Petition for Writ of Certiorari — South Florida Water Management District v. Miccosukee Tribe of Indians

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No. 02 626 OCT > | 2u02

In The

Supreme Court of the Gnited States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

MICCOSUKEE TRIBE OF INDIANS, et ai.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY S. BISHOP JAMES EDWARD NUTT

MAYER, BROWN, ROWE Counsel of Record

& PLATT SOUTH FLORIDA WATER

190 South LaSalle Street MANAGEMENT DISTRICT

Chicago, IL 60603 3301 Gun Club Road

(312) 701-7829 West Palm Beach, FL 33406

JouN J. FUMERO (561) 682-6253

SHERYL GRIMM WooD Counsel for Petitioner

Scott ALLEN GLAZIER

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT

3301 Gun Club Road

West Palm Beach, FL 33406

(561) 682-6262

QUESTIONS PRESENTED

The South Florida Water Management District

(SFWMD) is the governmental agency that manages an

extensive system of levees and canals throughout populous

south Florida and the Everglades region. For decades it

has pumped public waters to prevent catastrophic flooding

and allocate water supply. For thirty years, the federal and

state agencies responsible for the Clean Water Act’s

National Pollutant Discharge Elimination System

(NPDES) program have considered the SFWMD’s move- —

ment of water to fall outside the scope of the federal

NPDES permit program because nothing is “added” to the

navigable waters from the pumps. The Eleventh Circuit,

in conflict with decisions from other courts of appeals and

without deference to the agencies, concluded that because

the pumped water contains some pollutants that would

not reach the receiving water “but for” the pumping, such

pumping alone constitutes an “addition” of pollutants

requiring an NPDES permit.

The questions presented, which are of great national

importance, are:

1. Whether the pumping of water by a state water

management agency that adds nothing to the water

being pumped constitutes an “addition” of a pollutant

“from” a point source triggering the need for a Na-

tional Pollutant Discharge Elimination System permit

under the Clean Water Act.

2. Whether the court below should have deferred to the

consistent and long-held federal and state agency po-

sition that the SFWMD’s pumping does not constitute

an “addition” that requires a National Pollutant Dis-

charge Elimination System permit.

RULES 29.6 AND 14.1 STATEMENT

Petitioner, South Florida Water Management District, is a

governmental entity of the State of Florida created by

Section 373.069(e), Florida Statutes.

Respondents are the Miccosukee Tribe of Indians of

Florida, a federally recognized Indian tribe, and the

Friends of the Everglades, Inc., a non-profit Florida

corporation.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........................c0ccsseeeeees i

RULES 29.6 AND 14.1 STATEMENT....................... ii

, | Foe Fin, 0 5) ere vi

na rrreecsagennegmnsnnocns 1

creer rrnrrpmnnnenenencnanesonent l

STATUTORY AND REGULATORY PROVISIONS

a ar aterennsennnsnuscasoees l

I, sresmenmuonetes 1

A. The Statutory And Regulatory Scheme... 5

1. Basic Elements Of The Federal

TTI sncccessnssnnssusessssoceseeeee 5

2. State Regulation Of Pollution Caused

By Hydrographic Modifications.......... 6

3. Delegation Of NPDES Administration .-

te renennssansensens 8

B. SFWMD And Its Water Control Facilities.. 8

C. Regulatory Oversight And mamas Of

The S-9 Pump Station ......................0..00 10

D. Respondents’ Citizen Suit Challenge To

The S-9 And The District Courts Ruling. 12

E. The Eleventh Circuit's Decision .............. 13

REASONS FOR GRANTING THE PETITION ......... 14

I. THE COURTS OF APPEALS ARE IN CON-

FLICT AS TO THE APPLICABILITY OF THE

NPDES PROGRAM TO THE MOVEMENT OF

WATER CONTAINING PRE-EXISTING POL-

saan rererencenmepnnnsnsasusceee 14

nj:seabeeecmeameaasianeasciamaaamaataaeaa it aii ee

Il.

TABLE OF CONTENTS - Continued

gg RETIRES, SEN ee 16

C. The Conflict Is Deep And Should Be Im-

mediately Resolved....................cccccceeeeeeee 17

THE ELEVENTH CIRCUIT ERRED IN FIND-

ING THE MOVEMENT OF WATER TO BE AN

ADDITION OF POLLUTANTS FROM A POINT

SOURCE SUBJECT TO THE NPDBEG............... 18

A. The Plain Language Of The CWA

Requires The Point Of Discharge To Be

ESR Oe Be dc 18

B. The NPDES Program Was Intended To

Regulate Only Those Point Sources From

Which Pollutants Originate..................... 20

C. State Non-NPDES Programs Are The

Appropriate Mechanism Under The CWA

To Regulate State Water Management

ree xnasticcemmbcnintiniannantiniinesnteaaasiemmeen 21

THE COURT ERRED IN FAILING TO GIVE

ANY CONSIDERATION, MUCH LESS DEF-

ERENCE, TO THE CONSISTENT AND LONG-

STANDING POSITION OF THE RESPON-

SIBLE FEDERAL AND STATE AGENCIES

GIVEN THE COOPERATIVE FEDERALISM

INTENDED BY THE CWA’S STATUTORY

ae nccnssnssnecesoemenmsnsesmsnenecsinesiinsnnsitibiaitistioses 24

TABLE OF CONTENTS -— Continued

Page

A. The Eleventh Circuit Rejected EPA's

Position On Improper Grounds..........-..--.

B. Under The CWA’s Statutory Scheme,

Deference To The Implementing State

IV. THE PETITION SHOULD BE GRANTED,

NOT HELD, FOR BORDEN RANCH V. U.S.

ARMY CORPS OF ENGINEERS ...........-.--.-.- 29

CONCLUSION .........---:ssceceeeeeeeennenennnnnnnnnennnnsnnnsnncenees

TABLE OF AUTHORITIES

Page

CASES:

American Meat Inst. v. EPA, 526 F.2d 442 (7th Cir.

Sia hnasannencennguetnenmpinpenemnseabidtimniaiindiieusindeinmisuensiments 25

Appalachian Power Co. v. Train, 545 F.2d 1351 (4th

Sy Satie iicnintetcicenrinnitaniaddiminnnsnipentnmmme 3, 13, 15, 20

Arkansas v. Oklahoma EPA, 503 U.S. 91 (1992)....... 4, 5, 27

AT&T Corp. v. lowa Utilities Bd., 525 U.S. 366

EI inicrasersennaiiensieteinanaiintainniatiamaiaiupeatietuptetemmmeniiesiial 27

Attorney's Liability Assurance Society, Inc. uv.

Fitzgerald, 174 F. Supp.2d 619 (W.D. Mich. 2001)........ 28

Bellsouth Telecommunications, Inc. v. MCI Metro

Access Trans. Ser., Inc. 97 F. Supp.2d 1363 (N.D.

Bs I cincricicsiniaetiiin amnesia reneraiideateataininiriaitidiicinnieaainiaae! 27

Borden Ranch v. United States, No. 01-1243 (2002) ...29, 30

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York, 273 F.3d 481 (2nd Cir.

TTIETIEcinssinnitetiaraiientsieasnsdammaiantghitisiasssisapeuainbitiisinasiniiniindieniasiie 3, 14, 16, 17

Dubois v. U.S. Dep't of Ag., 102 F.3d 1273 (1st Cir.

IED cnscescanessussecessensssnenssnavessnansssveseemsensesens 3, 13, 14, 16, 17

EI. du Pont de Nemours and Co. v. Train, 430 U.S.

EEE ee en ee ee eee 25

Environmental Protection Agency v. California ex

rel State Water Resources Control Bd., 426 U.S.

ee ne reer ere eae ne 22

Florida Wildlife Federation v. SFWMD, Case No.

02-809 18-Civ-Middlebrooks (S.D. Fla.) ....................0.... 4

Friends of Everglades v. SFWMD, Case No. 02-

80309-Civ-Middlebrooks (S.D. Fla.) ..............ccccccccccceeeeee 4

Vii

TABLE OF AUTHORITIES — Continued

Page

Froebel v. Meyer, 13 F. Supp.2d 843 (E.D. Wis.

I hsiapneieapmnierenaesie satin temataemanaatatiieasaiataaniatatigmiemaiatamaataneenell 29

GTE South Inc. v. Morrision, 199 F.2d 733 (4th Cir.

STITT ns cheesieadanstiehdhdaeinmaaenmentetasieap tae ites denaeniainbiellitaldiieehicimttattiahictiinasl 27

International Paper Co. v. Ouellette, 479 U.S. 481

II cniseseuntdidtnatetmmninapabdetneieiguieeiiieaueimnenemecaueienl 5, 27

Miccosukee Tribe v. South Florida Water Manage-

ment District, 721 So. 2d 389 (Fla. 3d Dist. Ct.

FD, Fi crunenennsnrmnntaptntnmemnsenaiteitonmmpranianinineenennaties 12

National Wildlife Federation v. Consumers Power

Company, 862 F.2d 580 (6th Cir. 1988).................. passim

National Wildlife Federation v. Gorsuch, Admin.,

U.S. Environmental Protection Agency, 693 F.2d

CK eee passim

Owasso Independent School Dist. v. Falvo, 534 US.

(PTT hcirsstininsssiemnssitiitesiaiitianephpeeminindeniiiiiutiiniatninteedemnnrniental 28

Perry v. Downling, 95 F.3d 231 (2d Cir. 1996)................... 27

P.FZ. Properties, Inc. v. Train, 393 F. Supp. 1370

SI: IEEE ndtsnastntnseiasenecananesitaietiitaiivasieitenitiliaeasttaaiimenelaiell 20

Skidmore v. Swift & Co., 323 U.S. 134 (1944)............. 24, 25

Train v. NRDC, 421 U.S. 60 (1975) .......0.-s0+sseesssessseeeneeeenes 25

United States v. M.C.C. of Fla., Inc., 772 F.2d 1501

SETI TUTTI csscciihdnnssieniabeiaheni peat ieaeniiitghitiemasinimamenaite 30

United States v. Mead, 533 U.S. 218 (2001)................. 24, 25

United States v. South Florida Water Management

District, 28 F.3d 1563 (11th Cir. 1994)...000000000 ee. 11

United States v. South Florida Water Management

District, 847 F. Supp. 1567 (S.D. Fila. 1992).................. 11

Viii

TABLE OF AUTHORITIES - Continued

Page

United States v. South Florida Water Management

District, Case No. 88-1886-Civ-Hoeveler (U.S.

es a NITE TUN ieidcreitietesiceindiiiinilasidaiaiasiiaittin eat 11

United States v. Sinclair Oil Co., 767 F. Supp. 200

EDs SINIUTEIE cissecpccieieicsintinnesateientnentntinsasiesininiiallenitesinithidaniastisinasten 30

US West Communications Inc. v. Public Serv.

Comm of Utah, 75 F. Supp.2d 1284 (D. Utah

iia hitrrinsivsticenssennncusinmssguenniimeanppinnindaauendanisitunincciammpemnent 27

STATUTES & REGULATIONS:

ee ae IE silhiiseistictinincenesnitsinneciiintesetinuibaiinieniauaiiadaesiibisinnn 1

aa ir ee crsdiniesticteibcencoenaiineniecisiaicincapatecitahientaitiineniatsiaenigiiaiiiaie 20

a ccs icirsinncinttinesniniaitedininacina beetle 20

es Oe EE crcsiicncstemncsnensvemncninninesnsensmnnnaniestniiel 5, 8, 27

a I ciuiieiiceiniitieniaihiatieiarraiighdeienitiaciiceiaiiaiataaiiea 5, 21

Se iP Sonn Uhcsicciseentinseuiasaioniieinticietdecnatilnimpibuibeiiiiaitaiiniinmnelit 6

IED: UF SIE assinnsibcstnninigtnndtiinnnendinndeitisibiniamemniiaimantl 2, 18

Sans Ur TTTTITncrisrstcceidehiensinditiehdnipentinapeteiieninsadapalidiiasiniadiannnedtniis 5

iain areretenceiamneitsittaramiatiininiiesiniiiaiadll 22

Ey UF ET icsiiirsienesitninciennenanensennsinnsiniinininiiiiiaiiiints 5, 6, 21

ey Oy St cinuicnsiseicsicicsnctinntsinnnsenintnannnnisitiinsmiis 5, 6, 21

SE ES Cir SIIITTIharreiesintitdciiuiitsanaeniiieitiaiaisiiieinabantiniitnidastaniiimcaaass 19

33 U.S.C. § 1ISIA(FMQMK)...........ceesseecessreceseerees 7, 19, 23, 26

er ET Ut GIT arieresinieicinscticietinmtciieitieasinitabinieisabisibieibiaiiuad 5, 6, 21

SP EE OF tee bcnisnccectienicscnsntnsionsniscnncsintinniniiéaimesininseel 5, 29

TABLE OF AUTHORITIES — Continued

Page

a icin racine nine amt dennnreinanrneiliataes 8

Ee 27

a ceaemeall 29, 30

ee sssseaesiiandamasiiaaiesliiad 19

SE tI os ninrteretespnpeusnsuensuinnemmeabianiitl 2,5, 18

i canine ariatainiatiaatiaiammaneinnnabes 2

Be I iF TnI sitnerenesincmnssunnensetnpeseusanentemsvennsenenenemeenntes 5

I Se creer E ETT 7,19

een 5

ITE SR TET 8

catalan caimeniai 4

aceasta 8

EE ee ene eee ETT 8

I i es )

NE EE NO OEE 4

II, HITTIN, TTI so senaasi ere ertneriinrentennpeneninnennndennsnetnnts 9

TI TIT ens crintaricunaaintninetannmenaninimminendiel 12

SAEED, DUEL EID, cnencnicnspedenmenniisenmtennesnmneneseatsens 12

§ 373.4592(9\(1), Fla. Stat. ............:ccccscccceseeseeeeeeeees acide 12

Een ane ane ae 12

ITI TITIII TITIITL arcs ricerinienndaaeianmagnaneuegnenniinemnat i)

KS EET eee ee eR s

Fla. Admin. Code, Ch. 62-620.200 .............ccccccccccseeseeeeeseeees 5

TABLE OF AUTHORITIES -— Continued

Page

MISCELLANEOUS:

EPA, The Control of Pollution Caused by Hydro-

graphic Modifications (19738) ...........cccccccccceceeeeeeeeseeees 7,19

Flood Control Act of 1948 § 203, 62 Stat. 1176 «0.0.0.0... 9

H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 109

SESS EATER ere are eect a et Re a 7

1 Legislative History of the Water Pollution Control

Act Amendments of 1972 (Committee Print com-

piled for the Senate Committee on Public Works

by the library of Congress), Ser. No. 93-1......................5 7

3 Legislative History of the Clean Water Act of

1977, A Continuation of the Legislative History

of the Federal Water Pollution Control Act, Ser.

