UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF STONE
___________________________________
)
UNITED STATES of America,
)
Plaintiff,
)
)
v.
)
No. ST-15-02
)
Monica GELLAR-KING,
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Defendant.
)
___________________________________)
ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS
AND MOTION TO DISMISS THE INDICTMENT
Tribbiani, J.
On August 4, 2014, Monica Gellar-King was indicted under 33
U.S.C. § 1319(c)(3)(A) (2012) on one count of knowing
endangerment for the discharge of a pollutant into “waters of
the United States” without a permit, in violation of 33 U.S.C. §
1311(a) of the Clean Water Act. Gellar-King’s business
associate, Phoebe Bushay, was indicted under 33 U.S.C. §
1319(c)(1)(A) on one count of negligently violating the same
provision. Bushay pleaded guilty and has been sentenced. GellarKing pleaded not guilty and filed two timely pre-trial motions.
First, Gellar-King has filed a motion to suppress documents
seized during a warrantless search of a cottage on the
defendants’ commercial property. Fed. R. Crim. P. 12(b)(3)(C).
Gellar-King claims that the search of the cottage, where she and
her family were living, violated her Fourth Amendment rights.
Second, Gellar-King moves to dismiss the indictment for failure
1
to state an offense. Fed. R. Crim. P. 12(b)(3)(B). Gellar-King
argues that 33 U.S.C. § 1311(a)’s permitting requirements do not
extend to the discharge of a pollutant into a groundwater
aquifer. For the following reasons, this Court DENIES GellarKing’s motion to suppress and motion to dismiss.
Facts
The following facts are alleged in the indictment and are
not in dispute. In the spring of 2004, following the adoption of
their twins, the defendant in this case, Monica Gellar-King and
her husband, Chandler King (collectively, “the Kings”), decided
to leave their jobs and tight-knit group of friends in Manhattan
and relocate to the rural community of Edwards, population
5,120, in the state of Stone. They found life in Edwards
peaceful and pleasant, and decided to buy a home. Their friends
from Manhattan were frequent visitors.
In 2011, one of those friends, Phoebe Bushay, and her
husband, Mike Hannigan, also moved to Edwards. Bushay’s career
as a musician and massage therapist in New York had stalled, and
she was looking for new business opportunities. Specifically,
Bushay wanted to continue to develop the line of pet soaps and
shampoos (“No Longer a Smelly Cat Soaps and Scrubs”) that she
had begun producing and marketing from the kitchen of her small
New York City apartment. The products had become popular among
Manhattan pet owners, and Bushay had been able to save enough
2
money from sales to expand the business. She planned to buy a
parcel of land where she could build a larger production
facility, and Edwards seemed to be the perfect place.
Gellar-King immediately saw the potential in Bushay’s
business venture, and expressed interest in purchasing a partial
interest in the company. Bushay agreed, and in early 2012,
Bushay and Gellar-King incorporated and registered their
fledgling company, No Longer a Smelly Cat Industries
(hereinafter “NLSC Industries”), as a limited liability company
in the state of Stone. With Bushay’s savings, they purchased a
six-acre parcel of land located ten miles north of downtown
Edwards, but still within the town limits. They constructed two
buildings on the property: a larger production facility where
the company manufactures its soaps and shampoos, and a small
cottage, which was intended to serve as occasional onsite
lodging and as a small office for Gellar-King (collectively “the
NLSC Industries property”). Gellar-King agreed to oversee the
production facility’s operations, while Bushay would run the
company’s marketing and sales.
NLSC Industries began operations out of its new Edwards
production facility in October 2012. To produce its soaps, the
company employs traditional hot and cold reaction processes.
Because Bushay is a vegetarian, however, and because her soaps
are intended for use on pets, Bushay refuses to use animal
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tallow to produce soaps and shampoos. Instead, NLSC Industries
uses a unique and proprietary chemical compound known as
Chemical No. 7. Chemical No. 7 also gives NLSC Industries’ soaps
and shampoos a signature purple hue, which animal lovers have
come to associate with the company’s policy of using production
processes free of animal products or testing.
