# Amicus Curiae Brief — South Florida Water Management District v. Miccosukee Tribe of Indians

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 957

## Text

In The
Supreme Court of the Gnited States

¢

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,
v.

MICCOSUKEE TRIBE OF INDIANS, et al.,

Respondents.
o

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit

¢

MOTION FOR LEAVE TO FILE AMICI CURIAE
BRIEF AND BRIEF FOR THE LAKE WORTH
DRAINAGE DISTRICT AND THE FLORIDA
ASSOCIATION OF SPECIAL DISTRICTS AS AMICI
CURIAE IN SUPPORT OF PETITIONER’S
PETITION FOR WRIT OF CERTIORARI

o

KENNETH G. SPILLIAS

Counsel of Record
TERRY E. LEwIs
STEPHEN A. WALKER
MICHELLE DIFFENDERFER
LEWIS, LONGMAN & WALKER, P.A.
1700 Palm Beach Lakes Blvd.
Suite 1000
West Palm Beach, Florida 33401
(561) 640-0820

Counsel for Amici Curiae,
Lake Worth Drainage District
and Florida Association
of Special Districts

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

40 v

1

MOTION OF LAKE WORTH DRAINAGE DISTRICT
AND THE FLORIDA ASSOCIATION OF SPECIAL
DISTRICTS FOR LEAVE TO FILE
AN AMICI CURIAE BRIEF

The Lake Worth Drainage District (“LWDD”) and the
Florida Association of Special Districts (“FASD”), by and
through undersigned counsel and pursuant to Rule 37.2(b)
of the Rules of the Supreme Court of the United States,
respectfully move this Honorable Court for leave to file a
Brief as Amici Curiae in support of the Petition for Writ of
Certiorari filed with this Court by the South Florida Water
Management District (“SFWMD”).

Pursuant to Rule 37.2(a), Movants sought the consent
of the opposing parties, Miccosukee Tribe of Indians and
Friends of the Everglades, to the filing of an Amici Curiae
Brief in support of the SFWMD’s Petition for a Writ of
Certiorari. Consent was withheld by the Miccosukee Tribe
of Indians. No response has been received from Friends of
the Everglades.

Movant FASD, a Florida Corporation, is an associa-
tion consisting of 89 specia’ districts in the State of Flor-
ida, including 39 of the State’s water control districts.
Movant LWDD, a member of FASD, is an independent
taxing district of the State of Florida created pursuant to
Special Act and Chapter 298, Florida Statutes. LWDD
encompasses approximately 218 square miles in south-
eastern Palm Beach County, Florida. It includes within its
boundaries, 11 municipalities, 20,000 acres of agricultural
land and is bordered on the west by the Arthur R. Mar-
shall Loxahatchee National Wildlife Refuge, otherwise
known as Water Conservation Area #1 (“WCA-1”).

2

LWDD’s water management system provides compre-
hensive flood control and water supply protection to over
700,000 residents, 20,000 acres of prime agricultural land
and 120,000 acres of urban development. It does this by
maintaining approximately 511 miles of canals, 20 major
water control structures and numerous other minor
structures. A large portion of the activities of water control
districts such as LWDD and those that are members. of
FASD is the movement of water for drainage and flood
control purposes. That movement of water often occurs
from one navigable body to another through structures
which would meet the definition of “point source” under
the Clean Water Act. These water control districts obtain
surface water management permits from State of Florida
permitting agencies, including the five water management
districts, one of which is the Petitioner, SFWMD.

The decision of the Eleventh Circuit Court of Appeals
from which SFWMD has sought a Petition for Writ of
Certiorari will, if permitted to stand, have significant
financial and operational impacts on water control dis-
tricts such as Movants subjecting them to a new and
intensive permitting process which has never before been
deemed to be required by the Clean Water Act.

Given the fact that there are now conflicting opinions
among the Circuit Courts of Appeals on the issues pre-
sented by SFWMD’s Petition for Writ of Certiorari, as well
as the fact that Movants are regulated by the non-point
source permitting process provided for in the Clean Water
Act, Movants have a significant interest in the outcome of
the Petition presently before the Court.