National Pollutant Discharge Elimination System

Memorandum of Agreement between the State of

Florida and the United States Environmental

NE i cntsnccceneenscnscietenismetiicsuincinmediimmenden 8

S. Rep. No. 370, 95th Cong., 1, Sess. 8-9, 1977 ..............0000. 6

Water Resources Development Act of 1996, § 528,

eens SU IEE iesehesicniiinsiibabinatatieecheniendiiiiaahig leicht nti 9

Water Resource Development Act of 1996, § 528(b),

Si teenie aah eats 11

Water Resource Development Act of 1996, § 528(f),

Sats MTU catchall li 11

Water Resource Development Act of 1996,

I I 11

Water Resources Development Act of 2000, Title VI,

ER eee 9

TABLE OF AUTHORITIES — Continued

Page

Water Resources Development Act of 2000, Title VI,

ITT ioc tsa daannaeniapananinaibeaieinaianntion 10

WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE

UNABRIDGED (Encycl. Ed. 1977)...............ccccceseeeeeeeeees 6,19

P. WEISER, Chevron, Cooperative Federalism, and

Telecommunications Reform, 52 Vand. L.Rev. 1

ESSE eee nee RE ean enor a nuNE SUDA NDE DOCU 27, 28

PETITION FOR WRIT OF CERTIORARI

Petitioner South Florida Water Management District

(SFWMD) respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-14a)

is reported at 280 F.3d 1364. The opinion of the district

court (App., infra, 15a-30a) is unofficially reported at 1999

WL 33494862 and 49 ERC 2065. The district court’s final

summary judgment (App., infra, 3la-32a) is unreported.

The court of appeals order denying rehearing and rehearing

en banc (App., infra, 33a-34a) is unreported.

JURISDICTION

The opinion of the court of appeals was entered on

February 1, 2002. Petitioner’s motion for rehearing and

rehearing en banc was denied June 21, 2002. On August

29, 2002, Justice Kennedy extended the time for filing the

petition for certiorari to and including October 21, 2002.

App., infra, 35a-36a. Jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The statutory and regulatory provisions pertinent to

this case are set forth at App., infra, 37a-42a.

STATEMENT

The fundamental issue in this case is whether a state

water management agency may pump water, to which it

adds nothing, from one side of a levee to the other without

the need for a federal National Pollutant Discharge

Elimination System (“NPDES”) permit or, conversely,

whether the Clean Water Act (“CWA”) NPDES program

reaches such traditionally local water management activi-

- ties. To regulate local water management under the

federal program designed to eliminate waste discharges

fundamentally alters the CWA’s statutory scheme.

A NPDES permit is required under the CWA only for

those activities that add pollutants to the navigable waters

from a point source.’ See 33 U.S.C. §§ 1311 & 1362(12). The

Eleventh Circuit, despite acknowledging that SFWMD does

not increase the amount of pollutants in the navigable

waters, concluded that because the pumped water contains

some pollutants that would not reach the receiving water

“but for” the pumping, the pumping constitutes an “addi-

tion” of pollutants to the navigable waters “from” a point

source and, therefore, that the SFWMD must obtain a

NPDES permit under the CWA.

The Eleventh Circuit’s expansive interpretation of

NPDES jurisdiction increases an already sharp conflict

among the courts of appeals and ignores the position of the

responsible federal and state agencies that no permit is

required. The District of Columbia and Sixth Circuits

adopted the position of the Environmental Protection

Agency (“EPA”) that an “addition” “from” a point source

occurs only if the point source itself physically introduces a

pollutant into the water from the outside world and that

the transfer of pre-existing pollutants from one water body

to another is not the “addition” of a pollutant to the receiv-

ing water body “from” the point source. National Wildlife

' A “point source” is broadly defined as “any discernible, confined

and discrete conveyance, including but not limited to any pipe, ditch,

channel, tunnel, conduit *** from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14). This case involves the terms

“addition” and “from” used by Congress to delineate the scope of

NPDES. See 33 U.S.C. § 1362(12).

Federation v. Consumers Power Company, 862 F.2d 580,

581 (6th Cir. 1988); National Wildlife Federation uv.

Gorsuch, Admin., U.S. Environmental Protection Agency,

693 F.2d 156, 179 (D.C. Cir. 1982). The Fourth Circuit held

that “those constituents occurring naturally in the water-

way or occurring as the result of other industrial dis-

charges do not constitute an addition of pollutants by a

plant through which they pass,” concluding that it is

beyond EPA’s authority to require a plant through which

pre-existing pollutants pass to treat or reduce them.

Appalachian Power Co. v. Train, 545 F.2d 1351, 1377 (4th

Cir. 1975).

The First and Second Circuits, in contrast, rejected

the agencies’ interpretation and found an “addition” in the

transfer of pre-existing pollutants between wholly sepa-

rate, naturally distinct water bodies despite nothing being

added to the transferred waters. Dubois v. U.S. Dep't of

Ag., 102 F.3d 1273 (1st Cir. 1996) and Catskill Mountains

Chapter of Trout Unlimited, Inc. v. City of New York, 273

F.3d 481 (2nd Cir. 2001). The Eleventh Circuit in this case

further expanded the NPDES to regulate the states’

management of surface waters within a naturally singular

water body (separated only by manmade levees) by pumps

from which no pollutants originate.

The Eleventh Circuit’s ruling is legally erroneous. The

notion that pumping water, without adding anything to

the water being pumped, constitutes the “addition” of

pollutants is inconsistent with the plain language, legisla-

tive history and purposes of the CWA. The Eleventh

Circuit also erred in refusing to give any deference to the

reasonable and longstanding interpretation of the “addi-

tion” requirement by the responsible agencies.

Given (1) the deep divide among the circuits, (2) the

Eleventh Circuit’s failure to acknowledge the consistent

position of the federal and state agencies that are together

responsible for implementing the CWA, (3) the critical role

that states play in managing water throughout the nation,

and (4) the nationwide importance of effectuating the

balance intended by the CWA between federal and state

regulatory programs to resolve water quality and quantity

issues, it is time for this Court to address the questions

presented.

It is especially appropriate and necessary to review

the extension of NPDES jurisdiction in this case. So

expansive is the Eleventh Circuit’s ruling that it is diffi-

cult to imagine any significant state or municipal surface

water management system that would not require federal

permitting. Congress did not intend to federalize regula-

tion of local water management activities when it adopted

the CWA. When it set out to eliminate industrial and

municipal waste discharges into the nation’s waters,

Congress did not envision that the states’ pumping of

water from one side of a levee to the other — a traditional

water management activity — would require a state to

obtain a federal permit for the “discharge” of “pollutants”

into the navigable waters from a “point source.”

The situation here is particularly urgent. The subject

pump station is but one of 391 water control structures

and hundreds of miles of canals and levees that make the

U.S. Army Corps of Engineer’s Central & Southern Florida

Flood Control Project (C&SFFCP) for which the SFWMD

is the local sponsor. The unfounded application of NPDES

permitting to the C&SFFCP threatens to impede local

control of water management and land use decisions and

to divert scarce resources from a joint federal and state

eight billion-dollar, multi-agency effort to re-plumb the

C&SFFCP project to restore the Florida Everglades and

develop south Florida’s water resources. Additional notices

of intent to sue now threaten unprecedented litigation

against eleven more pump stations. Two additional

NPDES lawsuits have been filed against other C&SFFCP

water control structures. See Friends of Everglades v.

SFWMD, Case No. 02-80309-Civ-Middlebrooks (S.D. Fla.);

Florida Wildlife Federation v. SFWMD, Case No. 02-

80918-Civ-Middlebrooks (S.D. Fla.).

A. The Statutory And Regulatory Scheme.

The CWA envisions a close regulatory partnership

between the state and federal governments to restore and

maintain the chemical, physical and biological integrity of

the Nations’ waters. Arkansas v. Oklahoma EPA, 503 U.S.

91, 101 (1992); International Paper Co. v. Ouellette, 479

U.S. 481, 489 (1987). In creating this scheme, Congress

struck a careful balance among competing policies and

interests. Jd. The CWA relies heavily upon the states to

maintain primary responsibility to prevent, reduce and

eliminate pollution, to plan the development and use of

land and water resources, and to consult with the Envi-

ronmental Protection Agency. 33 U.S.C. §§ 1251(b),

1313(d) & (e), and 1329. Congress did not want to interfere

any more than necessary with state water management.

33 U.S.C. § 1251(g); Gorsuch, 693 F.2d at 178. Thus, CWA’s

cooperative federalism scheme was predicated upon the

value of local input and experimentation. The issue is not

whether the SFWMD can avoid regulation, but rather how

the participating agencies regulate the pumping induced

water quality changes at issue here within the framework

of the CWA.

1. Basic Elements Of The Federal NPDES

Permit Program.

Section 402 of the CWA created the NPDES program,

which gives EPA regulatory authority to eliminate the

discharge of industrial and municipal wastes into the

nation’s waters. See 33 U.S.C. § 1342; Gorsuch, 693 F.2d at

175. Section 301(a) of the CWA generally prohibits the

discharge of any effluent into a navigable body of water

unless the point source has obtained a NPDES permit. 33

U.S.C. § 1311(a); Arkansas, 503 U.S. at 102.

A “discharge” is defined as “any addition of any

pollutant to navigable waters from any point source.” 33

U.S.C. § 1362(12) & (16); 40 C.F.R. § 122.2; Fla. Admin.

———

Code, Ch. 62-620.200. Thus, under the statute’s plain text

a NPDES permit is only required where there is an “addi-

tion” of a pollutant “from” a point source. To “add” is “to

join or u”**e so as to increase the number, size, quantity,

etc.” Wins"eR’s DICTIONARY OF THE ENGLISH LANGUAGE

UNABRIDGED (Encycl. Ed. 1977).

2. State Regulation Of Pollution Caused By

Hydrographic Modifications.

Congress has left the regulation of nonpoint sources

up to the states under Section 319. See 33 U.S.C. § 1329.

Nonpoint source pollution is broadly defined by exclusion

to be those water quality problems not subject to the

Section 402 NPDES program. Gorsuch, 693 F.2d at 166.

The states are directed to take steps to address nonpoint

source pollution, but left to determine for themselves the

nature of those steps. 33 U.S.C. §§ 1313(d) & (e) & 1329.

In 1972, the Congress made a clear and precise

distinction between point sources, which would

be subject to direct Federal regulation, and non-

point sources, control of which was specifically

reserved to State and local governments through

[the state] process * * * judging that those mat-

ters were appropriately left to the level of gov-

ernment closest to the sources of the problem.

S.Rep.No. 370, 95th Cong., 1, Sess. 8-9, 1977; reprinted 3

Legislative History of the Clean Water Act of 1977, A

Continuation of the Legislature History of the Federal

Water Pollution Control Act 642-43, Ser. No. 95-14; 1977

U.S. Code Cong. & Ad. News, 4326, 4334-35.

* * Section 208 (33 U.S.C. § 1288) referred to in Gorsuch and the

legislative history has been in practice succeeded by Section 319 (33

U.S.C. § 1329), both establishing the mechanisms through which the

states are to establish processes to regulate nonpoint source pollution.

In the nonpoint source part of the CWA, Congress

explicitly contemplates that pollution’ caused by changes

to the movement, flow or circulation of any navigable

water, including changes caused by the construction of

dams, levees, channels, causeways, or flow diversion

facilities, will be controlled by the states under nonpoint

source procedures and methods develop with guidance

from EPA. 33 U.S.C. § 1314(f(2\F); See EPA, The Control

of Pollution Caused by Hydrographic Modifications (1973);

Consumers Power, 862 F.2d at 588. The legislative history

confirms that Congress intended pollution caused by

changes to the flow of water to be treated under nonpoint

source programs:

The committee . . . expects [EPA] to be most dili-

gent in gathering and distribution of the guide-

lines for identification of nonpoint sources and

the information on processes, procedures, and

methods for control of pollution from such non-

point sources as ... natural and man-made

changes in the normal flow of surface and ground

waters.

H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 109 (1971),

reprinted 1 Legislative History of the Water Pollution

Control Act Amendments of 1972 at 796 (Committee Print

compiled for the Senate Committee on Public Works by the

Library of Congress), Ser. No. 93-1. (emphasis supplied).

* The term “pollution” as distinguished from a “pollutant” is more

broadly defined to “mean the man-made or man-induced alteration of

the chemical, physical, biological, and radiological integrity of water.”

Section 502(19), 33 U.S.C. § 1362(19)

3. Delegation Of NPDES Administration To

The State.

The CWA contemplates that states will implement the

NPDES permit program established under Section 402 of

the CWA. 33 U.S.C. § 1251(b). Section 402 establishes the

NPDES permitting regime, which provides for the states

to administer the NPDES permit program for discharges

into navigable waters within their jurisdiction. 33 U.S.C.

§ 1342(b). The Florida legislature, in turn, has expressly

authorized its Department of Environmental Protection

(“DEP”) to assume responsibility for implementing the

NPDES program in Florida. § 403.0885, Fla. Stat.

Pursuant to these statutes, EPA and DEP entered into

a Memorandum of Agreement by which EPA has author-

ized DEP to implement the federal NPDES program in

Florida. See National Pollutant Discharge Elimination

System Memorandum of Agreement between the State of

Florida and the United States Environmental Protection

Agency (1995). The memorandum of agreement creates a

close partnership under which DEP is given primary ©

responsibility to establish the State NPDES program

priorities which are consistent with national NPDES goals

and objectives with oversight by EPA. Id.

B. SFWMD And Its Water Control Facilities.

The SFWMD is one of five water management dis-

tricts established to provide stewardship over Florida’s

public water resources. § 373.069, Fla. Stat. Under DEP’s

supervision the SFWMD’s nine-member board establishes

and implements the state’s water policies throughout its

16 county jurisdiction from Orlando to Key West. See

$§ 373.069 e), 373.073 & 373.016, Fla. Stat.