At the end of the production process, the soap products
undergo a final purification procedure through which the crude
soap curds are boiled in water and precipitated with salt. This
process removes unwanted contaminants; some amount of Chemical
No. 7 is also released into the boiling water. Although Chemical
No. 7 is not toxic on its own or in the final soap products,
Chemical No. 7 does react with some of the unwanted contaminants
that are removed during the purification process. This reaction
produces a chemical waste that can be toxic to humans. The
excess water that remains after the purification process, which
contains this toxic chemical waste, is removed from the soap
mixture using a vacuum drying system and is collected in a large
holding tank, where soap debris in the water is given time to
settle. The contaminated water is then discharged from the
facility into an underground aquifer, known as the Peristine
Aquifer, through a set of injection wells.
An aquifer is an underground layer of permeable rock or
sand, capable of bearing water. The Peristine Aquifer is known
4
as a “contained underground aquifer,” but it is not
hydrologically isolated. The aquifer sits less than a quarter
mile upstream from, and flows directly into, the Great Stone
River, a navigable, interstate river which is the primary water
source for Edwards. No natural or man-made breaks obstruct the
flow of water from the aquifer to the river, and surveys have
confirmed that the aquifer has a substantial hydrological and
ecological connection to the river.
No Longer a Smelly Cat Soaps and Scrubs became a huge
success in Stone. The products were picked up by a number of
local boutique pet supply retailers and grocery stores. In April
2013, Bushay and Gellar-King decided to double production to
keep up with growing demand. As a result, by May 2013, Bushay
and Gellar-King were spending ten to fourteen hours per day
working at the property, managing production, overseeing
marketing and distribution, and operating the plant. Gellar-King
was so busy that she convinced her husband to sublet their house
in Edwards and to live full-time at the cottage on the property.
Gellar-King and her family moved in to the cottage in June 2013.
Beginning in late 2012 and early 2013, the town of Edwards
began to see an uptick in unusual illnesses and medical
complaints. Many Edwards residents began to experience
gastrointestinal problems and vomiting, some suffered from odd
rashes and spells of dizziness. The local hospital reported at
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least two cases of central nervous issues, including tremors and
loss of eyesight. Because these cases were not fatal and
involved fairly mild symptoms, no one in Edwards noticed the
trend at first. In May 2013, however, the situation became much
worse. Over the course of just a few weeks, dozens of Edwards
residents became seriously ill; more than thirty people were
admitted to the local hospital for treatment.
On June 12, 2013, two first graders at the local elementary
school, Pine Peaks Elementary, collapsed in class and had to be
rushed to the emergency room. Fearing some sort of viral
outbreak, Edwards officials immediately closed the school and
sent the students to a quarantine facility. Tragically, one of
the students died on the way to the hospital. An autopsy later
revealed that the child had become severely dehydrated as a
result of unexplained and prolonged vomiting and
gastrointestinal distress.
The next day, the town of Edwards was in an uproar as
public health officials attempted to identify the source of the
unexplained illnesses. That day, Edwards Police Department
Captain Sara Morrison received an anonymous call; the caller
claimed to know the cause of the mysterious outbreak. The caller
told Captain Morrison that “those city people are dumping poison
into the water supply.” Upon hearing this information, Captain
Morrison remembered that Pine Peaks Elementary draws its water
6
supply from a reservoir fed exclusively by the Great Stone
River. Fearing that the caller might be correct, and acting
pursuant to an Edwards Police Department policy1 to follow up on
all tips relating to public safety, Captain Morrison quickly
compiled a list of all businesses located near the Great Stone
River and upstream from the reservoir. She identified three
industrial facilities that met her criteria. She assembled a
team of investigating officers, briefed them on the situation,
and then dispatched them to investigate. Captain Morrison has
stated that because of the caller’s reference to “those city
people,” she instructed her officers to go to the NLSC
Industries property first, as she knew that Bushay had recently
moved to Edwards from New York. Captain Morrison has stated that
neither she nor her officers thought of Gellar-King, who had now
lived in Edwards for almost ten years, as a new arrival.
The Edwards Police Department Policies and Procedures Manual
states: “The Edwards Police Department, by and through its
officers, will immediately respond to and investigate any and
all calls, tips, or other unsolicited contributions of
information, anonymous or otherwise, which pertain to the
health, safety, and wellbeing of the community, regardless of
the perceived reliability of the source or the information
itself. For the purpose of responding to such tips, the highest
ranking officer shall immediately constitute a team of no more
than three officers who shall be tasked with conducting a
thorough investigation of the tip. The purpose of such
investigation shall be, exclusively, the identification and
elimination of any threat to the community, and not the
detection of crime, the collection of evidence, or the discovery
of suspects involved in criminal wrongdoing.” Policies and
Procedures, ch. 4 § 18 (June 15, 2012).
