source for loop pollution we are at least in general looking at the means by which the pollutants are conveyed in to  the waters and so for example if you apply fertilizer to your lawn and a rainstorm and the fertilizer is washed into a nearby river that the contraption that you use to apply the fertilizer might get the statutory definition of a point source but that would still be treated as nonpoint source pollution it would be what they refer to sometimes as as sheep flow on one channel ised rainwater that washes into an affable water so it's an issue in our justice briar's been different purposes and i'm worried about the evasion or area that we talked about st so it seems in this case in my mind at the moment is what's the standard for separating the sheep from the goats and you're basically saying the th circuit's way too broad and so are they so we come up with zero ok close to zero now the best i want to try out one thing if you think i have any reaction to it if it's it's regulated bar under this if it's the functional equivalent of a direct discharge now the reason that i put that is because that leaves a lot of room for the e p a to write regulations to decide what is the functional equivalent of a direct discharge and it's now or the th circuit if you want to if you want to have a reaction to that have i mean i guess the reason i'm skeptical of that for it from our point of view is i think the people without further guidance from the court i think the people on the other side of the case and there are miki would say if it can be shown that the pollutants that were released from the point source ultimately wound up in the navigable waters then it is the functional equivalent of then what we do is basically it would be up to the e p a policed by the courts to see that they've come up with a bridge a reasonable decision consistent with the basic objectives of the statute ok so we don't know exactly what the right you see the board yet i guess part of that obviously if we had rule making authority and could could flesh that out it would be helpful i still have concerns about in the approach that that could be interpreted as saying if the pollutants make it to the navigable water then it's covered thank you counsel shrink and mr chief justice of new please the court the clean water act prohibits unpermitted editions of pollutants to navigable waters from any point source this prohibition is not limited to pollutants that flow directly from a point source waters the word directly is nowhere in the text rather all that's required is that the pollutants be from a point source the act expressly defines point source to include wells and the common use of from most indicate the starting point cause or source of something when you buy groceries you say they came from the store not from your car even though that's the last place they were before they entered your house likewise the millions of gallons of treated sewage entering the pacific ocean  petitioner's wells under any understanding of the term for three decades e p a interpreted the clean water act prohibition this way in all that time the parade of horribles petitioner imagines never happened because applying the prohibition isn't nearly as complicated petitioner suggests consider three scenarios st in cases like this one large quantities of pollutants and navigable waters are easily traced upstream to the points of this discharge or who should have gotten a permit nd it generally is impossible to tra small amounts of pollutants to an individual point source so the prohibition doesn't apply rd when small amounts of pollution are traceable to an individual source e p a and states can adopt general permits to reduce the regulatory burden general permits cover entire classes of discharges like storm water from construction sites and spraying pesticides and allow the discharges as long as you meet the permits requirements applying the clean water act as written protects our nation's waters and does not impose a significant permit simply by pulling its pipe out of the neighboring creek and sticking it into the groundwater but that's the extreme problem on the other side but the extreme issue and you're saying what is the limiting princip as far as i understand once you get the pollutant in the ground water and the groundwater goes into the ocean so if you get it in the groundwater it's covered by the permit the mr chief justice who will be in principles would be traceability and proximate cause sorry not traceability is it technological issues because we know that the water including the pollutants has gotten to whatever it is the ocean or some whatever the jurisdictional water is it's just a question of how sophisticated the instruments are that can trace it and i'm don't know i don't know exactly how far you know how fast the groundwater is going so so that doesn't seem to me to be a significant limitation to what was the other one that you mentioned notoriously manipulable what give me an example where you think there would be an intervening cause we have in addition to the ground water the ground water eventually makes it to the ocean but there's an intervening cause well for example if someone is just charging  into an injection well they've got a safe rincon water act permit and that permit told them that this groundwater doesn't go anywhere it's isolated it's and i'm looking for a limited principle when the groundwater does go to jurisdictional waters well proximate cause cutoff factual causation when it's too attenuated and so the case there was a case of greater yellowstone coalition which made a finding that where there was evidence that discharges from a mine would mainly