Florida’s water management districts are drawn along

hydrological, not political, lines to best manage water on a

regional, watershed basis. § 373.069, Fla. Stat. SFWMD is

responsible for the Lake Okeechobee watershed, an

immense, integrated and unique system of hydrologically

connected lakes, rivers, bays and surface waters. See /d.;

§ 373.4595, Fla. Stat. Within this watershed lie populous

municipalities, vast agricultural communities, and pre-

cious natural] resources, including Florida’s Everglades.

The watershed is managed by the U.S. Army Corps of

Engineers’ Central & Southern Florida Flood Control

Project (C&SFFCP), for which the SFWMD is the local

sponsor. § 373.1501, Fla. Stat. The C&SFFCP is a complex

system of levees, canals, and flow diversion facilities used

to control the movement, flow and circulation of water.

The C&SFFCP was authorized by § 203 of the Flood

Control Act of 1948 (62 Stat. 1176), in response to catas-

trophic loss of life and property following two major

hurricanes in the late 1920's. Today the C&SFFCP is

operated by the SFWMD, under Corps guidelines and

regulatory schedules, to allocate a strained water supply

and provide vital flood protection.

As local sponsor. the SFWMD is charged with imple-

menting the federal government’s ongoing comprehensive

review (“Restudy”) of the C&SFFCP to restore the Ever-

glades ecosystem. § 373.1501(1)(h) & (2), Fla. Stat. The

Restudy has evolved into the Comprehensive Everglades

Restoration Plan (“CERP”), an eight billion-doliar joint

federal and state effort to re-plumb the C&SFFCP to

restore the everglades while accommodating the region’s

competing urban and agricultural interests. See Water

Resources Development Act of 1996 § 528, PL. 104-303

(“WRDA ’96”); WRDA 2000, Title VI, $601 PL. 106-541

(“WRDA ’00”).

This case involves the S-9 pump station, which is one

of 62 pump stations that move water through the canals

and levees of the C&SFFCP. See App., infra, 2a. The S-9 is

located at the juncture of the C-11 canal and the L-37 and

L-33 levees. See id. at 3a. The L-37 levee extends north

and the L-33 extends south from the S-9, creating an

impoundment area to the west known as Water Conserva-

tion Area 3A (“WCA 3A”). Id. The WCA 3A encompasses

over 491,000 acres of historic Everglades. The S-9 moves

water through the canal from east to west, one side of the

levees to the other, to control quantities of water in the C-

11 west basin. See id. The C-11 west basin is over 48,000

acres with a population over 135,000. As part of the

Comprehensive Everglades Restoration, Congress author-

ized $225 million for two projects that address water

quality problems resulting from the S-9 pumping, i.e., the

WCA 3A/3B Levee Seepage Management project and the

C-11 Impoundment and Stormwater Treatment Area.

WRDA ’00, § 601(b)(2\(C).

The SFWMD’s structures, including S-9, add nothing

to the waters they manage. App., infra, 3a. They are

merely tools used to move water and determine the quan-

tity of water in different parts of the system. Without the

levee system, the managed waters would naturally flow

together as a sheet across south Florida. App., infra, 3a

n.2 & 8a n8. The pre-existing pollutants within the

managed waters are naturally occurring or were added

from other sources upstream of the levees. Id. at 3a. The

C&SFFCP is the primary water system which receives

polluted waters from all other point and nonpoint sources

throughout its jurisdiction. Most pollutants are received

from the numerous municipalities, secondary drainage

districts, and others that drain water into the larger

C&SFFCP system.

C. Regulatory Oversight And Permitting Of The

S-9 Pump Station.

The C&SFFCP remains one of the most scrutinized

water programs in the nation due to federal and state

efforts to restore the Everglades while accommodating

competing urban and agricultural needs. Through both

litigation and legislation, the federal and state govern-

ments have jointly developed strategies and non-NPDES

permit programs for those C&SFFCP structures that

impact the Everglades area, including the S-9 pumping to

the WCA-3A.

In 1988, the federal government sued several Florida

agencies to prevent polluted water from entering Ever-

glades National Park and Loxahatchee Refuge through the

C&SFFCP. United States v. South Florida Water Manage-

ment District, Case No. 88-1886-Civ-Hoeveler (U.S. Dist.

Ct. S.D. Fla) (“USA lawsuit”). The USA lawsuit was settled

in 1992 by consent decree. United States v. SFWMD, 847

F. Supp. 1567 (S.D. Fla. 1992), rev'd on other grounds, 28

F.3d 1563 (11th Cir. 1994). The consent decree established

an ambitious strategy to restore and preserve the Ever-

glades ecosystem. 847 F. Supp. at 1569. It required strate-

gies designed to bring water entering the Everglades and

Loxahatchee refuge into compliance with applicable water

quality standards, including the development of a permit-

ting system for discharges into waters managed by the

District. Jd. EPA and other federal agencies approved the

consent decree. Jd. at 1577.

Also in 1993, the South Florida Ecosystem Restora-

tion Task Force (“Task Force”) was created by interagency

agreement between the federal agencies, including EPA

and the Corps, to oversee all aspects of Everglades resto-

ration. By 1996, the Task Force was codified and expanded

to include state, local and tribal representatives. WRDA

96 § 528(f). Task Force members include SFWMD, DEP

and Respondent Miccosukee Tribe. Jd. The Task Force

oversees all activities of the C&SFFCP’s Restudy and is

specifically directed by Congress to develop a comprehen-

sive plan to restore, preserve and protect the Everglades

and its water quality. Jd. § 528(b). The Task Force requires

EPA to oversee the efforts of DEP and the SFWMD to

improve water quality within the C&SFFCP, including of

course S-9 and WCA-3A. Id. § 528(f)(2).

-In 1994, the Florida legislature adopted the Ever-

glades Forever Act (“EFA”) to implement the Consent

phosphorus and other pollutants.'’ The Florida legislature

has directed a distinct numeric criterion for phosphorus for

the Everglades Protection Area, Section 373.4592(4)(e)(2),

which is not directed for other waters such as the C-11 Canal.

While the C-11 Basin may have been hydrologically

connected to the Everglades Protection Area at some historic

time, the C-11 Canal is man-made, dug out for drainage, and

its surface waters do not flow into the upgradient receiving

waters. While the C-11 Canal is a navigable water of the

United States, its backpumping is not natural flow.

Petitioner's backpumping, moreover, is causing long-term

damage in the water quality of the receiving waters. See, e.g.,

J. App. at 38-39, 135-36, 154-56, 164-69. The discharge of

pollutants, including phosphorus at levels higher than those

of the receiving waters, alters the quality of these waters and

causes “pollution” as defined in the CWA. Fidelity, 325 F.3d

at 1162 (citing PUD No. /, 511 U.S. at 705). Altering the

quality of the receiving waters, by backpumping polluted

water into it, is not beneficial to those waters. It is also a

clear example of an activity that requires an NPDES permit.

Finally, Section 101(g) directs federal agencies to

develop water quality programs “in concert with” programs

to manage water resources: “Federal agencies shall co-operate

with State and local agencies to develop comprehensive

solutions ¢ to prevent, reduce and eliminate pollution in concert

17. Both the State and the EPA have formally determined

pursuant to Section 303(d)(1)(A) aa the WCA 3A is failing to meet

its designated uses. See 33 U.S.C. § 1313(d)(1)(A). The Section

303(d) list identifies the water susie limited segments of every

Florida water body. See Sierra Club v. Meiburg, 296 F.3d 1021, 1025

(11th Cir. 2002). Pumping massive quantities of polluted water into

an already polluted section of the Everglades is irreconcilable with

the CWA’s requirement that pollution that impairs designated uses

be eliminated.

with programs for managing water resources.” If water supply

transfers may be made without notice to, or review or

regulation by, State NPDES permit-writers, then water

management programs can override NPDES programs,

contrary to Section 101(g)’s explicit directive that the two

types of programs operate “in concert.” See, e.g., PUD

No. 1, 511 U.S. at 704 (explaining the distinct roles of the

federal and state governments and referring to state water

quality standards as providing a supplementary basis “so that

numerous point sources, despite individual compliance with

effluent limitations, may be further regulated to prevent water

quality from falling below acceptable levels.”) (citing

California, 426 U.S. at 205).

D. The Rule Of Lenity Has No Application Here

Petitioner's argument that the criminal penalties of

33 U.S.C. §$§ 1319(c)(1) and (2) require the CWA to be Strictly

construed is mistaken. The Petitioner cites two cases in w hich

this Court has applied the rule of lenity in “a civil setting.”

However, in both cases the United States government was a

party seeking the civil application of a statute which had

“criminal applications that carried no additional requirement

of willfulness.” See, e.g., United States v. Thompson/Center

Arms Company, 504 U.S. 505, 517-18 (1992) (criminal tax

Statute); Crandon vy. United States, 494 U.S. 152. 158 (1990)

(criminal statute prohibiting private compensation for

government employees). This civil suit was brought by

private parties under the CWA, which carries criminal

penalties but only if the 7 scienter requirements are

met. Compare 33 U.S.C. § 1319(d) (strict liability for civil

claims) with 33 U.S.C. 5 1319(c) (criminal penalties for

negligent or knowing violations). Thus, there is no precedent

or basis for applying the rule of lenity in this context.

Even assuming the rule of lenity could apply in this civil

suit, it “applies only when, after consulting traditional canons

of statutory construction, we are left with an ambiguous

statute.” United States v. Shabani, 513 U.S. 10, 17 (1994).

The rule could have no application here because the plain

language, purpose, structure and history of the Act

unambiguously show that a permit is required for the

discharge of pollutants from the S-9 point source.

Ill. REQUIRING AN NPDES PERMIT FOR THE S-9

STRUCTURE PROMOTES FEDERALISM AND

DOES NOT CREATE AN UNDUE BURDEN UPON

WATER SUPPLY DISTRICTS OR EVERGLADES

RESTORATION

A proper federalism balance is fully maintained by

implementing the plain meaning of the CWA; and the

principles of this case do not create an undue burden upon

water supply districts or the Everglades restoration project.

A. The CWA’s Permit Requirements in This Case

Are Consistent with Principles of Federalism and

Do Not Interfere with “Traditional Powers” of

the States

Enforcement of the CWA’s NPDES permit provisions

does not raise any federalism concerns because the provisions

of the statute carefully balance these two interests. See PUD

No. 1, 511 U.S. at 704 (the CWA establishes distinct roles:

EPA is required, among other things, to establish and enforce

technology-based limitations on “individual discharges” into

the country’s navigable waters from point sources, and the

States are required, subject to federal approval, to establish

comprehensive water quality standards). The permitting

program provides a regulatory partnership between the state

and federal government, see Ouellette, 479 U.S. at 490. and

recognizes the important role of the states, but requires

federal supervision as a result of the states” prior failures at

self-regulation. See 118 Cong. Rec. 10,203, 10,251 (1972).

What Petitioner is requesting from this Court is to

interfere with that careful balance. distort the plain meaning

of the definitions and create new exemptions. Although

NPDES permits contain restrictions on discharges under the

provisions of the CWA, the state decides in the first instance

the contents of these restrictions. See 33 U.S.C. § 1342(a);

40 C.F.R. § 122.44(a). Permits allow discharges and do

not prevent Petitioner from continuing to develop a

comprehensive plan for water management. Nothing in any

of the federal acts cited by Petitioner displaces the clear

requirements of the CWA. Indeed, they expressly require

compliance with any applicable federal law. See WRDA 2000

§ 601(1)(3) (“Nothing in the agreement established under this

subsection shall alter or amend any existing federal or state

law, or the responsibility of any party to the agreement to

comply with any federal or state law.”); WRDA 1996

§ 528(b)(4)(B) (requiring compliance with “any applicable

federal law”). Nor would a single state permit, which is not

subject to EPA oversight, substitute for the NPDES permit

requirements of the CWA. If an NPDES permit is required,

that is the type of permit that must be obtained.

Moreover, Petitioner's exaggerated claims that this case

will violate existing federalism arrangements if an NPDES

permit is required for the S-9 pump station is contradicted

by the fact that the major components of Everglades

restoration in the Everglades Construction Project are already

under the NPDES permitting program. EPA first required

Florida to obtain an NPDES permit for an Everglades

restoration project in 1994 (before the State had CWA

delegation). See, e.g., EPA Permit No. FL0043885

(authorizing discharges from the Everglades Nutrient

Removal Project to receiving waters at the L-7 canal in WCA

1). Petitioner has been applying for, and receiving Everglades

NPDES permits at the very same time it is telling the courts

that NPDES permits are unworkable for Everglades

restoration. The Petitioner received NPDES permits for the

STA (stormwater treatment areas), projects which authorize

the discharge of treated waters. See, e.g., NPDES Permit No.

FL-0177946; (STA-2) FL-0177954 (STA-5); FL-0177962

(STA-1 west); Drew Dep. at 43-44. It wouid be a

contradiction indeed to require NPDES permits for discharges

from the storm treatment areas but to excuse them for the

discharges from the S-9 pump station. Such contradiction is

not found in the CWA.

B. The CWA’s Permit Requirements In This Case

Do Not Impose An Undue Burden Upon Water

Supply Districts Or Upon The Everglades

Restoration Project

A proper analysis of the legal principles supporting the

NPDES permit requirement in this case demonstrates that

these principles would not impose an undue burden on water

supply projects or upon the Everglades restoration effort

itself. Despite the doomsday scenarios of the Petitioner and

amici, the burden is not significant for several reasons:

(1) the common dam structures which are significant

components of water-supply projects are not covered by the

principles of this case; (2) structures which release or

eventually allow flow in the direction of natural flow are not

covered by the principles of this case; (3) EPA can use

guidance and rulemaking to clarify other areas of

non-application (e.g., substances in water which are not listed

as statutory pollutants may be excluded as “pollutants” by

rule if not leading to “pollution” as statutorily defined):

(4) the few remaining areas of NPDES application under the

principles of this case present no significant problems

because the burden can be eased through permitting

provisions, such as general or nationwide permits and single

system-wide permits, and discharges are not likely to violate

Water quality standards in any event due to the designated

use of the receiving water body; and (5) Everglades

restoration will be aided because most restoration

components already are required to obtain NPDES permits

and such permits provide a necessary backstop to ensure that

Water quality goals are achieved.