1
7
Officers Richard Bourke and Janice Letmen arrived at the
property at approximately 8 p.m. on June 13, 2013. Officer
Bourke rang the bell at the main entrance to the production
facility. No one came to the entrance, so the officers walked
around the facility, observing the various pipes leading out of
the facility and into the ground. Officer Letmen has stated that
they were concerned that there might have been some sort of
spill or leak about which the plant’s operators were not aware.
Hoping to locate anyone in charge, the officers proceeded to the
cottage on the property. Officer Bourke stated that there were
no lights on inside the cottage, no vehicle in the driveway, and
no noise coming from inside. The officers did observe children’s
toys on the front porch; it was clear to them that the cottage
was being used as a private residence. Officer Letmen knocked on
the door and announced her presence, but received no answer.
Gellar-King and her family were out to dinner at the time.
Officer Letmen, still hoping that someone might be in the
cottage who could let them into the production facility, tried
the front door, found it unlocked, and entered the cottage.
Officer Bourke followed, calling out, “Hello? Police! Is anyone
home?” The officers found themselves in a living room, with an
alcove immediately off to the side of the front door. The alcove
appeared to serve as an office; the officers observed a desk, a
printer, and a filing cabinet. Officer Letmen walked over to the
8
desk and noticed what appeared to be a diagram of the plant’s
operating and water discharge systems, depicting the injection
wells and the underground aquifer. Thinking that the diagram
could assist the police in determining whether there was some
kind of toxic spill or leak, Officer Letmen picked up the
diagram, which had several other pieces paper attached to it.
The officers returned to the Edwards Police Station and turned
the papers over to Captain Morrison.
Attached to the diagram was a one-page report from a
private environmental auditor stating that the chemical waste
containing Chemical No. 7 was present in the Peristine Aquifer
in concentrations high enough to be “hazardous to human health.”
In the margins of the report, there was a handwritten note,
later determined to be in Gellar-King’s handwriting, which read:
“Aquifer feeds into GSR. Spoke with auditor; concerned chems
could reach E drinking water. Auditor recommends EPA permit.
Discuss with PB.” The report was dated March 1, 2013; the
handwritten note was undated. Nothing in the report itself made
reference to the EPA’s permitting requirements. Studies relating
to the water table and hydrology of the immediate area,
documenting the direct hydrological connection between the
Peristine Aquifer and the Great Stone River, were also attached.
These documents, and in particular the handwritten note,
are the only direct evidence the government plans to offer to
9
establish Gellar-King’s knowledge that chemical waste from the
NLSC Industries plant would reach the navigable waters of the
Great Stone River and that the chemical waste discharges
required a permit. Although the note refers to “PB,” Bushay
claims that Gellar-King never said anything to her about the
environmental audit or any permit requirements. Bushay also
claims that she had no knowledge that the chemical waste was
toxic, that a permit might be required, or that the aquifer was
connected to the Great Stone River. Gellar-King’s husband is
refusing to testify against her. The environmental auditor who
completed the report cannot be located.
After reading through these documents, Captain Morrison
contacted the Stone Department of Public Health. Edwards
declared a state of emergency, and immediately shut down all
public water systems drawing from the Great Stone River. The
following day, a state court issued a temporary injunction
ordering NLSC Industries to halt operations pending an
investigation. Suspecting multiple violations of federal
environmental laws and potential interstate contamination of the
waters of the Great Stone River, Stone public health officials
referred the case to the U.S. Attorney’s Office (“USAO”) for the
Southern District of Stone for investigation.
After almost a year of investigation, the USAO determined
that it had enough evidence to prove that NLSC Industries,
10
through its discharge of contaminated waste water, had caused
contamination of the Great Stone River and the town of Edwards’s
water supply. Studies conclusively established that the chemical
waste containing Chemical No. 7 and other chemicals used by NLSC
Industries to produce its soaps were present in concentrations
that were more than three times the level that would be
considered safe. On August 4, 2014, a grand jury indicted
Gellar-King under 33 U.S.C. § 1319(c)(3)(A) on one count of
knowing endangerment for the discharge of a pollutant into
“waters of the United States” without a permit, in violation of
33 U.S.C. § 1311(a). Knowing endangerment carries harsh
penalties and requires the government to prove that Gellar-King
not only knew that she was violating the terms of the Clean
Water Act, but also knew that doing so would place “another
person in imminent danger of death or serious bodily injury.” 33
U.S.C. § 1319(c)(3)(A). Gellar-King filed a pre-trial motion to
suppress the documents seized by Officers Letmen and Bourke, and
a pre-trial motion to dismiss the indictment. This Court held
the motions hearing on December 2, 2014.