For these reasons, the Movants, Lake Worth Drainage
District and Florida Association of Special Districts,

3

respectfully request that this Honorable Court grant leave
to file an Amici Curiae Brief on behalf of the Petitioner,
South Florida Water Management District.

Respectfully submitted,

KENNETH G. SPILLIAS

Counsel of Record

TERRY E. LEWIS

STEPHEN A. WALKER

MICHELLE DIFFENDERFER

LEWIS, LONGMAN & WALKER, P.A.

1700 Palm Beach Lakes Blvd.

Suite 1000

West Palm Beach, Florida 33401

(561) 640-0820

Counsel for Amici Curiae,
Lake Worth Drainage District
and Florida Association of
Special Districts

TABLE OF CONTENTS
Page
MOTION FOR LEAVE TO FILE AN AMICI CU-
EET IE. eR a aA ne 1
INTEREST OF AMICI CURIAE .......00cccccccecseeseeseesees 1
SUMMARY OF THE ARGUMENT .............0cce000000000 4

ARGUMENTS FOR GRANTING THE PETITION... 6

THE ELEVENTH CIRCUIT ERRED, AND CRE-
ATED CONFLICT AMONG THE CIRCUITS, IN
FINDING THE MOVEMENT OF WATER TO BE
AN ADDITION OF POLLUTANTS FROM A
POINT SOURCE SUBJECT TO NPDES PER-

ii

TABLE OF AUTHORITIES
Page
CASES
Appalachian Power Company v. Train, 545 F. 2d
Cee cmeresicnnncsanennnisensntinttsaiemnninnnemesmnens 11

Catskill Mountains Chapter of Trout Unlimited,
Inc. v. City of New York, 273 F. 3d 481 (2nd Cir.

Committee to Save Mokelumne River v. East Bay
Municipal Utility District, 13 F. 3d 305 (9th Cir.

iri coccsnnoinnensssinininnionssneininininensemenpespeimenitiiinpmendiueneden 9
DuBois v. U.S. Department of Agriculture, 102 F. 3d
ED Sitti cintnsnenrinnenstiniinnsnetemnictaeseanaiiienteislinubanens 12

Miccosukee Tribe of Indians, Sam Poole v. South
Florida Water- Management District; Friends
of the Everglades v. South Florida Water
Management District, 280 F. 3d 1364 (11th Cir.

IIIT crneiscssenatenilienennstellinnenpannatmtendpesiaieatiaemmenitadmmenens 1
National Wildlife Federation v. Consumers Power

Company, 862 F. 2d 580 (6th Cir. 1988) ..............0006 7,11
National Wildlife Federation v. Gorsuch, 693 F. 2d

ETI, GIES TIT cicnicicntennnsnsiinntsdniniintiepeiaiamniemmedbetanneees 11

Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers, 531 U.S.

EES e eer ne nen eN ne 6
STATUTES
ey ee OI csrccrmsemnmecreeteeennemetennnn 2
ee a 6
I aaa ileal aeacinleaiatinanantialle 6

SD WEG. GRBRIGED ccccssczcvsssccsssvevscsssssnsesescsnesssnsessneenesscseasaee 9

TABLE OF AUTHORITIES
RE
33 U.S.C. §1314(fKQMF) .........ccccceeeeeees
aaa
EE ee
8
Ee
Chapter 298, Florida Statutes............
Section 403.067, Florida Statutes ......
OTHER AUTHORITIES
EPA, The Control of Pollution

Hydrographic Modifications (1973)

— Continued

Caused by

1

INTEREST OF AMICI CURIAE

Amici Curiae’, Lake Worth Drainage District
(“LWDD”) and the Florida Association of Special Districts
(“FASD”), submit this brief in support of the Petition for
Writ of Certiorari presented by the South Florida Water
Management District (“SFWMD”) seeking review of the
decision of the Eleventh Circuit Court of Appeals in
Miccosukee Tribe of Indians, Sam Poole v. South Florida
Water Management District; Friends of the Everglades uv.
South Florida Water Management District, 280 F. 3d 1364
(11th Cir. 2002).