1. Petitioner and amici make the totally unsubstantiated

claim that water allocation dams, not at issue here, will be

covered by the principles of this case. Petitioner asserts that

the EPA position in Gorsuch — that water quality effects of

flows from a dam were not a discharge from a point source

— will be overruled if the Court requires a permit for the

S-9 pump station. However, as discussed previously,

requiring a permit here is not at odds with Gorsuch or with

EPA’s informal position there that the dam releases were not

“additions” under the CWA. This case deals with classic

external pollutants, taken into the point source and discharged

from it against the natural flow, so that these external

pollutants would not have entered the receiv ing water body

without the affirmative pumping of the point source. Gorsuch

concerned temperature changes, oxidation, etc., caused by

the changed movement of the dammed water, which is an

entirely different situation. And Consumers Power, another

_ so-called “dam case,” returned the water to the same place

from which it was drawn. This is likewise simply not the

circumstance here.

2. The principles of this case will not require NPDES

permits for the various water supply structures which store,

release or eventually allow water to flow in the direction of

natural flow. This is because, in order to require a permit,

the point source must introduce the pollutant into navigable

water from any place outside the particular water body to

which pollutants are introduced. See Pet. App. 5a-9a; Carskill,

273 F.3d at 491-92. If the pollutants were naturally flowing

into receiving waters in any event, then a point source is not

the “instrumentality” or “cause” or “reason” of additianal

pollutants in the receiving waters; and the point source

likewise does not affect “an increase in numbers, size, or

quantity” of pollutants in the receiving waters.

3. In any event, sound statutory interpretation and the

EPA administrative implementation would still prevent

unnecessary permitting. For example, EPA could use its

guidance and rulemaking powers to address the issues

associated with discharges against natural flow of substances,

which are not listed in the statutory definition of “pollutants.”

If a material or substance is listed in the Statutory CWA

definition of pollutant, 33 U.S.C. § 1362(6), of course its

discharge requires a permit. But the major concern of water

supply districts is with substances in water which someone

might consider to be “pollutants” but which are not itemized

in the statutory definition. In some, or perhaps many

instances, these potential “pollutants” may not be harmful

either to the contributing water or to the receiving water.

While these are clearly not the facts herein, many amici have

been misled nonetheless into thinking that the principles of

this case would require NPDES permits in all such

circumstances but this is not a foregone conclusion.

Statutory interpretation and/or EPA rulemaking can

address these issues, which are not before the Court in this

Case, in other ways as well. For example, EPA might

determine that materials or substances not itemized as

statutory pollutants need not be classified as “pollutants” if

they do not result in “pollution” as statutorily defined (". . .

alteration of the chemical. physical, biological, and

radiological integrity of the water”). 33 U.S.C. § 1362(19).

Likewise, EPA might structure rules based upon whether

waters are moved within the same designated uses or water

quality standards.

4. Even when an NPDES permit is required, water

supply districts could still be permitted through the use of

general or nationwide permits and single system-wide

permits. See, e.g, 40 C.F.R. 122.28. 123.25. Furthermore,

permits in most instances would be readily available because

releases of water from and to water supply reservoirs and

the like are almost certain to meet applicable state water

quality standards, which are based on preserving the

designated use of the receiving water body.'* Water moved

18. The amicus briefs from the western states assert that the

Vast water collection and distribution networks contain clean water

and do not contribute to water quality violations but nonetheless

would be required by the decision below to apply for several

hundred NPDES permits, Amicus brief of the states of Colorado

etal.,atp. 3n.2, or perhaps even millions of permits, Brief of Amici

Curiae The Nationwide Public Projects Coalition, et al., at p. 9-10

Colorado, the lead state of eleven Western state amici, asserts that

only 4.6 percent of its waters are designated under CWA section

(Cont'd)

for water supply purposes through water supply canals and

reservoirs, all of which have been designated by the state for

water supply use, will almost by definition meet applicable

water quality standards. This is not the case here. Instead a

drainage canal, utilized for the main purpose of disposing of

surface water containing high levels of pollutants, is be .ig

backpumped into the Everglades conservation areas without

any controls on the quantity and type of water pollutants being

discharged.

5. The claim that Everglades restoration will be impaired

by the requirement for a permit here, is belied by the current

application of NPDES requirements, and the issuance of

NPDES permits, to many of the new Everglades restoration

structures (discussed previously). In fact, NPDES permitting

Serves not as a hinderance but instead as a vital backstop to

prevent backsliding from Everglades restoration.

For example, in 2002 the S-9 pump station itself was slated

for water quality clean-up by 2005. See Tribe’s App. at 4a.

But by 2003 the District had dropped this cleanup deadline

(see Tribe’s App. Sa), due to the expectation that the Florida

Legislature would eliminate the 2006 deadline (which the

Legislature changed to 2016 in general, and to 2036 for the

C-11 Basin by approving a Long Term Plan extending C-11

(Cont'd)

303(d) because of failure to meet water quality standards. It further

contends that “[t}here is no evidence that transbasin diversions/

deliveries are the cause of any of these impairments.” Amicus

Colorado at p. 3 n.2. If it is in fact true that the water transport systems

of the Western states do not create discharges that contribute to a

violation of a water quality standard in the receiving water, the

affirmance of the decision below will not impose a hardship on them.

Colorado and the Western amici should, therefore, have no fear of

NPDES permitting.

compliance). See previous discussion and section

373.4592(4)(e)(2), Florida Statutes; and Long Term Plan at 6-

86. If pollutants from urban development in western Broward

County discharged into the Everglades Protection Area (see

Tribe's App. at 6a, 7a) are not subjected to regulatory oversi ght

by NPDES permit requirements, the survival of this treasured

wetlands is in peril. The CWA requires a permit, and neither

Petitioner nor any of the amici have provided any basis in the

CWA for the judicially created exemptions they seek.

CONCLUSION

The judgment of the Eleventh Circuit Court of Appeals

should be affirmed.

Respectfully submitted,

Dexter W. LEHTINEN Sonia Escosio O’ DonNeELL

Counsel of Record RicHarD J. OVELMEN

Juan M. VarGas Enrique D. ARANA

CLaupio Riepi Topp M. Futter

LEHTINEN, VARGAS Jorpen Burt LLP

& Ruepi, P.A. 777 Brickell Avenue

7700 North Kendal! Drive Suite 500

Suite 303 Miami, FL 33131

Miami, FL 33156-7559

(305) 279-1166 Dione C. CARROLL

In House General Counsei

MICCOSUKEE TRIBE OF INDIANS

P.O. Box 440021

Tamiami Station

Miami, FL 33144

Counsel for Respondent

Miccosukee Tribe of Indians of Florida

www.dep.state.fl.us/evergladesforever/progress/map.htm (last visited 11/12/03)

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442, 450 n.16 (1975). Both EPA and DEP have critical

expertise and experience in navigating the complexities of

the labyrinthine CWA.

A. The Eleventh Circuit Rejected EPA’s Posi-

tion On Improper Grounds.

The Eleventh Circuit improperly viewed the “addi-

tion” test as limited to dams and dam-induced water-

quality changes. App., infra, 6a fn.4. The Sixth Circuit in

Consumers Power rejected such an argument when apply-

ing the “addition” test to transfers between impoundment

areas and a lake, noting that the five elements which

make up the definition of a discharge must be present in

“any set of circumstances” for NPDES permitting re-

quirements to apply. Consumers Power, 693 F.2d at 583.

The CWA does not distinguish between dams, levees,

canals, or other flow diversion facilities in recognizing the

nonpoint source nature of pollution caused by their

changes to the movement of water. See 33 U.S.C.

§ 1314(f(2F). Given the rationale underlying EPA’s

“addition” test, it remains neither explicitly nor logically

limited to dams.

The absence of an express declaration by EPA particu-

lar to the S-9 should not diminish deference under the

circumstances of this case. Given the agencies’ close

involvement with the development of alternative permit-

ting processes and procedures, a formal written agency

action declaring that NPDES does not apply would not be

expected. Here both EPA and DEP specifically reviewed

the water quality changes resulting from S-9 and chose a

state regulatory program as the most appropriate method

to control these changes. It does not follow that the agen-

cies, for their position to be considered by the federal

courts, must affirmatively disclaim the applicability of

NPDES.

ey ee A ~a

B. Under The CWA’s Statutory Scheme, Def-

erence To The Implementing State Agen-

cies Is Proper.

The CWA presents a cooperative federalism model

that anticipates a partnership between the state and

federal governments to restore and maintain the chemical,

physical and biological integrity of the Nation’s waters.

See Arkansas v. Oklahoma EPA, 503 U.S. 91, 101 (1992);

International Paper Co. v. Ouellette, 479 U.S. 481, 490

(1987). Under this scheme, EPA may delegate to a state

authority to administer the NPDES program, providing

the states with a significant role in protecting their own

natural resources. Ouellette, at 489, citing 33 U.S.C.

§ 1251(b). EPA retains strong supervisory authority and

control. 33 U.S.C. § 1342(d). Through such a delegation in

Florida, DEP infused local concerns and interests into the

policies of the CWA.

In these circumstances, the Eleventh Circuit erred

when it relied on GTE South Inc. v. Morrison, 199 F.2d

733, 745 (4th Cir. 1999) and the general rule that state

agencies are not entitled to the deference afforded a

federal agency’s interpretation of its own statutes under

Chevron. This Court has noted that the question whether

federal courts must defer to a state agency's interpreta-

tions of federal law remains unresolved under circum-

stances where Congress intended the states to play a

strong role determining the policy implications of a federal

regulatory scheme. See AT&T Corp. v. Iowa Utilities Bd.,

525 U.S. 366, 385 n.10 (1999).

Several federal courts have recognized deference to a

state agency is appropriate where a state agency is given

authority for implementation of a joint federal-state

program. See Perry v. Downling, 95 F.3d 231, 337-38 (2d

Cir. 1996); US West Communications Inc. v. Public Serv.

Comm of Utah, 75 F. Supp.2d 1284 (D. Utah 1999); Bell-

south Telecommunications, Inc. v. MCI Metro Access Trans.

Ser., Inc., 97 F. Supp.2d 1363 (N.D. Ga. 2000); see also

Attorney’s Liability Assurance Society, Inc. v. Fitzgerald,

174 F Supp.2d 619, 629 n.2 (W.D.Michigan 2001) (state

interpretations of the federal Liability Risk Retention Act

of 1986 might warrant deference because Congress treated

the state as a federal regulator and placed faith in the

states’ interpretations). Commentators have encouraged

the federal courts to drop their skepticism toward state

agencies in light of the faith Congress has increasingly

placed in them. See P. Weiser, Chevron, Cooperative

Federalism, and Telecommunications Reform, 52 Vand.

L.Rev. 1 (Jan. 1999).

Under the CWA, Congress placed their faith not only

in the specialized knowledge of the state and administra-

tive agencies, but also in the state’s ability to infuse local

concerns and experience into its policies. Congress devel-

oped a joint federal-state regulatory program, delegated

authority to state agencies over the NPDES program and

authorized EPA to supervise states’ NPDES programs. In

this case federal and state agencies both concurred that

state permits are the appropriate mechanism to resolve

the water quality problems arising from the S-9. App.,

infra, 43a-48a. Under these circumstances deference to

both agencies is proper.

Nonetheless, the Eleventh Circuit has rejected the

agencies’ practices that were developed over thirty years.

Its decision affects a drastic alteration of the existing

allocation of responsibilities between states and the

federal government concerning the regulation of water

pollution. This Court has admonished against interpreting

a statute to effect such a substantial change in the balance

of federalism unless that is the manifest purpose of the

legislation. See Owasso Independent School Dist. v. Falvo,

534 U.S. 426 (2002).

It is the policies reflected by the agencies’ continuous

well-informed practices and actions that deserved consid-

eration and respect from the Eleventh Circuit. Because the

agencies’ interpretation was based upon and remains fully

consistent with the plain language of the CWA properly

read in context with the overall statutory scheme and its

policies, the court should have deferred to the agencies’

“addition” test.

IV. THE PETITION SHOULD BE GRANTED, NOT

HELD FOR BORDEN RANCH PARTNERSHIP

v. U.S. ARMY CORPS OF ENGINEERS.

The Court has granted certiorari in Borden Ranch v.

United States, No. 01-1243 (cert. granted 2002), to decide,

among other questions:

Does a rancher’s deep plowing to enhance the

soil’s agricultural viability “add” a “pollutant” to

a wetland, so as to constitute a regulated point

source “discharge” within the meaning of Section

404 of the Clean Water Act?

A ruling in Borden Ranch that provides guidance to

the meaning of an “addition” under the CWA would be

relevant to this case since the SFWMD also contends that

the “addition” requirement is not met. Nevertheless,

holding this petition for Borden Ranch would not be

appropriate. This case and Borden Ranch involve the

scope of quite different permitting programs and very

different factual situations. Whether physical alterations

caused by plowing are found to be a “discharge” requiring

a dredge and fill permit from the Corps under Section 404,

is not likely to resolve the question in this case, whether

the movement of pre-existing pollutants by a state water

management agency constitutes a “discharge” requiring a

NPDES permit from the state under Section 402.° Borden

* Lower courts note that the “addition” requirement varies in the

different contexts and separate regulatory frameworks of the § 404

dredge and fill program (33 U.S.C. § 1344) and the § 402 NPDES

program (33 U.S.C. § 1342). See, e.g., Froebel v. Meyer, 13 F. Supp.2d

(Continued on following page)

——~ a

Ranch also involves a number of additional issues upon

which it may be decided without any guidance on the

“addition” requirement.

The issue in this petition will remain alive and in

urgent need of this Court’s review however this Court

decides Borden Ranch. Because the courts are in disarray

as to an important issue concerning the scope of the

NPDES, which will not be settled in Borden Ranch, the

Court is urged to grant independent review.

CONCLUSION

The petition for a writ of certiorari should be granted

or, in the alternative, held for the Court’s ruling in Borden

Ranch.