Discussion
Motion to Suppress
Gellar-King contends that the Court should suppress the
papers seized by Officer Letmen as the fruits of an unlawful
search. The Fourth Amendment shields citizens from “unreasonable
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searches and seizures.” U.S. Const. amend. IV. The state may not
use evidence at trial that was obtained through an unlawful
search. Herring v. United States, 555 U.S. 135, 139 (2009).
Although in certain circumstances the good faith exception may
render unlawfully-seized evidence admissible, the government has
not raised a good faith argument here. See United States v.
Leon, 468 U.S. 897, 919-20 (1984). Absent a warrant or consent,
a police officer’s entry into a private home is “presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980).
The government concedes that Officers Letmen’s and Bourke’s
entry into the cottage was a search.
Under the exigent circumstances exception, an officer may
conduct a limited search without a warrant if he or she has
probable cause to believe that a crime is being committed. See
Chambers v. Maroney, 399 U.S. 42, 51 (1970). An anonymous tip,
such as the one received by Captain Morrison, is not sufficient
to provide probable cause, and the government concedes that the
officers did not have probable cause to enter the cottage. See
Minnesota v. Olson, 495 U.S. 91, 100 (1990). The exigent
circumstances exception may also apply, however, in “emergency
situations,” because “the Fourth Amendment does not bar police
officers from making warrantless entries and searches when they
reasonably believe that a person within is in need of immediate
aid.” Mincey v. Arizona, 437 U.S. 385, 392 (1978). The
12
government does not argue that police were responding to a call
for aid, however. Instead, the government contends that the
search was reasonable under the community caretaking exception
to the warrant requirement.
The Supreme Court first introduced the community caretaker
exception in Cady v. Dombrowski, holding that when an officer
conducts a warrantless vehicle search while performing a
community caretaking function, and not while investigating a
crime, that search does not violate the Fourth Amendment. 413
U.S. 433, 441 (1973). The Court noted that that officers
“frequently investigate vehicle accidents in which there is no
claim of criminal liability.” Id. As such, the Court observed
that “the extent of police-citizen contact involving automobiles
will be substantially greater than police-citizen contact in a
home or office.” Id.
In a later decision, the Court reconfirmed the “wellsettled distinction” between vehicle and home searches,
explaining that “automobiles, unlike homes, are subjected to
pervasive and continuing governmental regulation and controls.”
South Dakota v. Opperman, 428 U.S. 364, 367-68 (1976). In
applying the community caretaking exception to an inventory
search of an impounded vehicle, the Court repeatedly emphasized
the “routine practice” and “standard procedure” of such
searches. Id. at 369, 375. Routine vehicle searches protect the
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owner’s property, guard against disputes over missing property,
and protect the “the police from potential danger.” Id. at 369.
Following Cady and Opperman, the Supreme Court has not
considered whether the community caretaking exception permits a
warrantless home search, as opposed to a vehicle search, when
the searching officers are not investigating criminal activity.
A circuit split has emerged on this question. The Third,
Seventh, Ninth, and Tenth Circuits have refused to expand the
community caretaking doctrine beyond vehicle searches, stating
that “Cady clearly turned on the ‘constitutional difference’
between searching a house and searching an automobile.” United
States v. Erickson, 991 F.2d 529, 532 (9th Cir. 1993) (quoting
Cady, 413 U.S. at 439). See also Ray v. Warren, 626 F.3d 170,
177 (3d Cir. 2010); United States v. Bute, 43 F.3d 531, 532-33
(10th Cir. 1994); United States v. Pichany, 687 F.2d 204, 209
(7th Cir. 1982). Several state supreme courts have likewise read
Cady to limit the community caretaking exception to vehicle
searches. See, e.g., State v. Wilson, 350 P.3d 800, 804 (Ariz.