at the facts on the ground the factual hydrologic connections and so that would be the traceability i was discussing with the chief justice we found that factual causation so even if there is causation in hydrological connection or hydrological connection and what you're and what you're advocating let's take the example of waste water treatment facility can you think of any situation in which there is traceability and i don't know what the difference is between fairly traceable and i'm fairly traceable but put that aside when when it's traceable but it wouldn't be foreseeable no justice alito i think with a wastewater treatment plant i would find it hard to think of a facility would let's take an example of the ordinary family out in the country that has a septic tank and they buy it from somebody who installs and they get the burr the building permit required by that rural municipality and then it turns out that some of the things are leeching out of the septic tank ten years later and making its way into waters of the united states so they would be violating that they would be violating the clean water act for lack of a permit and would be subject to all the penalties that go with that for every day of the violation well justice alito if i understand your hypothetical correctly at the time that they purchased the house they had no reason to believe that any pollutants would be going into the ocean and that would be a reasonable assumption for a homeowner because septic tanks as both i think the homeowners national homebuilders brief as well as anderson county brief point out the reason that we have these types of regulations locally has nothing to do with the clean water act so that a septic tank is properly installed and it's going to use the ground as a treatment systems about it doesn't even clean ground water much less anyway i mean what if they buy it from and they don't have a lot of money and so they shop around and they buy it from  the lowest cost provider and the lowest cost installer and then if it turns out well that should have been foreseeable that because you bought this from this cheap out that that there was going to be a problem that would be a could just answer justice leaders question i'd be grateful if you would i mean there are other regulations for point sources as well and for for septic tanks but under the foreseeability test or traceability tests you're proposing why wouldn't the septic tank that foreseeability objectively it's not their personal right you don't want to subjective test when the objective test correct your so all that talk about what they personally think is irrelevant  and that snow in the rockies tends to wind up in the mississippi river and that this septic tank happens to be pretty close to a navigable river and it was put in by a shoddy installer own whatever his facts you have that are objecti forget about the homeowner subjective intentions you're going to have a pretty good case let's posit hypothetically that it was foreseeable that this septic tank and we might put in san francisco's green water treatment plants and a whole lot else are foreseeable and are going to wind up in the states what limiting principle do you have to offer the court well you also have the concept of traceability so usually when you have one step to take you have more and so because you find pollutants in the water doesn't mean you know which one it's from the definition of point source includes its st term discernible and so that's why the point source program focuses on whether you have a discernable points or trying with this you're trying with this but look i learned in the th grade and it may be wrong that water does run downhill and that virtually every little drop of rain that falls finds its way to the sea and that's an overstatement but not too much so it's not just the septic tank the miner gets up in every morning he throws his shaving water outside the house at mt pike's peak ok now there's a very good chance that that will end up in a river and read your brief brief on that but the scientists really convince me they're geniuses and they can trace all kinds of things so the problem that i saw that i think we're all saying with the traceability tess is i've  stated it but not by too much and therefore it puts all kinds of people in the position of having to get a permit have you ever tried to do that that's a big complicated thing ok so we're looking at least i am for something not quite as broad as traceability but something that doesn't run into the problems that you properly point out so all kinds of things i mean that's why i put this functionally equivalent of a direct discharge which imposes some kind of limit on the way they can write this is for them they should write rules ok but possibility and causation there we are every little drop of rain i mean you know just prior we believe water through some distance of ground water whether that cuts off clean water out liability the answer to that is clearly no writerly no and we were right in opinion and in writing the opinion yes i think we're going to have to have a standard and i don't just look at the language that's very important the language yes but i am worried about five hundred million people or something suddenly discovering that they have to go apply for a permit for the e p a and traceability and causation don't quite seem to do it so i wonder if you have any sort of fallback position there that would cure my worry without getting into the of asian problems and just as part of we could certainly embrace functional equivalent because there's no question that congress intended to regulate discharges whether it goes through the air or