Respectfully submitted,

JAMES EDWARD NUTT

Counsel of Record

TIMOTHY S. BISHOP

MAYER, BROWN, ROWE

& PLATT South Florida Water

190 South LaSalle Street Management District

Chicago, IL 60603 3301 Gun Club Road

(312) 701-7829 West Palm Beach, FL 33406

(561) 682-6253

Counsel for Petitioner

October 2002.

843 (E.D. Wis. 1998); United States v. Sinclair Oil Co., 767 F. Supp.

200, 205 n.5 (D. Mont. 1990). The Eleventh Circuit ignored basic

distinctions between Sections 402 and 404 when it relied upon Section

404 cases to support its interpretation of an “addition.” App., infra, at

7a n.5 (citing 33 U.S.C. § 1344 and United States v. M.C.C. of Fla., Inc.,

772 F.2d 1501, 1505 (11th Cir. 1985)). Such cases are inapposite.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-15703

D. C. Docket Nos. 98-06056-CV-WDF

& 98-06057-CV-WDF

(Filed February 1, 2002)

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,

SAM POOLE,

Plaintiffs-Appellees,

versus

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Defendant-Appellant.

eee SD. OomwWnanm—

FRIENDS OF THE EVERGLADES,

Plaintiff-Appellee,

_ versus

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(Filed February 1, 2002)

Before EDMONDSON and CARNES, Circuit Judges, and

MUSGRAVE ,, Judge.

EDMONDSON, Circuit Judge:

The Miccosukee Tribe of Indians (“the Tribe”) and the

Friends of the Everglades (“the Friends”) (together “Plain-

tiffs”) brought a citizen suit under the Clean Water Act

(“CWA”) against the South Florida Water Management

District (“the Water District”). The suit alleges that the

Water District was violating the Clean Water Act by

discharging pollutants from the S-9 pump station into

Water Management District 3A without a national pollu-

tion discharge elimination system (“NPDES”) permit.

The parties filed cross-motions for summary judg-

ment. The district court denied the Water District's mo-

tion, granted Plaintiffs’, and enjoined the Water District

from operating the S-9 pump station without an NPDES

permit. The Water District appeals from the district

court’s order declaring unlawful the Water District's

operation of the S-9 pump station without an NPDES

permit and from the injunction prohibiting the same.’

I. BACKGROUND

The South Florida Water Management District

manages the Central & Southern Florida Flood Control

* Honorable R. Kenton Musgrave, Judge, U.S. Court of Interna-

tional Trade, sitting by designation.

' The district court also concluded that Plaintiffs’ claims against

Defendant were not barred by the doctrine of sovereign immunity. The

Water District has not appealed this ruling.

Project. This management is through the operation of

many levees, canals and water impoundment areas. The

areas now called the C-11 Basin and the Water Conserva-

tion Area-3A (“WCA-3A”) were historically part of the

Everglades. But, in the early 1900's, the Army Corps of

Engineers began digging the C-11 Canal to facilitate the

draining of the western portion of Broward County which

is part of the C-11 Basin. Then, in the 1950’s, the Corps

constructed the L-37 and L-33 levees to create WCA-3A to

the west of the C-11 Basin and completed construction of

the S-9 pump station.

The C-11 Canal runs through the C-11 Basin and

collects water run-off from the Basin and seepage through

the levees from WCA-3A. The S-9 pump station then

pumps this water through three pipes from the C-11 Canal

through the L-37 and L-33 levees into WCA-3A at a rate of

960 cubic feet per second per pipe. Without the operation

of the S-9 pump station, the populated western portion of

Broward County would flood within days.’

The water which the C-11 Canal collects and which

the S-9 pump station conveys into the WCA-3A contains

pollutants. In particular, this water contains higher levels

of phosphorus than that naturally occurring in WCA-3A.

The S-9 pump station, however, adds no pollutants to the

water which it conveys.

? But for the construction of the L-33 and L-37 levees and the C-11

canal, water would flow as a sheet across WCA-3A and the C-11 Basin

in a southerly direction. Now, because of the construction of these

structures, water from the C-11 Basin generally does not flow west into

the WCA-3A without the operation of S-9.

The district court concluded that, because the waters

collected by the C-11 Canal contained pollutants and this

water would not flow into WCA-3A without the operation

of the S-9 pump station, S-9 added pollutants to the WCA-

3A in violation of the CWA. On appeal, the Water District

contends that the district court erred as a matter of law in

concluding that S-9’s conveyance of water from the C-11

Canal into the WCA-3A constituted a discharge of poisut-

ants. :

II. DISCUSSION

A. Pumping of Polluted Water

We review the district court's grant of summary

judgment to Plaintiffs de novo, applying the same legal

standard as the district court. Hendrickson v. Ga. Power

Co., 240 F.3d 966, 969 (1lth Cir. 2001). For summary

judgment to be proper, no genuine issue can exist on a

material fact; and the moving party must be entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). In

reviewing the evidence, we must draw all reasonable,

factual inferences in favor of the non-moving party. Carri-

ers Container Council, Inc. v. Mobile S.S. Ass’n, 896 F.2d

1330, 1337 (11th Cir. 1990).

The Clean Water Act prohibits the discharge of pollut-

ants from .- point source into navigable waters without an

NPDES permit. See 33 U.S.C. §§ 1311, 1342. The “dis-

charge of a pollutant” is defined as “any addition of any

pollutant to navigable waters from any point source.” See

33 U.S.C. § 1362(12). No party disputes that the S-9 pump

station and, in particular, the pipes from which water is

released constitute a point source’ or that the water

released by the station contains pollutants. Also, both

parties agree that the C-11 Canal and the WCA-3A consti-

tute navigable waters. The parties mainly dispute one

legal issue: whether the pumping of the already polluted

water constitutes an addition of pollutants to navigable

waters from a point source.

Relying on a line of hydroelectric-dam cases, the

Water District argues that no addition of pollutants from a

point source can occur unless a point source adds pollut-

ants to navigable waters from the outside world. See Nat'l

Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 175 (D.C.Cir.1982)

(showing deference to EPA’s interpretation that “[an]

addition from a point source occurs only if the point source

itself physically introduces a pollutant into water from the

outside world”); Nat’l Wildlife Fed’n v. Consumers Power

Co., 862 F.2d 580, 584 (6th Cir. 1988) (same).* Under the

’ A point source is defined to be “any discernible, confined and

discrete conveyance, including but not limited to any pipe ... from

which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).

‘In Gorsuch, the District of Columbia Court of Appeals gave

deference to the EPA's position that, because pollutants were the result

of dam-induced water-quality changes, a dam did not add pollutants

from the outside world and, thus, no NPDES permit was required for a

dam to release the water into a downstream river. Jd. at 174-75. In

another case involving a dam and dam-induced water-quality changes,

the Sixth Circuit also concluded that the EPA's position on this question

should be deferred to if reasonable. See Consumers Power, 862 F.2d at

584. Both the Sixth and District of Columbia Circuits, in essence, gave

Chevron deference to the EPA's position that the release of water which

had been polluted by dam-related, water-quality changes and which

flowed from a dam into another body of navigable water constituted no

“discharge of pollutants.” But see Catskill Mountains Chapter of Trout

(Continued on following page)

Water District’s interpretation, when a point source

conveys one navigable water into another, no addition of

pollutants will occur unless the point source itself is the

source of the pollutants which it releases. And, because S-

9 does not itself introduce pollutants from the outside into

the water which it conveys, the Water District contends no

addition of pollutants occurs.

First, we conclude that, in determining whether

pollutants are added to navigable waters for purposes

of the CWA, the receiving body of water is the relevant

body of navigable water. Thus, we must determine

whether pollutants are being added to WCA-3A. They are.”

Unlimited, Inc. v. City of New York, 273 F.3d 481, 490 (2d Cir. 2001)

(concluding EPA's position in Gorsuch and Consumers Power which was

based on policy statements and consistent litigation positions is not

entitled to Chevron deference); see also Christensen v. Harris County,

529 U.S. 576, 587, 120 S.Ct. 1655, 1662 (2000) (“{I)nterpretations

contained in policy statements, agency manuals, and enforcement

guidelines . . . do not warrant Chevron-style deference.”).

We know of no instance in which the EPA has extended its policy on

dams and dam-induced water-quality changes to facilities like the S-9

pump station. The EPA is no party to this case; we can ascertain no

EPA position applicable to S-9 to which to give any deference, much less

Chevron deference. .

We also reject the Water District's argument that the Florida

Department of Environmental Protection's decision, using the Gorsuch

addition test, that operation of the S-9 pump does not require an

NP ES permit is entitled to Chevron deference. A state agency's

inte pretation of federal law is generally not entitled to deference by

the courts. GTE South, Inc. v. Morrison, 199 F.3d 733, 745 (4th Cir.

1999).

* We reject the Water District's argument that no addition of

pollutants can occur unless pollutants are added from the outside world

insofar as the Water District contends the outside world cannot include

another body of navigable waters. Cf. Catskill Mountains, 273 F.3d at

491 (construing “outside world” to include “any place outside the

(Continued on following page)

Nevertheless, for an addition of a pollutants to navigable

waters to require an NPDES permit, that addition of

pollutants must be from a point source. And, for an addi-

tion of pollutants to be from a point source, the relevant

inquiry is whether — but for the point source — the pollut-

ants would have been added to the receiving body of

water.’ We, therefore, conclude that an addition from a

point source occurs if a point source is the cause-in-fact of

the release of pollutants into navigable waters.

When a point scurce changes the natural flow of a

body of water which contains pollutants and causes that

water to flow into another distinct body of navigable water

into which it would not have otherwise flowed, that point

particular water body to which pollutants are introduced”) (emphasis

added). This conclusion is also consistent with precedent concluding

that a redeposit of soil which has been dredged by a boat’s propellers

can constitute an addition of pollutants requiring regulation by the

“dredge and fill” permitting system of the CWA, 33 U.S.C. § 1344. See

United States v. M.C.C. of Fla., Inc., 772 F.2d 1501, 1505-06 (11th Cir.

1985), vacated on other grounds by 481 U.S. 1034, 107 S. Ct. 1968

(1987), reinstated in relevant part on remand, 848 F.2d 1133 (11th Cir.

1988).

S-9 is not the original source of the pollutants in the water which it

conveys. For pollutants to be from a point source, the point source does

not necessarily have to be the source or origin of pollutants. “From a

point source” can also indicate the “agent or instrumentality” or the

“cause or reason” by which the pollutants are added to navigable

waters. See The Random House Dictionary of the English Language 770

(2d ed. 1987) (defining “from”). We conclude that this interpretation of

“from” is most apt: from = by. And no dispute exists on whether

pollutants, in fact, are added to navigable waters (WCA-3A) by a point

source (S-9) here.

source is the cause-in-fact of the discharge of pollutants.’

And, because the pollutants would not have entered the

second body of water but for the change in flow caused by

the point source, an addition of pollutants from a point

source occurs. Neither party disputes that, without the

operation of the S-9 pump station, the polluted waters

from the C-11 Canal would not normally flow east into the

WCA-3A.’ The S-9 pump station, therefore, is the cause-in-

fact of the addition of pollutants to the WCA-3A. We,

’ Our conclusion is consistent with the views of the First and

Second Circuits. In Dubois v. United States Department of Agriculture,

102 F3d 1273 (1st Cir. 1996), the First Circuit concluded that the

piping of water from the polluted East Branch River for commercial use

and its propdsed release into the upstream Loon Lake would constitute

an addition of pollutants from a point source. Id. at 1296-99. Then, in

Catskill Mountains, the Second Circuit concluded that the diversion of

water from a reservoir containing pollutants by tunnel into a creek for

which the reservoir was not naturally a source would constitute an

addition of pollutants from a point source. Catskill Mountains, 273 F.3d

at 492. Both courts emphasized that the two bodies of water were

separate and that pollutants would not enter the second bouy except for

the point source.

* Both the C-11 Basin and the WCA-3A were part of the historical

Everglades. Before construction of the C-11 Canal, the Levees, and the

S-9 pump station, the surface and ground waters on both side of the

Levees intermingled. The natural flow of the waters at that time was a

southerly moving sheet of water. But for man’s intervention, these

waters would essentially be a single body of navigable water.

Since the completion of the L-33 and L-37 levees, water does not

flow from the C-11 Canal into WCA-3A. Man has made the two bodies

of water two separate and distinct bodies of water. The Water District

argues that the historical hydrological connectedness of these two

bodies of water (1) precludes a finding that the WCA-3A and the C-11

Canal are two distinct bodies of water, and (2) precludes a finding that

the operation of the S-9 changes the “natural” flow of water between

these two bodies. In the context of the circumstances of this case, we

reject the Water District’s argument.

therefore, conclude that the release of water caused by the

S-9 pump station’s operation constitutes an addition of

pollutants from a point source.

B. The Injunction

Next, the Water District contends that the district

court abused its discretion by enjoining the Water District

from operating the S-9 pump station without an NPDES

permit. The Water District argues that the court erred by

not applying traditional equitable standards in its grant of

the injunction. See Weinberger v. Romero-Barcelo, 456 U.S.

305, 320, 102 S. Ct. 1798, 1807 (1982) (prohibition against

discharge of pollutants in CWA does not foreclose exercise

of equitable discretion). And, according to the Water

District, had the district court balanced the potential harm

caused by enjoining the operation of S-9 against the harm

prevented,” the court would have concluded that S-9

should not be enjoined from operating without an NPDES

permit.

We review for an abuse of discretion the district

court’s decision to grant an injunction under the CWA.

Romero-Barcelo, 456 U.S. at 320, 102 S. Ct. at 1807. in

determining whether an injunction is proper, not only

should a district court “balance[ ] the conveniences of the

parties and possible injuries to them according as they

may be affected by the granting or withholding of the

injunction[,)” but the court “should [also] pay particular

regard for the public consequences in employing the

* Without the operation of S-9, the western portion of Broward

County would flood in only days.

10a

extraordinary remedy of injunction.” Jd. at 312, 102 S. Ct.

at 1803 (citation omitted); see also Million Youth March,

Inc. v. Safir, 155 F.3d 124, 125 (2d Cir. 1998) (“An injunc-

tion is an exercise of a court’s equitable authority, and the

exercise of that authority, in the vindication of any legal

protection ... must sensitively assess all the equities of

the situation, including the public interest.”); Okaw

Drainage Dist. v. Nat'l Distillers & Chem. Corp., 882 F.2d

1241, 1248 (7th Cir. 1989) (“[Ajn injunction . .. may not be

granted without consideration of the equities, including

the costs that the injunction is likely to impose on third

parties.”). Because the cessation of the S-9 pump would

cause substantial flooding in western Broward County

which, in turn, would cause damage to and displacement

of a significant number of people,” we conclude that the

people of Broward County have a very significant interest

in whether the S-9 pump station’s operation should be

enjoined.