In Florida today there are more than one thousand
independent and dependent special districts, governed by
more than 30 statutes and involving over 500 local gov-
ernments. Special districts have a long history in the State
of Florida and all were created in order to provide specific
government services to a target population. Included
among Florida’s special districts are 96 water control
districts and five water management districts.

FASD, a Florida Corporation, is an association con-
sisting of 89 special districts in the State of Florida,
including 39 of the State’s water control districts. LWDD,
a member of FASD, is an independent taxing district of
the State of Florida created pursuant to Special Act
and Chapter 298, Florida Statutes. LWDD encompasses
approximately 218 square miles in southeastern Palm

' Counsel for a party did not author this brief in whole or in part.
No person or entity, other than the amici curiae, their members, or
their counsel, made a monetary contribution to the preparation and
submission of this brief.

2

Beach County, Florida. It includes within its boundaries,
11 municipalities, 20,000 acres of agricultural land and is
bordered on the west by the Arthur R. Marshall Loxahat-
chee National Wildlife Refuge, otherwise known as Water
Conservation Area #1 (“WCA-1”).

LWDD’s water management system provides compre-
hensive flood control and water supply protection to over
700,000 residents, 20,000 acres of prime agricultural land
and 120,000 acres of urban development. It does this by
maintaining approximately 511 miles of canals, 20 major
water control structures and numerous other minor
structures. The district’s flood control discharges are
through control structures to discrete water bodies such as
Lake Worth Lagoon and the Hillsboro Canal, which are
outside the boundaries of the LWDD system, as well as a
number of lakes which are within its boundaries. The
system is also operated to provide groundwater recharge
for 24 municipal wellfields and for the prevention of salt
water intrusion. LWDD relies for its water supply on
deliveries from the U. S. Army Corps of Engineers’ Central
and Southern Florida Flood Control Project (C&SFCP),
primarily WCA-1, which is separated from the LWDD
system by a dike and three control structures, to maintain
canal levels that recharge public water supply well-fields,
to prevent salt water intrusion and to provide irrigation to
a vital agricultural area in Palm Beach County. LWDD is
the largest water control district in the State of Florida.

LWDD is one of 19 water control districts located
within Palm Beach County alone. All of these districts
utilize various major and minor water control structures
such as pumps, spillways and canals which meet the
definition of “point source” found in the Clean Water Act.
33 U.S.C. §1251 et seg.; see 33 U.S.C. §1362(14). These

- 8

districts serve both agricultural and urban needs. For
example, there is the South Florida Conservancy District
(“SFCD”). This water control district is located in the
Everglades Agricultural Area south of Lake Okeechobee.
The district’s structures (pumps) provide the SFCD with
the opportunity to withdraw water from Lake Okeechobee
for agricultural water supply needs. Likewise, these
pumps provide the district with the opportunity to dis-
charge excess water from its geographic boundaries to
Lake Okeechobee for flood control purposes. The district is
equipped with pumps on its southernmost boundary which
allows it to pump and discharge water from the Hillsboro
and North New River Canals to the south. In addition, the
SFCD is served by the S-236 pump station on the southern
border of Lake Okeechobee.

There is also the Northern Palm Beach County
Improvement District (“NPBCID”) which services an
urban area. This water control district is located in the
eastern portion of Palm Beach County and extends to the
county’s boundary with Martin County to the north. The
NPBCID is comprised of separate parcels separated by
levees, each parcel equipped with pumps that allows it to
withdraw or discharge water over district levees into
either the C-17 or C-18 canals operated by SFWMD, which
are navigable waters of the United States.

Another example of a water control district, this time
beyond the boundaries of Palm Beach County, is the
Joshua Water Control District (““JWCD”) which serves
agricultural areas. The JWCD is located in DeSoto County,
west of Lake Okeechobee. This water control district
operates under a gravity driven system using spillways,
culverts and weirs to withdraw and discharge water
throughout its boundaries. The water moves through this

4

district over a berm that delineates the district boundary
and via a weir which allows the water to pass offsite under
U.S. Highway 70. The water then moves by gravity
through Prairie Creek and ultimately to the Peace River,
both navigable waters of the United States.