2015). In contrast, the Fourth, Sixth, and Eighth Circuits have
demonstrated a willingness to expand the community caretaking
exception to warrantless searches of homes. See, e.g.,
Hunsberger v. Wood, 570 F.3d 546, 554-55 (4th Cir. 2009); United
States v. Rohrig, 98 F.3d 1506, 15090 (6th Cir. 2009); Samuelson
v. City of New Ulm, 455 F.3d 871, 877 (8th Cir. 2006). Several
14
state supreme courts have also adopted the community caretaker
exception for warrantless home searches. See, e.g., People v.
Ray, 981 P.2d 928, 937 (Cal. 1999).
No court in this circuit has considered whether the
community caretaking exception should be expanded to the
warrantless search of a home. Gellar-King asserts that an
expansion of the community caretaking exception to warrantless
searches of homes would violate the Fourth Amendment. She argues
that her privacy interest outweighs the government’s interest in
conducting a warrantless search based solely on community
caretaking functions. See United States v. U.S. Dist. Court for
E. Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972) (observing
that the “physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed”).
To determine whether a warrantless search is reasonable,
this Court must balance “the government interest motivating the
search” “against the intrusion on the individual’s Fourth
Amendment interests.” Erickson, 991 F.2d at 531 (citing Maryland
v. Bui, 494 U.S. 325, 331 (1990)). Gellar-King contends that the
broad concept of community caretaking does not justify a
warrantless search of a home, with its associated heightened
expectation of privacy. See id. at 532. The government contends,
however, and this Court agrees, that the community caretaking
exception focuses not on the location of the search, but rather
15
on the officer’s function in conducting the search. See
Hunsberger, 570 F.3d at 554; see also Katz v. United States, 389
U.S. 347, 351 (1967) (“The Fourth Amendment protects people, not
places.”). The need to protect the public from an ongoing threat
to health and safety is a compelling government interest
deserving significant weight. See Rohrig, 98 F.3d at 1521). This
interest outweighs Gellar-King’s privacy interest here.
Gellar-King asserts that expanding the community caretaking
exception to residential searches muddles the distinction
between that exception and the exigent circumstances exception.
See Ray, 626 F.3d at 176. Expanding the exception to residential
searches, however, acknowledges the critical differences between
the emergency exigency and community caretaking exceptions,
while demonstrating that both exceptions are needed to allow law
enforcement to protect the community. See Ray, 981 P.2d at 47374. Moreover, nothing in Cady or Opperman suggests that those
decisions foreclosed expanding the community caretaker exception
to home searches. Gellar-King argues that the Supreme Court only
permitted searches in Opperman and Cady because “the expectation
of privacy with respect to one’s automobile is significantly
less than that relating to one’s home or office.” Opperman, 428
U.S. at 367; see also Erickson, 991 F.2d at 532. This Court
finds, however, that the key requirement underlying the
exception outlined in Cady was that the officer who conducted
16
the search “was ignorant of the fact that a murder, or any other
crime, had been committed.” 413 U.S. at 447. The Court upheld
the search because it was “totally divorced from the detection,
investigation, or acquisition of evidence relating to the
violation of a criminal statute,” id. at 441, not because it was
a vehicle search. Cady created an exception that turns on the
officer’s function in conducting the search, not the site of the
search. See id.; Quezada, 448 F.3d at 1007.
Finally, Gellar-King contends that even if the community
caretaking exception applies to home searches, it only applies
to those searches conducted pursuant to routine police policy.
See Hunsberger, 570 F.3d at 554. Gellar-King claims that
although the Edwards Police Department had a general policy of
following up on all leads pertaining to the safety of the
community, officers were targeting the NLSC Industries property
based on their presumption that the caller’s reference to “those
city people” meant Bushay. This Court finds, however, that the
search “was animated by community caretaking considerations,”
not by any law enforcement concerns. Hunsberger, 570 F.3d at
554. The search was conducted as part of a routine policy, and,
therefore, the search was “totally divorced” from any criminal
investigation. Cady, 413 U.S. at 441; Quezada, 448 F.3d at 1008.
17
For these reasons, this Court denies Gellar-King’s motion
to suppress the allegedly incriminating documents seized during
the search of the cottage.