The district court’s injunction prohibits the Water

District from operating S-9 without an NPDES permit. If

this injunction were enforced, the Water District could not

continue to operate S-9 while applying for an NPDES

permit." And although on appeal Plaintiffs defend the

of 1,623,081 according to the 2000 United States Census. See Ranking

Tables for Counties: Population in 2000 and Population Change from

1990 to 2000 (PHC-T-4) (2001), availab’e at http:// www.census.

gov/population/cen2000/ phe-t4/tab01.pdf.

" In their briefs, Plaintiffs try to draw a distinction between a

hypothetical injunction which enjoins the operation of S-9 and the

actual injunction which enjoins the operation of S-9 without an NPDES

permit. Because S-9 currently has no NPDES permit, this distinction is

(Continued on following page)

lla

district court’s injunction, Plaintiffs have repeatedly

represented that they — because of the substantial flooding

of Broward County which would result — do not really seek

the cessation of S-9’s operation. At the summary judgment

motion hearing before the district court, Plaintiffs said

these things:

We would like [the Water District] to be enjoined

from continuing [discharging pollutants without

an NPDES permit. |]

Now, I don’t, in any way, propose turning off

the pump. That has been discussed a couple of

times here. It’s sort of a frightening option, but I

don’t think that specifically is feasc6le.

However, if [the Water District] were ordered

to apply and take all necessary and appropriate

measures to obtain as quickly as possible the

necessary permits, to actually use the permit in

compliance with the law... .

So we are not asking that you just turn off

the pump or suddenly stop every single pollut-

ant....

So, declare them in violation. Order them to

get out of violation, to obtain the necessary per-

mits, to discharge in the legal manner.

R-164 at 64-65 (emphasis added).

one without a difference. The injunction that was entered does mandate

that S-9’s operation be discontinued.

12a

After the district court enjoined the operation of S-9

without a permit, the Water District brought an emer-

gency motion for relief from the judgment. Because of the

disastrous consequences of discontinuing S-9’s operation,

Plaintiffs did not oppose this motion and agreed that a

stay of the injunction was proper.” And, in response to the

Water District’s motion for reconsideration to the district

court, Plaintiffs stated that they would agree to whatever

stays were necessary for the Water District to obtain an

NPDES permit for S-9. Plaintiffs, thus, appear to recog-

nize and admit the exceedingly serious public loss that

would result from enforcing the district court’s injunction.

From the record before us, we cannot conclude that

the district court’s injunction could ever be properly

enforced. Nor can we conclude that Plaintiffs have ever

really intended for that injunction to be enforced. The

flooding of western Broward County and the resulting

displacement of the residents there do far outweigh the

continued addition of low levels of phosphorus to WCA-3A

without an NPDES permit. No district court faced with

the record could correctly conclude otherwise.

The United States Supreme Court warns “[t]here is no

power, the exercise of which is more delicate, which

requires greater caution, deliberation, and sound discre-

tion, or more dangerous in a doubtful case, than the

“ The district court originally granted a forty-day stay of the

issuance of the injunction for the Water District to seek an NPDES

permit for S-9. See R-125, R-136. The parties then filed a joint motion to

extend the stay of injunctive relief pending resolution of this appeal or

the receipt of an NPDES permit. The district court granted this joint

motion. R-142 at 1-2.

13a

issuing [sic] an injunction.” Truly v. Wanzer, 46 U.S. (5

How.) 141, 142 (1847). “Once issued, an injunction may be

enforced.” Hutto v. Finney, 437 U.S. 678, 690, 98 S. Ct.

2565, 2573 (1978). So, we do not want injunctions to linger

in existence when they are not right. Moreover, this

“strong arm of equity,” see Truly, 46 U.S. at 142, is debased

and weakened if used to issue injunctions which cannot

rightly be enforced and are actually never intended to be

enforced. “The equity court . .. must always be alert in the

exercise of its discretion to make sure that its decree will

not be a futile and ineffective thing.” MacDougall v. Green,

335 U.S. 281, 290, 69 S.Ct. 1, 5 (1948) (Douglas, J.,

dissenting). Injunctions must be taken seriously. What the

courts order to be done should be done. And what should

not or cannot be done must not be ordered to be done.

At the hearing leading up to the injunction, some

evidence and argument pointed out that severe flooding

would occur if S-9 were shut down. But, a iot of informa-

tion about other points was also presented to the district

court at about the same time. At the later hearing on the

Water District's emergency motion for relief from judg-

ment, the district court stated, “I was not aware that the

injunction would have the dire consequences of literally

opening the flood gates.” R-165 at 2. It seems to us that, in

the light of the district court’s wrong impression of the

consequences, the district court could not have correctly

balanced the possible harms — especially the harm to the

public — caused by the enjoinment of S-9 against the

benefits when it granted its injunction. That the district

court agreed to stay the injunction, when the dire conse-

quences were brought home to the district court, does not

make the injunction any less an abuse of discretion.

14a

Instead of issuing an injunction which cannot be

rightly enforced, the district court should order the Water

District to obtain an NPDES permit within some reason-

able period. And, if the Water District fails to comply with

this order, Plaintiffs may then seek to enforce the order

through the various enforcement mechanisms available

under the CWA, such as fines and criminal penalties. See

33 U.S.C. § 1319.

For the foregoing reasons, we AFFIRM the district

court’s judgment that the Water District violated the

Clean Water Act, VACATE the judgment awarding the

injunction, and REMAND for further proceedings consis-

tent with this opinion.

AFFIRMED in part, VACATED in part, and RE-

MANDED.

15a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MICCOSUKEE TRIBE OF Case No.

INDIANS OF FLORIDA, 98-6056-CIV-FERGUSON

Plaintiff,

vs.

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

and SAMUEL POOLE,

Defendants.

FRIENDS OF THE ~ Case No.

EVERGLADES, 98-6057-CIV FERGUSON

Plaintiff

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

(Filed Sep. 30, 1999)

THIS CAUSE is before the Court on the Plaintiff

Miccossukee Tribe’s Motion for Summary Judgment on All

Counts of the Tribe’s Complaint [D.E.60} and on the

Defendanit’s Motion for Final Summary Judgment

[D.E.66]. Having duly considered the motions, responses,

oral argument of counsel] and pertinent portions of the

record, it is

16a

ORDERED AND ADJUDGED that the plaintiff's

motion for summary judgment [D.E.60] is GRANTED.

The defendants’ motion for summary judgment [D.E.66] is

DENIED.

Factual Background

The Miccosukee Tribe of Indians of Florida (the

“Tribe”) is a federally-recognized Indian Tribe. For genera-

tions the Tribe and its members have resided and worked

within the Florida Everglades (the “Everglades”).' The

Tribe has land interests lying within the Everglades,

including a perpetual lease to most of Water Conservation

Area 3A (“WC 3A”). The way of life of the Tribe and its

members, including their religious, cultural, economic, and

historical identity, is based upon the Everglades ecosystem

and upon preservation of the Everglades in its natural

state, including but not limited to the quantity and quality

of the Everglades’ waters.’

The Everglades is an oligotrophic’ wetlands system

which is phosphorus limited and sensitive. The level of

phosphorus, a nutrient, is the defining chemical character-

istic of the system in that the exhaustion of the available

‘ The term Everglades as used herein refers to the areas presently

identified as the Florida Water Conservation Areas, including Water

Conservation Area 3A, and Everglades National Park, although the

Everglades ecosystem historically included a much larger area.

* The Tribe's religious activities include the planting and harvest-

ing of corn on tree islands on the Everglades; its subsistence activities

include “gathering of materials”, hunting, and fishing; its commercial

activities include frogging, airboating and other guided tours and

providing recreational and tourism facilities within the Everglades.

* A body of water poor in plant nutrient minerals and organisms

and usually rich in oxygen in all depths. ~

17a

phosphorus limits the type and distribution of aquatic

flora, and fauna. The addition of phosphorus above natural

levels causes an imbalance in flora and fauna resulting in

additional detrimental growth. Further, the Everglades

has some characteristics of ultra-oligotrophic systems,

which are even more phosphorus limited and phosphorus

sensitive than oligotrophic systems.‘

In the 1950’s the South Florida Water Management

District’s (“SFWMD”) S-9 pumping station (“S-9”) with its

three pipes,’ located in urban Broward County, was com-

pleted. SFWMD, one of the five water management dis-

tricts in Florida created by the Florida Legislature and

allegedly a state agency, is charged with the operation and

management of S-9. Samuel Poole (“Poole”) was the

executive director of SFWMD when this action com-

menced.® The Tribe alleges that S-9, is the cause of the

pollutants, and has been backpumping contaminated

water which contains nutrients, such as phosphorus, into

the Everglades specifically into WC 3A, a jurisdictional

water of the United States, without the required National

* The oligotrophic conditions of the Everglades were recognized by

the Florida Department of Environmental Protection and the South

Florida Water Management District in the 1992 Settlement Agreement

and Consent decree in case number 88-1886-CIV-HOEVELER.

* There are three pumps at the S-9. Each one of the pumps can

pump 960 cubic feet per second. There are three pipes on the west side

of S-9 from which water is discharged. If the S-9 pumps are not in

operation, water does not discharge from the pipes. Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984).

* Poole is no longer the executive director of SFWMD. A suit

against him in his official capacity is essentially a suit against the

SFWMD. Therefore, the Court need not consider immunity against

Pooie separately.

18a

Pollutant Discharge Elimination System (“NPDES”)’

permit. The Tribe alleges that the absorption of pollutants

in the Everglades is causing degradation not only in the

water quality but in the plant materials, soils, animal

habitat and biological life, causing long term and perhaps

permanent damage to the Everglades’ system.

The Tribe states that much of the water released from

S-9 comes from the C-11 canal which is an external source

of pollutants to the Everglades, a separate body of water,

and of significantly different water quality than the

Everglades. In addition to the pollution into the Ever-

glades allegedly caused by the S-9, the Army Corps of

Engineers has been authorized by Congress to construct

the Modified Water Deliveries project to restore water to

Everglades National Park through northeastern Shark

River Slough, which will result in further pollution to

relatively pristine areas. The project will involve creating

gaps in the L-67 Levee between WC 3A and WC 3B thus

opening up relatively pristine WC 3B and the National

Park Everglades to polluted water from the S-9 pump. It is

alleged further that if the S-9 pump is not operating the

water sits in the C-11 canal, its natural direction of flow

being from west to east, and the polluted water does not

flow into the Everglades and CW 3A.

SFWMD argues that the water released from S-9,

although containing pollutants, is not adding pollutants to

the Everglades because the water from C-11 seeps into the

" A NPDES permit is an operations permit issued by the EPA to

waste water facilities discharging pollutants through a point source or

discrete conveyance. The Tribe states that SFWMD has no pending

ications for a NPDES permit.

19a

Everglades as ground water, and both areas were part of

the historical Everglades. Consequently, SFWMD contin-

ues, S-9 merely passes water between two parts of the

same body of United States water and therefore does not

create pollutants; that they are created by the C-11 and its

adjacent land uses. For these reasons, SFWMD contends,

a NPDES permit is not needed for S-9 and neither the

U.S. Environmental Protection Agency nor the State of

Florida Department of Environmental! Regulation required

one.

Standard for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that

summary judgment shall be granted if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). A factual dispute is “genuine” if the evidence

is such that a reasonable jury could return a verdict for

the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Similarly, a fact is “material” if it might

affect the outcome of the suit under the governing sub-

stantive law. Anderson, 477 U.S. at 247.

In considering this motion for summary judgment, the

Court must examine “whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that the defendant should

prevail as a matter of law.” Jd. at 243. The movant bears

the initial burden of showing the absence of a genuine

issue as to any material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). In deciding whether the movant has

20a

met this burden, the Court must view the evidence and all

factual inferences in the light most favorable to the non-

movant. Miranda v. B & B Cash Grocery Store, Inc., 975

F.2d 1518, 1532 (11th Cir. 1992). “If reasonable minds

could differ on the inferences arising from undisputed

facts, summary judgment should be denied.” Jd. at 1534.

Once the initial burden is met, the non-movant must

come forward with specific facts showing that there is a

genuine issue for trial that precludes summary judgment.

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). The evidence presented cannot

consist of conclusory allegations, legal conclusions or

evidence which would be inadmissable at trial. Avirgan v.

Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Likewise, “a

mere scintilla of evidence supporting a position will not

suffice; there must be enough of a showing that the jury

could reasonably find for the [non-movant].” Anderson, 477

U.S. at 252. Failure to make a showing sufficient to

establish the existence of any essential element of a claim

is fatal and requires the entry of summary judgment.

Celotex Corp., 477 U.S. at 322-323.

Issues Presented

The issues raised are: whether SFWMD is an arm or

agency of the state immune from federal action by the

Eleventh Amendment of the Constitution and whether

there is an addition of pollutants when water containing

pollutants is discharged from S-9, a disputed point source,

into the Everglades therefore requiring a NPDES permit

in order to operate the S-9 pump.

The Tribe moves for summary judgment on Count I

and II of its complaint which allege that both the SFWMD

2la

and Poole violated the Federal Water Pollution Control Act

(“Clean Water Act”) 33 U.S.C. § 1251 et seg. by failing to

obtain a NPDES permit before transferring water between

the C-11 canal and the Everglades through S-9. SFWMD

and Pooie have filed cross-motion for summary judgment.

The parties agree that the waters in question are

navigable waters of the United States, and that the C-11

water discharged form S-9 into the Everglades is a pollut-

ant.

Eleventh Amendment Immunity

The Eleventh Amendment grants immunity to states

in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63

(1974). It provides:

The Judicial power of the United States shall not

be construed to extend to any suit in law or eq-

uity, commenced or prosecuted against one of the

United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

U.S. Const. Amend. 11.

The Eleventh Amendment does not extend to counties

or similar municipal corporations. Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). The

states’ immunity from suit specifically applies to Indian

tribes. Blatchford v. Native Village of Noatak, 501 U.S.