now everyone everyone here agrees that the air is not a point source but everyone also agrees if the point source discharges into the river through the air it's covered we in the united states agree that it also flows over the land which is also done covered by the clean water act it's covered and i would i would i would submit that there's nothing in the language of the statute that exempts points towards discharge just because it touches a little bit of ground water congress could have done that there are a number as just a sort of i or mentioned there are a number of a numerated exemptions in the clean water act things that would otherwise be point source discharges so directly in the definition of point source you exclude things like agricultural return for irrigation return flows and agricultural stormwater then us high gear i don't mean to be critical of the author of the phrase but what does functional equivalent me but what do you understand it to mean i mean the what we're looking for is for an equivalent it's an equivalent to a point source right which writes ok i think of a pipe yes or what's the functional equivalent of a pipe when you're talking about groundwater woman's sh dispose of it just as well for injection wells that's the functional equivalent from the question is do you have an identifiable point source and it's the same to the receiving body water body if you do it through the groundwater over the ground through the air or directly into it if the pollutants  fine she should be that your answer to me is that the functional equivalent is anything that gets to the jurisdiction water in our that i mean that's why we suggested is the test that it would be traceable and so you would have causation in fact and use principles of proximate cause which this quarter's embraced in other situations like an endangered species act it prohibit it prohibits take of endangered species through habitat modification or worry though he'll have an opportunity because you didn't does give the e p a some leeway on this but doesn't go as far as what traceability and causation do which seem to say the sky's the limit and that that that's what the question before the court the question presented is whether or not mere passage through a little bit of ground water cutoff clean water and i want to have good maybe i don't understand the science of this and perhaps like scientists can do everything but what  question for these sort of septic tank examples be that your traceability requirement has to be that you look at the ocean and you find these pollutants in the ocean and you have to say these pollutants came from a particular place could you say that as to a septic tank no in our view justice kagan you normally could not i mean if there's only one septic tank if you're an area where there's one septic tank and you found fecal coliform or something that's get permits is that right is that the way you understand the traceability requirement not at all not at all so you have to do is get a bunch of behaviors and all put the septic tanks in and then you're scot free if you if you cannot determine which point designer identifiable point source to control so you don't know you don't know who's doing it then that is that is archetype non point source so you're saying if it's one house one septic tank that person will need a permit if it's a residential development and you have one hundred dollars septic tanks which would seem to me to be a one hundred times worse they don't need a permit if you don't know which house might have a septic tank that has that was poorly installed the didn't follow you know they didn't follow the rules or had some aberration geology such that it would be polluting the ocean i mean i would you know that's one of the usual thing in law right like you can't hold somebody responsible for somebody you know something unless you knew that they were responsible for that thing correct and if there are twenty other people who could be responsible for that thing then you can't hold them responsible for that thing that's absolute so here we don't you know we don't have that problem it's an agatha christie not we have twenty people and they all shoot the gun at the would hold them responsible because a toilet could be a point source it goes into a play then it goes into waste or treatment plant because in a pipe and they go to the ocean outfall that's points where support sorts a point source and eventually they would hold the toilet flush or liable perhaps under their theory but fortunately congress in promulgating the clean water act provides specifically for people flushing their toilet that if it goes to a wastewater treatment plant and it's not a hazardous waste you're flushing down the toilet there's no pretreatment standard and you don't need to get a permit because it seems to me that's one of the can textual points that the other side points up here you make a good argument about the word from in the tax the other side has its responses and to figure out how to interpret and one of the things they say we should look at is structure and another thing is context and on the context of things they point out i want to have a chance to respond or this would be a massive increase in the permanent program they say the costs  permanent are high they say and i think you agree with that when you have to get a permit and the uncertainty about when and whether you would need to get a permit which i think is the colloquy you had with the chief justice and justice kagan as well as transforming the federal state ballots are those of the context or points that they raised to help us figure out this interesting and difficult question about