Motion to Dismiss the Indictment
Gellar-King contends that the Court should dismiss the
indictment against her for failure to state an offense. GellarKing is charged with knowing endangerment under 33 U.S.C. §
1319(c)(3)(A) because she allegedly discharged a pollutant into
“waters of the United States” without a permit, in violation of
33 U.S.C. § 1311(a) of the Clean Water Act (“the Act”). GellarKing claims that the discharge of chemical waste into the
Peristine Aquifer does not require a permit under § 1311, even
though the chemical waste did eventually reach the Great Stone
River, and that she therefore cannot be charged with a criminal
violation under 33 U.S.C. § 1319(c).
Under the Act, it is unlawful for any person or entity to
“discharge any pollutant” without first obtaining a National
Pollutant Discharge Elimination System (“NPDES”) permit. 33
U.S.C. §§ 1311(a), 1342(a). The Army Corps of Engineers
(“Corps”) and the Environmental Protection Agency (“EPA”) share
responsibility for administering the Clean Water Act. Stone has
no state Clean Water Act permitting scheme or groundwater
regulations, and the EPA issues NPDES permits directly to
applicants in Stone. See 33 U.S.C. § 1342.
18
Individuals who discharge pollutants without a permit can
face criminal charges; the harshness of the penalties varies
depending on the actor’s mens rea. 33 U.S.C. § 1319(c)(1)-(3).
If an individual discharges pollutants into water that is not
covered by the Act, however, no permit is needed and the
discharger will not face civil or criminal penalties under the
Act. 33 U.S.C. § 1311.
The Act defines the “discharge of any pollutant” as “any
addition of any pollutant to navigable waters from a point
source.” 33 U.S.C. § 1362(12)(A). The definitions of the terms
“addition,” “pollution,” and “point source” are not at issue
here. Gellar-King concedes that the chemical waste produced
during NLSC Industries production process was a “pollutant” and
was “added” through a “point source:” the injection wells used
to dispense the water containing NLSC Industries’ chemical waste
into the Peristine Aquifer. Gellar-King admits that NLSC
Industries did not obtain a NPDES permit authorizing the
discharge. Neither party contends that the groundwater conduit
(the aquifer) was itself a point source. All that Gellar-King
asserts is that adding a pollutant from a point source to
groundwater that eventually feeds into a river is not the legal
equivalent of adding the pollutant from a point source directly
to a “navigable water.”
19
The Act defines “navigable waters” as “waters of the United
States.” 33 U.S.C. § 1362(7). The Supreme Court has determined
that Congress did not intend to give great significance to the
word “navigable,” and therefore construes the term “waters of
the United States” broadly. See United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 133 (1985). The Great Stone
River is, in fact, navigable, and Gellar-King stipulates that it
is a water of the United States.
Before this Court dives into the EPA’s guidance and
regulations concerning “waters of the United States,” some
background is in order. In the early 2000s, a closely-divided
Supreme Court muddied the water around the definition of
navigable waters and “waters of the United States” with two key
decisions: Solid Waste Agency of Northern Cook County (SWANCC)
v. the U.S. Army Corps of Engineers, the Court, 531 U.S. 159
(2001), and Rapanos v. United States, 547 U.S. 715 (2006). In
SWANCC, the Court struck down a Corps regulation that regulated
as a “water of the United States” any water providing a habitat
for migratory birds. 531 U.S. at 172. The Court held that this
migratory bird rule impermissibly extended Clean Water Act
coverage to wetlands that were not sufficiently connected to
actual navigable waters. Id. at 167, 172.
In Rapanos, a plurality of the Court held that the term
“waters of the United States” extends only to “relatively
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permanent standing or flowing bodies of water, not seasonal or
intermittent channels” and to wetlands with a continuous surface
connection to regulated waters. Rapanos, 547 U.S. at 739. In a
concurring opinion, however, Justice Kennedy placed heavy
emphasis on the “significant nexus” standard, under which the
Act would apply to surface water and wetlands not adjacent to
navigable waters if they “significantly affect the chemical,
physical and biological integrity of other covered waters.” Id.
at 780 (Kennedy, J., concurring). Although SWANCC and Rapanos
both involved wetlands, these decisions influenced EPA and Corps
regulations and guidance regarding “waters of the United
States.” See 33 C.F.R. § 328.3 (2015) (adopting the “significant
nexus tests” for evaluating whether the Act can apply to certain
bodies of water).
In early 2015, the EPA and the Corps issued a new rule
explicitly excluding isolated groundwater that lacks a
connection to surface water from the definition of “waters of
the United States.” See id. § 328.3(b)(5). The new rule states
that “groundwater, including groundwater drained through
subsurface drainage systems” is not a “water of the United
States” even if it might otherwise be covered under the
significant nexus provision or any other provision of the rule.