LWDD and NPBCID have surface water management
permits from the South Florida Water Management
District (“SFWMD”) which cover non-point source surface
water discharges. JWCD has its permit from the South-
west Florida Water Management District. None of these
water control districts, however, have ever been required
to obtain a Section 402 National Pollution Discharge
Elimination System (“NPDES”) permit to operate. Under
the holding of the Eleventh Circuit’s decision below, and
the broad language utilized in that holding, the question,
and concern, is raised whether the LWDD and the FAS) ’s
water control district members will be required to obtain
point source permits for each of their water control struc-
tures which merely transfer water from one navigable
body of water to another. The Eleventh Circuit’s decision
below thus has a significant impact on these entities
which it is important for this Court to consider in its
determination whether to issue its writ of certiorari.

+

SUMMARY OF THE ARGUMENT

The decision below, requiring as it does a NPDES
point source permit when water containing pollutants is
transferred through a point source from one navigable
body to another, is contrary to the expressed intent of
Congress in passing the Clean Water Act. That intent,
which is to recognize, preserve and protect the primary

5

responsibilities and rights of states with regard to the use
of land and water resources, has been recognized by
Courts of Appeals including the Fourth, Sixth and the
District of Columbia Circuits and by the Environmental
Protection Agency (“EPA”), the agency charged with
enforcing the Act. Recent cases from the First and Second
Circuit Courts of Appeals, as well as the decision below of
the Eleventh Circuit, are in conflict with these prior
decisions, the language of the Act and the Congressional
intent.

If permitted to stand, the Eleventh Circuit’s opinion
below will have a significant impact on Amici Curiae and
other similarly situated governmental water control
districts in the State of Florida, requiring applications for
multiple NPDES permits contrary to long-standing poli-
cies and procedures and in conflict with the federal/state
system of preventing and reducing pollution set out in the
Clean Water Act. Given the conflicting decisions of the
various Circuit Courts of Appeals and the significant
adverse operational and economic impacts on governmen-
tal water management and water control entities in
Florida and throughout the country, review by this Court
is necessary to resolve the conflicts and clarify the reac): of
the NPDES permit requirements in the circumstances
presented.

6

ARGUMENTS FOR GRANTING THE PETITION

THE , ELEVENTH CIRCUIT ERRED, AND CRE-
ATED CONFLICT AMONG THE CIRCUITS, IN
FINDING THE MOVEMENT OF WATER TO BE AN
ADDITION OF POLLUTANTS FROM A POINT
SOURCE SUBJECT TO NPDES PERMITTING.

The impact of the Eleventh Circuit’s expansive “but
for” interpretation of the “addition ... from” element set
forth in 33 U.S.C. §1362(12) requiring a NPDES point
source permit to transfer water from one navigable body to

~ another, is vividly demonstrated by a review of the re-
quirements it would place on LWDD, the dozens of other
water control districts in the State of Florida and the five
water management districts, including SFWMD. It is a
review of these impacts on literally hundreds of govern-
mental entities which also vividly demonstrates that the
Eleventh Circuit’s interpretation is not what Congress
intended in the distinctions it made between point source
and non-point sources of pollutants and pollution.

As noted by the SFWMD in its petition, the states are
directed to address non-point source pollution but are left
to determine for themselves the nature of the steps to
take. 33 U.S.C. §§1313(b) and (e), 1329. The expressed
policy of the Congress is to recognize, preserve and protect
the primary responsibilities and rights of states not only to
prevent and reduce pollution but to plan the development
and use of land and water resources and to allocate quan-
tities of water within their jurisdictions. 33 U.S.C.
§1251(b). This Congressional intent was expressly recog-
nized by the Court in the recent decision of Solid Waste
Agency of Northern Cook County v. United States Army
Corps of Engineers, 531 U.S. 159, 174, 121 S.Ct. 675, 684
(2001). In the State of Florida, the primary vehicles for

ee.

7

exercising these rights and responsibilities are the water
management districts. Water control districts, such as
LWDD, which are permitted by water management dis-
tricts, play a similar crucial role at the local government
level in the implementation of these plans and responsi-
bilities.