775, 775 (1991). Whether an entity is an arm or agency of

the state protected by the Eleventh Amendment is @

question of federal law determined with reference to

applicable state law. Magula v. Broward Gen. Med. Ctr.

742 F.Supp. 645, 648 (S.D. Fla. 1990); Fouche v. Jekyll

Island - State Park Auth., 713 F.2d 1518, 1520 (11th Cir.

22a

1983). The Eleventh Circuit has identified the following

factors for consideration in determining if an entity is an

arm or agency of the state protected by the Eleventh

Amendment: (1) how state law defines the entity; (2) the

entity's fiscal autonomy; (3) what degree of control the

state maintains over the entity; (4) where funds for the

entity are derived; and (6) who is responsible for judg-

ments against the entity. Tuveson v. Florida Governor's

Counsel on Indian Affairs, Inc., 734 F.2d 730, 732 (11th

Cir. 1984).

Whether an entity is a state agency for the purposes

of applying certain Florida” statutes is a separate and

independent question from whether the entity is a state

agency for Eleventh Amendment purposes. Tuveson, 734

F.2d at 735. The United States Supreme Court emphasized

that a judicial analysis should focus on the Eleventh

Amendment’s fundamental purposes: to prevent judg-

ments from depleting state treasuries and to maintain the

integrity retained by each state in our federal system."

Hess v. Port Auth. Trans-Hudson, 513 U.S. 30, 51 (1994). It

is the burden of SFWMD to establish the immunity

alleged. Christy v. Pennsylvania Turnpike Comm’n, 54 F.3d

1140, 1144 (3d Cir. 1995).

* A claim seeking prospective injunctive relief against a state

officer’s ongoing violation of federal law can ordinarily proceed in

federal court, and is not barred by Eleventh Amendment. Doe v. Chiles,

136 F.3d 709, 719 (11th Cir. 1998). On that theory, arguably, this action

could proceed without addressing the Eleventh Amendment issue in

that the plaintiffs are not seeking damages.

23a

1._How the State Defines SWFMD

The Florida Water Resources Act of 1972, Fla. Stat.

§ 373.069, which created five water management districts

including the SFWMD, does not characterize SFWMD as

an arm or agency of the state. Florida Statute § 189.403(6)

defines SFWMD as a “special district”:

Water management district for purposes of this

chapter means a special taxing district which is a

regional water management district created and

operated pursuant to chapter 373 or chapter 61-

691, Laws of Florida, or a flood control district.

created and operated pursuant to chapter

252270, Laws of Florida as modified by s.

373.149.

Courts in the District are divided on the question.

Those holding that SFWMD is a state agency immune

from suit are Miccosukee Tribe of Indians of Florida v.

South Florida Water Management Dist., 980 F. Supp. 448

(S.D. Fla. 1997), Bensch v. South Florida Water Manage-

ment Dist., No. 95 Civ. 1202 (S.D. Fla. 1996) and Indian

Trails Water Control District v. South Florida Water

Management Dist., No. 96 Civ. 8528 (S.D. Fla. Dec. 12,

1996). The cases reaching the opposite conclusion include

Thomas v. South Florida Water Management Dist., No. 96

Civ. 896 (M.D. Fla. Mar. 23, 1998) and IT Corp. v. South

Florida Water Management Dist., No. 97 Civ. 8872 (S.D.

Fla. July 20, 1998). As the determination is a matter of

fact and because the factual record may be better devel-

oped here than in previous cases, the Court will undertake

an independent analysis.

Unlike a state agency SFWMD is entitled to and does

levy ad valorem taxes. Article VII §9 of the Florida

Constitution states in relevant part:

24a

(a) Counties, school districts, and municipalities

shall, and special districts may, be authorized by

law to levy ad valorem taxes... .

(b) * valorem taxes ... shall not be levied in ex-

cess .! the following millages ... for water man-

agement purposes for the remaining portions of

the state, 1.0 mill; and for all other special dis-

tricts a millage authorized by law approved by

vote of the electors who are owners of freeholds

therein not wholly exempt from taxation.

See also Fla. Stat. §§ 373.1962 and 373.503. Such author-

ity to levy ad valorem taxes is prohibited to the State as

stated in Article VII, § 1 of the Florida Constitution:

(a) No tax shall be levied except in pursuance of

law. No state ad valorem taxes shall be levied

upon real estate or tangible personal property.

All other forms of taxation shall be preempted to

the state except as provided by general law.

Contrary to SFWMD’s assertion that the Florida Constitu-

tion allows it to levy ad valorem taxes as a “state agency”

the Constitution can only be read to mean that certain

“special districts”, SFWMD being one of them, are allowed

ad valorem taxing authority but not as a state agency. Of

further significance is Poole’s deposition testimony

wherein he testifies that SFWMD is responsible for its

own judgments. The record lacks evidence showing that

the state would be liable for judgments against SFWMD.

For these reasons the Court finds that on this factor

SFWMD would not meet state law definition of an agency

of the state fer purposes of the Eleventh Amendment.

25a

2. SFWMD’s Fiscal Autonomy

The Florida Statutes show that SFWMD is a self-

funded entity with the power to tax, to borrow to pay

expenses, to issue interest bearing negotiable notes and

pledge the proceeds of taxes levied. See Fla. Stat.

§§ 373.503, 373.506, 373.5639. Section 373.501 states that

the Department of Environmental Regulation “may

allocate to the water management districts from funds

appropriated to the department such sums as may be

deemed necessary to defray the costs of administrative,

regulatory, and other activities of the district.” The state’s

discretionary authority to contribute to SFWMD’s opera-

tional expenses does not establish conclusively that

SFWMD is dependent on the state. Many other entities,

for example, school districts, are highly funded by the

state but are not considered state agencies for Eleventh

Amendment purposes.

3. The States Degree of Control over SFWMD

SFWMD claims that it is controlled by the state and

relies on Fouche and several sections of the Florida Stat-

utes to support its assertion. Statutory controls exercised

by the state over SFWMD include: (1) the Governor

appoints and the Florida Senate confirms the governing

board members of SFWMD, Fila. Stat. § 373.073; (2) the

Governor approves the executive director after the Florida

Senate has confirmed the appointment by the SFWMD’s

board, Fla. Stat. § 373.079(4)(a); (3) the Department of

Environmental Protection “shall, to the greatest extent

possible, exercise supervisory authority over all water

management districts”, Fla. Stat. §§ 373.026(7); (4) SFWMD

is required to submit an annual budget and expense report

to the Governor, Legislature and the governing body of

26a

each county, Fla. Stat. § 373.507; (5) the state’s Auditor

General may, at the direction of the Governor, audit each

district’s accounts, Fla. Stat. § 373.589; (6) the district’s

annual budget may be adopted only after adequate notice

to the public and public hearing, Fla. Stat. § 373.536.

There are indeed fiscal controls and limitations on

authority imposed upon SFWMD by statute but none are

inconsistent with legal autonomy, i.e., the power to sue

and be sued. In Fouche the park authority had additional

ties to the state that SFWMD does not have with Florida,

e.g., the state was required to approve all park land sales.

Fouche, 713 F.2d at 1521. In Fouche it was also pivotal

that a judgment against the Park Authority would proba-

bly be paid by the state. In this case the fact that SFWMD

has the power to fund itself through ad valorem taxation,

and to borrow money and that direct financial support by

the state is discretionary, leans in favor of a finding that

SFWMD is not an instrumentality of state government.

4. SFWMD’s Source of Funds and Responsibility for

Judgements Against SFWMD

As found above SFWMD through its ad valorem

taxation and borrowing powers is capable of an independ-

ent financial existence even though the state may volun-

tarily appropriate funds for its operation. On a fact not

considered in other cases in the district SFWMD’s execu-

tive director conceded in deposition testimony, that pay-

ment of a judgment against SFWMD would not come from

the state appropriations but from ad valorem taxes,

agricultural privilege tax or an insurer. Neither the

Florida Constitution, or statutes make the state responsi-

ble for paying judgments against SFWMD and no evidence

is found in the record to support the contention.

27a

Based on consideration of the factors required by the

Eleventh Circuit, this Court finds that SFWMD is not an

arm or agency of the state for Eleventh Amendment

purposes.

S-9 Pump as Polluting Point Source

The Clean Water Act is a comprehensive water quality

statute enacted by Congress to restore and maintain the

chemical, physical, and biological integrity of the nation’s

waters. 33 U.S.C. § 1251l(a). Congress established the

NPDES permit program as the primary means for enforc-

ing effluent limitations imposed to achieve the Clean

Water Act’s objectives. Weber v. Trinity Meadows Raceway,

Inc., 1996 WL 477049 (N.D. Tex. 1996). The Clean Water

Act pro:ibits the discharge of pollutants from a point

source into navigable waters of the United States, unless a

NPDES permit is issued. 33 U.S.C. § 1342; National

Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580, 583

(6th Cir. 1988). The term “‘discharge of a pollutant’ and

the term ‘discharge of pollutants’ each means (A) any

addition of any pollutant to navigable waters, (B) any

addition of any pollutant to the waters of a contiguous

zone from any point source or the ocean from any point

source other than a vessel or other floating craft.” 33

U.S.C. § 1362(12). The definition of pollutant includes

solid waste, sewage, garbage, biological materials, and

wrecked or discarded equipment. 33 U.S.C. § 1362(6).

Navigable waters means the waters of the United States.

33 U.S.C. § 1362(7). The term point source is defined as

“any discernable, confined, and discrete conveyance,

including but not limited to any pipe, ditch, channel,

tunnel, conduit ... from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14).

28a

The Tribe relies on Dubois v. United States Dept. of

Agric., 102 F.3d 1273 (1st Cir. 1996) in support of its

position. Dubois is persuasive authority. Dubois involved

the use of Loon Pond’ by a ski resort as a source of water

and a repository for disposal of water for its snow making

system. The ski resort used water not only from Loon Pond

but from another river to make snow. In doing so pollut-

ants were being transferred from the river into Loon Pond.

The argument made and rejected in Dubois was that the

two bodies of water were a “single entity” so there could

have been uo “addition” of pollutants by the transfer of

water from the river to the pond. In United States v.

M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir.

1985), as noted by Duvois, the Eleventh Circuit also

rejected the “single entity’ theory and found a “discharge

of a pollutani” in violatior of the Clean Water Act where

spoil dredged by the pronellers of a vessel were deposited

on an adjacent sea grass bed.

In this case an addition of pollutants exists because

undisputedly water containing pollutants is being dis-

charged through S-9 from C-11 waters into the Everglades,

both of which are separate bodies of United States water

with a different quality levels. They are two separate

bodies of water because the transfer of water or its con-

tents from C-11 into the Everglades would not occur

naturally. Dubois, 102 F.3d at 1297. That at one time these

two bodies of water were hydrologically connected is now

* Loon Pond is located in the White Mountain National Forest and

is classified as a Class A waterbody protected by demanding water

quality standards.

29a

irrelevant and ignores the fundamental direction of water

flow factor. Dubois, 102 F.3d at 1298.

SFWMD and Poole contend that S-9 is not a point

source because it does not create the pollutants discharged

into the Everglades. They claim the C-11 canal which

contains runoffs from developed lands eastern in Broward

county is the pollutants’ source. Under the Clean Water

Act, § 1362(14), a pipe, such as the three in S-9 is a point

source because it discharges pollutants. It is not necessary

that the conveyance be the originator of the transferred

contaminants. There is no doubt in this case, and it is

uncontested by the parties, that S-9 is discharging pollut-

ants into the Everglades. That the pollutants are not

formed solely by S-9 is immaterial in a plain reading of the

Act.

Conclusion

The Everglades, which includes the CW 3A and the C-

11 canal, are two distinct bodies of water within the

meaning of the Clean Water Act even if the waters were

hydrologically connected at one time. The seepage from

the C-11 canal that SFWMD refers to could not flow

naturally from the C-11 canal to the CW 3A and the

Everglades. The S-9 pump effects an unnatural flow,

transferring polluted water from the C-11 canal through

the S-9 pump into relatively pristine Everglades water.

Therefore the pump is a point source for which a NPDES

permit is required.

30a

DONE AND ORDERED in Chambers at Ft. Lauder-

dale, Florida, this 30th day of September, 1999.

/s/ Wilkie D.

WILKIE D. FERGUSON, JR.

UNITED STATES DISTRICT JUDGE

copies provided:

Dione C. Carroll, Esq.

John E. Childe, Esq.

Douglas H. MacLaughlin, Esq.

Perla Sole-Calas, Esq.

Barbara A. Markham, Esq.

Ruth P. Clements, Esq.

3la

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MICCOSUKEE TRIBE OF Case No. 98-6056-

INDIANS OF FLORIDA, CIV-FERGUSON

Plaintiff,

vs.

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT, and

SAMUEL POOLE,

Defendants.

FRIENDS OF THE Case No. 98-6057-

EVERGLADES, CIV-FERGUSON

Plaintiff,

Vv.

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

Defendant.

FINAL SUMMARY JUDGMENT

(Filed September 30, 1999)

IN ACCORDANCE with the Order granting plain-

tiffs summary judgment [D.E. 60], it is

ORDERED AND ADJUDGED that final judgment

is hereby entered in favor of the plaintiff enjoining

SFWMD from transferring waters from the C-11 canal

through the S-9 pump into the Everglades without a

NPDES permit. Any pending motions not ruled upon are

32a

rendered moot by this final default judgment. This case

is closed.

DONE AND ORDERED in Chambers at Ft. Lauder-

dale, Florida, this 30th day of September, 1999.

/s/ Wilkie D Ferguson, Jr.

WILKIE D. FERGUSON, JR.

UNITED STATES

DISTRICT JUDGE

copies provided:

Dione C. Carroll, Esq.

John E. Childe, Esq.

Douglas H. MacLaughlin, Esq.

Perla Sole-Calas, Esq.

Barbara A. Markham, Esq.

Ruth P. Clements, Esq.

33a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-15703-CC

MICCOSUKEE TRIBE OF INDIANS

OF FLORIDA, SAM POOLE,

Plaintiffs-Appellees,

versus

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

Defendant-Appellant.

FRIENDS OF THE EVERGLADES,

Plaintiff-Appellee,

versus

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

Defendant-Appellant.