See id. The guidance accompany the rule notes, however, that the
categorical groundwater exclusion does not apply to “surface
21
expressions of ground water . . . such as where groundwater
emerges on the surface and becomes baseflow in streams or spring
fed ponds.” Clean Water Rule: Definition of “Waters of the
United States,” 80 Fed. Reg. 37,054, 37,099-100 (June 29, 2015)
(to be codified at 33 C.F.R. pt. 328).
The guidance further notes that the groundwater exclusion
reflects the agencies’ longstanding practices, indicating that
prior Corps or EPA guidance remains in effect. Id. at 37,073.
Indeed, courts, the EPA, and the Corps have long held that
isolated groundwater falls outside the Act’s coverage. See,
e.g., Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1179
(D. Idaho 2001). The new rule did not, however, resolve the
issue of Clean Water Act coverage in cases, like this one,
involving the indirect pollution of a navigable water through a
groundwater conduit. See Hawai’i Wildlife Fund v. Cnty. of Maui,
24 F. Supp. 3d 980, 993-95 (D. Haw. 2014).
No court in this circuit has considered the question of
whether adding a pollutant to groundwater that has a significant
hydrological connection to a navigable water is the functional
equivalent of adding that pollutant directly to the navigable
water. However, the issue has long divided other courts, even
before the EPA issued its new rule. Compare Village of
Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th
Cir. 1994), with Hernandez v. Esso Standard Oil Co., 599 F.
22
Supp. 2d 175, 180 (D.P.R. 2009). To the extent that these cases
base their analysis on a “significant nexus” between the
groundwater in question and a “water of the United States,” the
new EPA rule rejects this analysis, and the government does not
assert any argument based on the significant nexus theory.
Gellar-King’s asserts in her motion that because the EPA’s
new rule expressly excludes groundwater from “waters of the
United States,” her addition of a pollutant to the aquifer,
which is groundwater, is not covered under the Act. In response
to Gellar-King’s motion, the government urges this court to
adopt the position that when an actor adds a pollutant to a
point source which flows into groundwater, and that groundwater
has a direct hydrological connection to a surface water that is
a “water of the United States,” Clean Water Act permit
requirements apply. See, e.g., Hawai’i Wildlife Fund, 24 F.
Supp. 3d at 995-96; Bosma, 143 F. Supp. 2d at 1180; Williams
Pipe Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1319-20 (S.D.
Iowa 1997); Sierra Club v. Colorado Ref. Co., 838 F. Supp. 1428,
1434 (D. Colo. 1993).
Under this “conduit” or “direct hydrological connection”
theory, discharging a pollutant from a point source into
connected groundwater is functionally equivalent to discharging
the pollutant into the navigable surface water itself. See
Hawai’i Wildlife Fund, 24 F. Supp. 3d at 998. This theory
23
recognizes that groundwater itself is not a water of the United
States, but holds that the migration of pollutants from
groundwater into a hydrologically connected navigable-in-fact
water subjects discharges into that connected groundwater to the
Act’s permitting requirements. Id. at 996.
Other courts have rejected the conduit theory, however,
holding that even a demonstrated direct2 hydrological connection
between a navigable water and a polluted groundwater is
insufficient to extend the Act’s regulation to subterranean
water sources. See, e.g., Oconomowoc, 24 F.3d at 965; Umatilla
Waterquality Protective Assoc., Inc., v. Smith Frozen Foods,
Inc., 962 F. Supp. 1312, 1318 (D. Or. 1997). But see Nw. Envtl.
Def. Ctr. v. Grabhorn, Inc., No. CV-08-548-ST, 2009 WL 3672895,
at *11 (D. Or. Oct. 30, 2009) (contradicting Umatilla
Waterquality).
Gellar-King urges this Court to reject the conduit theory
and accordingly, to dismiss the indictment against her. She
contends that treating an explicitly excluded category of water
as a “water of the United States” merely because it eventually
flows into a navigable water impermissibly expands the meaning
2
Some courts have refused to extend Clean Water Act coverage to
groundwater in certain instances because the groundwater’s
connection to navigable surface water was purely hypothetical.
That is not the case here. The record demonstrates, and GellarKing concedes, that the Peristine Aquifer’s has a direct
hydrological connection to the Great Stone River.