To impose upon these water management entities the
requirement of a NPDES point source permit every time
water is transferred through a point source from one
navigable body to another would place an unbearable
burden on these districts, would interfere with the State’s
management of these resources and would, in essence,
preempt, by judicial fiat, the expressed intent of Congress.
Under the holding of the decision below, any transfer of
water from one body to another that introduces an already
existing pollutant would require a NPDES permit. This is
so even in those situations, as with the S-9 pump station,
where the two bodies of water would be one but for a man-
mace structure which separates them. The changes to the
movement, flow or circulation of these navigable waters
caused by the construction of man-made structures or flow
diversion facilities, are intended to be and have been
controlled by the states under non-point source procedures
and methods developed with guidance from the EPA. 33
U.S.C. §1314(f(2\F); National Wildlife Federation v. Con-
sumers Power Company, 862 F. 2d 580, 588 (6th Cir. 1988);
see also, EPA, The_Control of Pollution Caused by Hydro-
graphic Modifications (1973).

Just as the SFWMD does, LWDD and the other water
control districts in the State receive water which can, and

8

most often will, contain pre-existing pollutants’, which
were naturally occurring or added from other sources
upstream. These waters are then transferred through
structures, which meet the definition of “point-sources”,
into other navigable bodies of water without the addition
of any new pollutants or, in the case of, for example,
agricultural operations, the addition of pollutants from
exempt activities. See 33 U.S.C. §1362(14). Under the
expansive language of the decision below, a NPDES permit
would be required at each point-source where such a
transfer occurs. This would, for all intents and purposes,
usurp the State’s role in the overall management of its
water resources.

For a water control district such as LWDD, a require-
ment to obtain a NPDES point source permit for its
movement of water from one navigable surface water body
to another would impose significant financial and opera-
tional burdens. As noted, LWDD, which has a large num-
ber of water control structures and moves water to and
from a number of navigable bodies, is required to obtain a
surface water management permit from SFWMD.
Landowners within the district who discharge into the
district’s canals may also be subject to the extensive total
maximum daily load (“TMDL”) program regulatory
requirements
of Section 403.067, Florida Statutes, which addresses
surface waters that do not meet the State’s water quality

* “Pollutant” is defined in 33 U.S.C. §1362(6) as meaning “dredged
spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into water.”

9

standards. This provision of Florida law, addressing both
point source and non-point source pollution, is a state
program in accordance with the planning requirements of
Section 303(d) of the Clean Water Act. 33 U.S.C. §1313(d).

To now impose the additional regulatory requirement
of obtaining a NPDES point source permit for the transfer
of water from one body to another would place LWDD and
other water control districts in the position of not only
having to engage in a separate and costly permitting
process, but of potentially having to treat water at each
point source to remove already existing pollutants. And, at
least based on the Ninth Circuit’s view, this would be the
case even where there is no net increase in the level of
pollutants in the receiving body of water. See, Committee
to Save Mokelumne River v. East Bay Municipal Utility
District, 13 F. 3d 305 (9th Cir. 1993). The point source/non-
point source regulatory system created by the Clean Water
Act and its implementation by the state and federal
governments militate against the Eleventh Circuit's
expansive view of the NPDES permitting process and the
inordinate and unwarranted regulatory burden it would
place on state and local water management and water
control entities.

To say that a NPDES point source permit is not
required for the movement of water between waters of the
United States is not to say that the introduction of pollut-
ants into such waters is beyond regulatory authority. As
noted above, the states are authorized and even required
to address waters that do not meet state water quality
standards.

But the Clean Water Act has also been applied to
address a major source of pollutants that enter United

10

States waters — upland storm water runoff. On November
16, 1990, EPA published in the Federal Register its new
storm water NPDES regulations which established a
permitting system for storm water discharges from mu-
nicipal separate storm sewer systems (known as MS4s).
The application of this program is described in a series of
letters between LWDD, the Florida Department of Envi-
ronmental Regulation (the predecessor agency to the
present Department of Environmental Protection) and the
EPA. (App. 1-19). The EPA explained that LWDD and
other districts would be required to submit NPDES appli-
cations for storm water discharges if they owned or oper-
ated a system that met the definition of a municipal
separate storm sewer and was within one of ten listed
Florida counties (including Palm Beach County). Since
transfers of water from waters of the State and of the
United States to other waters of the State and the United
States are not considered within the MS4 permit applica-
tion requirement, LWDD was not required to apply for
such permits.