the tax and give you a chance to respond to those kentucky points because that's what's bothering me ok just as you have no with respect to the issue of whether it would be a massive expansion we the court has benefits here from thirty years of experience this is not a new test that was articulated by the court below but for thirty years consistently said and implementing states consistently followed that discharges that reach navigable water be a groundwater require a permit and everyone under the sun has not required a permit with respect to i mean they mentioned something like half a one million injection wells well injection wells to get there on that list from the e p a because they got a u i c permit injection control permit and in doing that they had to look at the hydrology of the situation and you know a lot about whether or not you were likely to pursue navigable water and  particularly the e p a officials brief there is just a wealth of information there on permits that have been issued by e p a in states over these past thirty years for concentrated animal feeding operations for wastewater treatment plants that's similar to theirs so close i agree with you on this just hypothetically that e p a has been doing something like this and so it wouldn't be a massive increase you agree with you on that then i do think the uncertainly points of the big point for you to deal with because you have to know in advance whether you get the permit or else you're going to be paying a huge amount at the back end and so some clear line for the property owner i think is really important here well in our perspective specifically with individual homeowners and septic tanks if you're if you've installed you're tempted septic tank according to local ordinances and state regulation which are intended to protect ground water much you know much less navigable waters if it's not polluting the groundwater and certainly that polluting the navigable waters if you complied with that if you if you maintain it properly you have for objective lee you have no reason to believe that's polluting the ocean and so you would not have any foreseeability any obligation to get a permit in addition if there was some average you also don't want to be the subject of citizen suits and so you would like that line not to be something that subjectively clear after a lot of litigation but objectively clear on the front end under under should be congress an act of this is  citizen supervision at the same time as with clean water act in one hundred and seventy two dollars and i am not aware of any lawsuit against an individual septic tank owner for the violation notwithstanding again a consistent interpretation up until april of this year by the environmental protection agency the discharges via groundwater recovered in the reason for that is in order to establish traceability in foreseeability and all that you need a big discharger like the petitioner here you've got millions of gallons per day in an intentionally design facility congress did not intend to create a loophole i want to briefly address the united states argument or something about the structure of the act something special about groundwater well nearly every provision that they cite the talks about these programs for groundwater in the same breath say and surface waters and navigable waters congress treated than the same and so in the same way that those provisions don't exempt surface waters waters the united states they don't exempt groundwater the court has spoken about hiding elephants and mouse holes was groundwater an elephant at the time when the clean water act was an act and if it was how do you account for the fact that there isn't any direct reference to it in the definition of a conveyance or any of the other provisions that are directly relevant here well justice alito there is no reference in any of the n p t s permuting program or the definition of a point source to regulating discharges via and yet petitioner concedes if the pipe is hanging over the water's edge it can pass through air the united states concedes i mean do you think that that's really comparable where you have a pipe that's over the river and the pollution is coming out of the river and going through the air or that anybody to seriously argue that well because it went through the air it was uncovered you really think that's comparable to groundwater that can travel a long distance well justice leader i can imagine a situation which you have a pipe hanging out over the water and it's trickling into the water and there's a strong wind  in once in a while the trickle gets bad upon the shore so that's not covered because it's not on the shore and then it's then the wind dies down it goes into the water so there's really you know there's no difference in the situation the same thing with respect to land there's no reference to land in the and you do that because you know that the pollutant when it comes out of the pipe is going to flow downhill to the river i don't know that you're going to be able to avoid the conclusion that whatever it is that takes it down that slope is a conveyance conveyance has to be confined in some way so for example this wastewater treatment plant comes out at a beach park which belongs to the county so let's say instead they ran their discharge pipe to the beach park they paved the land so wouldn't create any furrow and he did chaney and in sheet flow it ran into the ocean but they would say it's not on point source pollution because it stops short of the water's edge now the united states would concede that that is covered but if instead of doing that they went to the beach park and they put a lot of gravel