On Appeal from the United States District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion __, llth Cir.,19___, _ F.2d

34a

(Filed Jun. 21, 2002)

Before. EDMONDSON, CHIEF JUDGE, CARNES, Circuit

Judge and MUSGRAVE, Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge

in regular active service on the Court having requested

that the Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ J.L. Edmondson

CHIEF JUDGE

* Honorable R. Kenton Musgrave, Judge, U.S. Court of Interna-

tional Trade, sitting by designation.

35a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

WILLIAM K. SUTER AREA CODE 202

CLERK OF THE COURT 479-3011

August 29, 2002

Mr. James E. Nutt

3301 Gun Club Road

West Palm Beach, FL 33406

Re: South Florida Water Management District

v. Miccosukee Tribe of Indians, et al.

Application No. 02A183

Dear Mr. Nutt:

The application for an extension of time within which

to file a petition for a writ of certiorari in the above-

entitled case has been presented to Justice Kennedy, who

on August 29, 2002, extended the time to and including

October 21, 2002.

This letter has been sent to those designated on the

attached notification list.

Sincerely,

WILLIAM K. SUTER, Clerk

By /s/ Sandra Elliott Spagnolo

Assistant Clerk en

36a

NOTIFICATION LIST

Mr. James E. Nutt

3301 Gun Club Road

West Palm Beach, FL 33406

Mr. Dexter W. Lehtinen

7700 North Kendall Drive

Suite 303

Miami, FL 33156

Mr. John E. Childe

606 Pine Road

Palmyra, PA 17078

Clerk -

United States Court of Appeals for

the Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, GA 30303

37a

33 U.S.C. § 1251 Congressional declaration of goals

and policy

(a) Restoration and maintenance of chemical,

physical and biological integrity of Nation’s waters;

national goals for achievement of objective. The

objective of this chapter is to restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters. In order to achieve this objective it is hereby

declared that, consistent with the provisions of this chap-

ter -

(1) it is the national goal that the discharge of

pollutants into the navigable waters be eliminated by

1985;

* * *

(b) Congressional recognition, preservation, and

protection of primary responsibilities and rights of

States. It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate pollu-

tion, to plan the development and use (including restora-

tion, preservation, and enhancement) of land and water

resources, and to consult with the Administrator in the

exercise of his authority under this chapter. It is the policy

of Congress that the States manage the construction grant

program under this chapter and implement the permit

programs under sections 1342 and 1344 of this title. It is

further the policy of the Congress to support and aid

research relating to the prevention, reduction, and elimi-

nation of pollution, and to provide Federal technical

services and financial aid to State and interstate agencies

and municipalities in connection with the prevention,

reduction, and elimination of pollution.

38a

(g) Authority of States over water. It is the policy of

Congress that the authority of each State to allocate

quantities of water within its jurisdiction shall not be

superseded, abrogated or otherwise impaired by this

chapter. It is the further policy of Congress that nothing in

this chapter shall be construed to supersede or abrogate

rights to quantities of water which have been established

by any State. Federal agencies shall co-operate with State

and local agencies to develop comprehensive solutions to

prevent, reduce and eliminate pollution in concert with

programs for managing water resources.

33 U.S.C. § 1311. Effluent limitations

(a) Ilegality of pollutant discharges except in

compliance with law. Except as in compliance with this

section and sections 1312, 1316, 1317, 1328, 1342, and

1344 of this title, the discharge of any pollutant by any

person shall be unlawful.

* * *

33 U.S.C. § 1314. Information and guidelines.

* * *

(f) Identification and evaluation of nonpoint

sources of pollution; processes, procedures, and

methods to control pollution. The Administrato1, after

consultation with appropriate Federal and State agencies

and other interested persons, shall issue to appropriate

Federal agencies, the States, water pollution control

agencies, and agencies designated under section 1288 of

this title, within one year after October 18, 1972 (and from

time to time thereafter) information including (1) guide-

39a

lines for identifying and evaluating the nature and extent

of nonpoint sources of pollutants, and (2) processes,

procedures, and methods to control pollution resulting

from —

* * *

(F) changes in the movement, flow, or circulation of any

navigable waters or ground waters, including changes

caused by the construction of dams, levees, channels,

causeways, or flow diversion facilities.

* * *

33 U.S.C. § 1362 Definitions

Except as otherwise specifically provided, when used in

this chapter:

* * *

(6) The term “pollutant” means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded equip-

ment, rock, sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water... .

* *x *

(12) The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (A) any addition of

any pollutant to navigable waters from any point source,

(B) any addition of any pollutant to the waters of the

contiguous zone or the ocean from any point source other

than a vessel or other floating craft.

* * *

40a

(14) The term “point source” means any discernible,

confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit, well,

discrete fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other floating craft,

from which pollutants are or may be discharged. This term

does not include agricultural stormwater discharges and

return flows from irrigated agriculture.

* * *

(16) The term “discharge” when used without qualifica-

tion includes a discharge of a pollutant, and a discharge of

pollutants.

* * *

(19) The term “pollution” means the man-made or man-

induced alteration of the chemical, physical, biological,

and radiological integrity of water.

40 CFR Ch. 1 (7-1-01 Edition)

§ 122.2 Definitions.

* * *

Discharge when used without qualification means the

“discharge of a pollutant.”

Discharge of a pollutant means:

(a) Any addition of any “pollutant” or combination of

pollutants to “waters of the United States” from any “point

source,” or

(b) any addition of any pollutant or combination of

pollutants to the waters of the “contiguous zone” or the

ocean from any point source other than a vessel or other

4la

floating craft which is being used as a means of transpor-

tation.

This definition includes additions of pollutants into

waters of the United States from: surface runoff which is

collected or channeled by man; discharges through pipes,

sewers, or other conveyances owned by a State, municipal-

ity, or other person which do not lead to a treatment

works; and discharges through pipes, sewers, or other

conveyances, leading into privately owned treatment

works. This term does not include an addition of pollut-

ants by any “indirect discharger.”

Fla. Stat. § 403.0885. Establishment of federally

approved state National Pol-

lutant Discharge Elimination

System (NPDES) Program

(1) The Legislature finds and declares that it is in the

public interest to promote effective and efficient regulation

of the discharge of pollutants into waters of the state and

eliminate duplication of permitting programs by the United

States Environmental Protection agency under s. 402 of

the Clean Water Act, Pub. L. No. 92-500, as amended, 33

U.S.C. ss. 1251 et seq, and the department under this

chapter. * * *

(2) The department is empowered to establish a state

NPDES program in accordance with s. 402 of the Clean

Water Act, as amended. The department shall have the

power and authority to assume the NPDES permitting

program from the United States Environmental Protection

Agency and to implement the program, including the

general permitting program under 40 C.F.R. s. 122.28 and

the pretreatment program under 40 C.F.R. part 403, in

42a

accordance with s. 402(b) of the Clean Water Act, as

amended, and 40 C.F.R. part 123. * * * The state NPDES

permit shall be the sole permit issued by the state under

this chapter regulating the discharge of pollutants or

wastes into surface waters within the state for discharges

covered by the United States Environmental Protection

Agency approved state NPDES program. This legislative

authority is intended to be sufficient to enable the de-

partment to qualify for delegation of the federal NPDES

program to the state and operate such program in accor-

dance with federal law. * * *

Fla. Admin. Code Ch. 62-620.200 Definitions

The following words and phrases when used in this chap-

ter shall, unless the context clearly indicates otherwise,

have the following meanings: .. .

(12) “Discharge of a pollutant” means any addition of

any pollutant or combination of pollutants, as defined in

40 C.F.R. 122.2, to waters from any point source cther

than a vessel or other floating craft which is being used as

a means of transportation. This definition includes addi-

tions of pollutants into the waters from surface runoff

which is collected or channeled by man, and discharges

through pipes, sewers, or other conveyances which do not

lead to a treatment works. This term does not include an

addition of pollutants by any indirect discharger.

43a

[LOGO] Department of

Environmental Protection

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Jeb Bush David B. Struhs

Governor Secretary

22 January 1999

Ms. Barbara A. Markham, General Counsel

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

Subject: NPDES Permit for S-9 Pump Station

Dear Ms-Markham Barbara:

This is in response to your letter of November 25,

1998, regarding the S-9 pumping station in Broward

County. You requested that the Department provide you

with an opinion as to whether the District is required

under section 403.0885 of the Florida Statutes to obtain an

NPDES permit for the discharge at the S-9 pump station.

Upon reviewing the information that you submitted, it is

the Department’s position that the District is not required

to obtain a permit for the S-9 structure for the following

reasons.

NPDES Permit Program

The Clean Water Act (CWA) provides that the “dis-

charge of any pollutant by any person” is unlawful. 33

U.S.C. § 1311(a). Notwithstanding this prohibition, the

44a

CWA allows the U.S. Environmental Protection Agency

(EPA) or an approved state’ to issue a permit under the

National Pollutant Discharge Elimination System

(NPDES) program for the discharge of any pollutant so

long as the discharge meets the requirements of the CWA.

33 U.S.C. §1342(a).

The CWA defines a “discharge of a pollutant” as “any

addition of any pollutant to navigable waters from any

point source.” 33 U.S.C. § 1362(12). Therefore, under the

CWA, for an NPDES permit to be required, five elements

must be present: (1) a pollutant; (2) must be added; (3) to

navigable waters; (4) from; (5) a point source. National

Wildlife Federation v. Gorsuch, 693 F.2d 156, 165 (D.C.

Cir. 1982). _

Additionally, the Department’s own rule defines the

“discharge of a pollutant” in the same manner. Rule 62-

620.200 of the Florida Administrative Code defines “dis-

charge of a pollutant” as “any addition of any pollutant or

combination of pollutants, as defined in 40 C.F.R. 122.2, to

waters from any point source other than a vessel or other

floating craft which is being used as a means of transpor-

tation.” Under the Department’s rules, the same five

elements must be present for an NPDES permit to be

required.

The S-9 pumping station does not meet all five of

these elements and therefore, no NPDES permit is needed

for this structure.

' As you know, EPA has approved the Department’s permitting

program under section 402(b) of the CWA. Therefore, permits issued by

the Department are in lieu of NPDES permits issued by EPA.

“Addition of a Pollutant”

Because the Department does not have any rules

defining what is meant by the phrase “addition of a pollut-

ant,” we rely on the CWA and the case law interpreting

the CWA in defining what is meant by this phrase. There

is a long line of case law that has interpreted this phrase

to mean that there must be an addition, or an introduc-

tion, of a pollutant, and it must be from a point source. See

Appalachian Power Co. v. Train, 545 F.2d 1351 (4th Cir.

1976) (Constituents occurring naturally in the waterways

or occurring as a result. of other industrial discharges, do

not constitute an addition of pollutants by a plant through

which they pass); Gorsuch, supra (Addition from a point

source occurs only if the point source itself physically

introduces a pollutant into water from the outside world);

National Wildlife Federation v. Consumers Power Com-

pany, 862 F.2d 580 (6th Cir. 1988) (There is no addition of

a pollutant unless the point source discharge physically

introduces a pollutant into the water from the outside

world).

Based on the information submitted by you, the S-9

pumping station will not be “adding” any pollutants as

that phrase is defined by the above-cited cases. There is no

evidence that any oils or metals from the pump itself are

entering into WCA-3A in any detectable amounts. Thus,

this element of the definition is not met.

“From”

EPA’s interpretation regarding this element is that

that addition of a pollutant must occur “from” a point

source and not merely through a point source. See Gor-

such, 693 F.2d at 175 n.58. The courts, however, have

46a

treated this element as one requiring causation. See Dague

v. City of Burlington, 935 F.2d 1343 (2nd Cir. 1991), rev'd

on other grounds, 112 S.Ct. 2638 (1992) (Where the city’s

landfill caused pollutants to enter navigable waters, and

where those pollutants were then conveyed through a

railroad culvert into additional navigable waters, the

culvert was a point source under the CWA rendering the

city responsible under the CWA).

As you pointed out in your letter, certain pollutants

are in the water in the C-11 canal that pass through the S-

9 pump station and are discharged into the canal in the

WCA-3A. However, the S-9 pump station is not the cause

of these pollutants being in the water in the C-11. Rather,

the S-9 structure is merely transferring water from one

navigable water of the U.S. to another. As such, this

element of the definition is not met.

“Point Source”

The term “point source” isdefined by the CWA as:

any discernible, confined and discrete convey-

ance, including but not limited to any pipe, ditch,

channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal

feeding operation, or vessel or other floating

craft, from which pollutants are or may be dis-

stormwater discharges and return flows from ir-

33 U.S.C. § 1362(14). Rule 62-620.200(34), F.A.C., defines

the term “point source” in much the same way. The CWA

goes on further to define “nonpoint sources of pollution” as

pollution resulting from “changes in the movement, flow,

47a

or circulation of any navigable waters or ground waters,

including changes caused by the construction of dams,

levees, channels, causeways, or flow diversion facilities.”

The S-9 pumping station falls within the definition of a

nonpoint source of pollution, as that term is used in the

CWA, rather than a point source because it is merely

changing the movement and flow of a navigable water.

Therefore, this element of the definition also is not met.

Additionally, the Sixth Circuit court in Consumer

Power noted, as in Gorsuch, that the NPDES system

stands alongside the system of controlling nonpoint

sources of pollution and that “Congress apparently in-

tended that problems caused by dams and other flow

diversion facilities are generally to be regulated by means

other than the NPDES permitting program. Consumer

Power, at 587, 588. The S-9 facility is a flow diversion

facility and should therefore be regulated by means other

than the NPDES permitting program and it is. The De-

partment, pursuant to section 373.4596(9)(k) and (1) of the

Florida Statutes, already permits the S-9 pump station.

This permit requires that the S-9 pump station discharge

meet all state water quality standards no later than

December 31, 2006.

Conclusion

Because all five elements of the term “discharge of

pollutants” are not met, it is the Department’s position

that the S-9 pumping structure does not require an

NPDES permit for operation.

48a

If you have any questions regarding this determina-

tion, please contact either myself at (850) 488-9735 or

Jennifer Fitzwater of my office at (850) 921-9611.

Sincerely,

/s/ F. Perry Odom

F. Perry Odom

Genera! Counsel

FPO/lf

Ce: Ernie Barnett, FDEP

Jerry Brooks, FDEP

Frank Nearhoof, FDEP

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.