Nonetheless, the MS4 program does provide a regula-
tory vehicle for addressing the initial introduction of
pollutants from upland sources into waters of the United
States from storm water runoff, just as the NPDES point
source permit process addresses the initial discharge of
pollutants from upland sources into water from point
sources. Once these pollutants have entered the waters of
the United States, or are otherwise naturally occurring
(e.g., “biological materials”), no additional benefit is
derived from requiring point source permits every time
water is moved from one navigable water body to another,
as the Eleventh Circuit would require.

Historically, EPA has never required LWDD or other —

water control districts to obtain a NPDES point source

11

permit to transfer water from one navigable body to
another. In its exposition to LWDD of its then new storm
water discharge permit, EPA made it clear that transfer of
water from waters of the State and the United States to
other waters of the State and the United States did not
fall within those permitting requirements. While EPA had
established a new NPDES permitting system to deal with
municipal separate storm sewer systems, it did not alter
the NPDES point source permit system as it had histori-
cally been interpreted and applied — i.e., that a point
source permit is not required for the movement of the
waters of the United States between each other. To impose
such a requirement now would have a drastic impact on
extensive and far-reaching programs and systems which
have been developed and implemented within the present,

already complex, regulatory system.

The thorough and extensive discussion of the legisla-
tive history of the Clean Water Act set forth by the District
of Columbia Circuit in National Wildlife Federation v.
Gorsuch, 693 F. 2d 156 (D.C. Cir. 1982), as adopted and
followed by the Fourth and Sixth Circuits in Appalachian
Power Company v. Train, 545 F. 2d 1345 (4th Cir. 1975)
and National Wildlife Federation v. Consumers Power
Company, supra, demonstrates that the intent of Congress
in passing the Clean Water Act was not to require a
NPDES point source permit for the transfer of water
containing pre-existing pollutants from one navigable body
to another. There is nothing in Gorsuch, Consumers Power,
Appalachian Power or the language of the Clean Water Act
itself which would indicate that that situation is strictly
limited to dams. Nor, given the often similar purposes of
dams to the levees, pumps, spillways, gates and other
water management structures utilized by LWDD, Florida’s

12

water management districts and other water control
districts, is there a logical basis for any such distinction.

In its 30 years, the Clean Water Act has never been
interpreted by EPA to require a NPDES permit for the
mere transfer of water from one navigable body to another.
Surface water management systems have been established
and flood control projects constructed under state water
management programs utilizing the non-point source
permitting process to address water quality issues in such
circumstances. Nothing has changed by way of Congres-
sional enactment to modify that process. In essence, the
Eleventh Circuit’s extension of the NPDES point source
permit process, expanding on cases such as DuBois v. U.S.
Department of Agriculture, 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), is tanta-
mount to amending the Clean Water Act, a process not
properly within the ambit of judicial authority. In these
circumstances, this Court should accept jurisdiction of the
case to determine the propriety under the Clean Water Act
of the Eleventh Circuit’s far reaching change to what have
been long-standing policies and procedures which have
been implemented by the EPA, the Army Corps of Engi-
neers and, in the case of Florida, the Florida Department
of Environmental Protection, its water management
districts and its various water control districts pursuant to
the permits they receive from the State permitting agen-
cies.