down and they knew that it would run into the gravel and then you know go into the groundwater for like three inches before getting to the ocean itself because the ocean if you if you've been to the beach you dig in the sand you get down to water pretty quickly well that's groundwater unless and until it's on the surface and then it's the ocean so under the united states theory this this pipe that then goes into the same end and then go through a very small stretch of groundwater that's all the sudden exempted so to use you know mr mr stewart's example about the whiskey and the punch and the flask and he said you would never say the whiskey that's in the punch came from the bottle you say came from the bottle that's how we know it's whiskey and here we know we have whiskey whiskey in the form of a injection well that is charging three to five million gallons per day to the ocean and there's nothing about the clean water act that would allow a polluter to evade it bye bye bye by pouring the whiskey via the ground well i don't know mr stewart was spiking punch but we were just saying his extent to extend his example that it came from a barrel in scotland well let's say the whiskey was  some way and i'm not a whiskey drinker and i don't mean to offend any whiskey drinkers but if the whiskey were spoiled somewhere you might ask where did this whiskey come from and you might trace it back to the barrel in scotland in particular if it's poisonous or harmful in some way so it all depends on the context what congress wanted to do here was regulate pollution at the source when we can and the source here clearly is their injection well but congress knew about the grand groundwater issue and there were debates about this precise groundwater issue maybe not this precise but the groundwater issue and there were proposals as you're well aware and some of the amicus briefs go through this a great way to put in regulation of groundwater and congress rejected those so how do we assess that and thinking about groundwater and as i mentioned in seventeen thousand two hundred your point your point is that's a separate topic from the issues today absolutely in the same debates they said we recognize the essential link between ground and surface waters in the artificial nature of any distinction if congress source just charges that could be characterized as agricultural storm water or irrigation return flows that usually happens in the form of a ditch and they said we do not want to regulate that under the point source program but here what you have  pollution that just happens to pass through wire the very st time really i'm sorry why are the states inadequate to do this and are they inadequately regulating in substantial numbers of states in your view are they in doing an adequate job in substantial numbers in your view of regulating this substantial source of pollution well there are examples in the e p a officials brief in which delegated states are regulating those sources of statement by congress that you need to have uniform regulation to protect our national waters which are a national concern thank you council mr lynn three minutes thank you mr chief justice i just like to pick up where my friend left off which is with the example of the colorado to the foot in maryland's brief i think that is as i thought i heard him say at the very end there precisely an example of how the comprehensive regime works a colorado d e stricter requirements on p d s permits and of course why are you doing what you're doing this is fairly traceable to you in large quantities the state didn't control you what regulations are there in place that do you know are there are a number starting with the i didn't know you're doing it what's stopping you from this is not so how did you get away with it and how do you continue without taking remedial steps you're i don't think this is a question not you but i mean of course you are standing in the polluters what are they what is being done to stop permits point source discharges can include pollutants that are below a limit so i think that the mere fact that there are are nutrients that are getting into the ocean doesn't mean that the system has failed and i think it comes back to the fact that in this particular circumstance these wells were constructed with encouragement and funding from e p a as a more environmentally protective solution than simply constructing an outfall pipe to the ocean if i can come back to the traceability point i think it's also important to note where my friend runs very far away from the subject tank examples and justice kagan to answer your question about traceability there are seven thousand cesspools within seven hundred and fifty feet of the ocean in hawaii and we cite to a study  reply brief that showed that through a trace or die transfer study not dissimilar from what was used here it was a stablished that pollutants from individual septic tanks were getting to the ocean within three hours to five days so traceability can be done septic tanks are constructed near the ocean and i don't think that there is a limiting principle that would give those landowners any certainty which comes back to the point which i think is the most important about predictability and justice for you it might you finish your thought you think you had suggested functional equivalence i think it's important to remember the context or we're talking about here this is a a permit ng program that applies to ordinary people and we would require fifty thousand dollars a day  fines we we are looking at a statute and trying to figure out what congress intended to write to give people that kind of predictability thank you counsel