24
of that term. See Oconomowoc Lake, 24 F.3d at 965. She points
out that Congress intentionally omitted groundwater from the
Act’s permitting regulations. See Umatilla, 962 F. Supp. at
1318. She further contends that the Act’s legislative history
shows that Congress wanted to leave groundwater regulation to
state law. Oconomowoc Lake, 24 F.3d at 965.
Nothing in the Act’s plain language, however, indicates
that the conduit theory impermissibly expands upon the term
“waters of the United States.” The conduit theory does not
affect the definition of the term at all, but simply holds that
the indirect addition of a pollutant to a navigable water
through groundwater requires a permit. Section 1311 prohibits
the “discharge of a pollutant” without a permit, and § 1362(12)
defines “discharge of a pollutant” as the “addition of any
pollutant to navigable waters from any point source.” Congress
did not use the word “directly;” thus, the Act can and does
regulate pollution added to a navigable water from upstream
sources, including groundwater. See Rapanos, 547 U.S. at 743.
Similarly, Congress’s decision to reject amendments that would
have directly regulated groundwater does not bear on whether a
permit is required to add a pollutant to a navigable water
through groundwater. The government does not assert that
groundwater is itself a “water of the United States” or that
25
Gellar-King would be criminally liable for failing to obtain a
permit for the addition of a pollutant to groundwater alone.
Gellar-King asserts that even if the Act itself does not
foreclose the conduit theory, the EPA eliminated any ambiguity
regarding the Act’s coverage of groundwater when the EPA issued
its new rule explicitly excluding groundwater from the
definition of “waters of the United States.” 33 C.F.R.
328.3(b)(5). Gellar-King highlights the EPA’s comment that “the
agencies have never interpreted” groundwater “to be a ‘water of
the United States’ under the CWA.” Clean Water Rule, 80 Fed.
Reg. at 37,073. The government, however, does not assert that
groundwater is a “water of the United States.” Although the EPA
has repeatedly declined to regulate groundwater as a “water of
the United States,” the agency has consistently asserted
authority over groundwater connected to navigable waters. See
Hawai’i Wildlife Fund, 24 F. Supp. 3d at 995-96.
Gellar-King raises concerns that the conduit theory
presents an unworkable rule, which will cause confusion
regarding when a discharge of a pollutant into groundwater
requires a permit. See Oconomowoc, 24 F.3d at 1320. She also
asserts that the conduit rule contravenes Supreme Court
precedent that calls for a narrow reading of the term “waters of
the United States.” See Cape Fear River Watch, Inc., v. Duke
Energy Progress, Inc., 25 F. Supp. 3d 798, 809 (E.D.N.C. 2014)
26
(citing Rapanos, 547 U.S. at 733-34). Reading the Act to require
a permit for an indirect discharge through groundwater to a
navigable water, however, is necessary to carry out the Act’s
purpose: to protect “the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Act
must be read broadly to give effect to this broad purpose. See
Riverside Bayview Homes, 474 U.S. at 132.
Thus, this Court adopts the conduit or hydrological
connection theory and holds that the addition of a pollutant
from a point source to groundwater that is hydrologically
connected to a navigable water is akin to adding that pollutant
from the point source directly to the navigable water. As such,
Gellar-King was properly charged with an offense under 33 U.S.C.
§ 1319(c)(3)(A) with one count of knowing endangerment for the
discharge of a pollutant into “waters of the United States”
without a permit, in violation of 33 U.S.C. § 1311(a).
For these reasons, this Court denies Gellar-King’s motion
to dismiss the indictment against her.
Defendant’s motion to suppress and motion to dismiss the
indictment are denied.
Order dated: January 9, 2015.
27
UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
___________________________________
)
UNITED STATES of America,
)
Appellee,
)
)
v.
)
)
Monica GELLAR-KING,
)
Appellant.
)
___________________________________)
No. ST-15-02
NOTICE OF APPEAL
On June 1, 2015, Appellant Monica Gellar-King was convicted
on one count of knowing endangerment through the illegal
discharge of a pollutant, and was sentenced to ten years in
federal prison. Appellant appeals her conviction on the grounds
that the United States District Court for the Eastern District
of Stone improperly denied both her motion to suppress and her
motion to dismiss her indictment. This Court will consider all
issues raised in the court below.
________________________
Gunther, J., Clerk
September 25, 2015
28