13

CONCLUSION

In addition to being in conflict with decisions of the
Fourth, Sixth, and District of Columbia Circuits, the
Eleventh Circuit’s opinion below is creating confusion and
disruption in the operation of many, if not all, of the over
100 governmental water management and water control
entities in the State of Florida. Since the issuance of the
Eleventh Circuit’s opinion, two additional SFWMD pump
stations (S-2 and S-3) have become the subject of citizen
lawsuits and at least nine notices of intent to bring addi-
tional lawsuits have been filed. The prospect of litigation
over hundreds of water control structures, the uncertainty
of what circumstances require a NPDES permit and which
do not in light of the conflicting pronouncements emanat-
ing from the various Courts of Appeals, and the drastic
revisions to the permitting process which will necessarily
result from the Eleventh Circuit’s decision, will have a
profound impact on how water is managed in the State of
Florida — an impact that has not been demonstrated would
be beneficial or was intended by Congress in enacting the
Clean Water Act.

For the reasons set forth herein, as well as those set
forth in the Petition for a Writ of Certiorari, Amici Curiae

14

respectfully submit that the Petition for a Writ of Certio-

rari should be granted.

November 2002

Respectfully submitted, |

KENNETH G. SPILLIAS

Counsel of Record

TERRY E. LEWIS

STEPHEN A. WALKER

MICHELLE DIFFENDERFER

LEWIS, LONGMAN & WALKER, P.A.

1700 Palm Beach Lakes Blvd.

Suite 1000

West Palm Beach, Florida 33401

(561) 640-0820

Counsel for Amici Curiae,
Lake Worth Drainage District
and Florida Association of
Special Districts

App. 1
LWDD Board of Supervisors
LAKE WORTH C. Stanley Weaver
DRAINAGE DISTRICT Kermit Dell
John I. Whitworth III
Secretary/Manager
William G. Winters
Assistant Manager
Richard S. Wheelihan
Attorney
Perry & Schone, P.A.
13081 MILITARY TRAIL
DELRAY BEACH, FLORIDA 33484
May 7, 1991
Scott Benyon

Florida Department of Environmental Regulation
Re: NPDES/LWDD

Dear Scott:

This letter is being sent to request from your Depart-
ment a written confirmation that it is the determination of
FDER that the waters of the Lake Worth Drainage Dis-
trict are waters of the State of Florida and further that
your Department is in agreement with E.P.A. that the
Lake Worth Drainage District is not required to make
application for a permit as required by the NPDES regula-
tions.

This District was created in 1915 under a special act
of the Florida Statues (61.1747). Since that time the Lake
Worth Drainage District has operated and maintained a
system of canals which acts as a conveyance system
carrying only stormwater. This operation of Lake Worth
™rainage District is permitted by the South Florida Water
Management District in accordance with Florida Statues
Chapters 373 and 401. At no time does this District treat

App. 2

or accept direct stormwater that falls within it’s 218
square miles. All stormwater from public and/or private
systems are required to be treated prior to discharging
into our systems.

Further, the District has been required at all times to
secure permits from your agency and the Corp. of Engi-
neers to perform any works within District rights-of-way
for any type of construction. Therefore your agency and
the Corp. have always categorized the Lake Worth Drain-
age District as consisting of State and U.S. waters.

After several meetings with Roosevelt Childress, Chief
South Area Permits Unit Facilities Performance Branch
Water Management Division of E.P.A., Bart Bibler of
FDER and the Lake Worth Drainage District, it was the
consensus of these agencies’ representatives that the Lake
Worth Drainage District should not be required to make
application for eiiher phase of the NPDES permit program
since the waters of the Lake Worth Drainage District are
waters of the State of Florida and therefore are waters of
the United States.

It would be appreciated if I could receive a written
confirmation of FDER’s determination that the waters of
Lake Worth Drainage District are waters of the State of
Florida and further that it is the position of FDER that
Lake Worth Drainage District should not be required to
obtain a NPDES permit as soon as possible so I may
present your letter and the Lake Worth Drainage Dis-
trict’s position letter to E.P.A. within the immediate
future.

App. 3

If I can be of any assistance, please do not hesitate in
calling me.

Sincerely,

LAKE WORTH
DRAINAGE DISTRICT

/s/ Mark A. Perry
Mark A. Perry
Attorney for LWDD

MAP:jma

App. 4

-$LOGO) Florida Department of
Environmental Regulation

Southeast District * 1900 S. Congress Ave., Suite A °
West Palm Beach, Florida 33406

Lawton Chiles, Governor Telephone No. 407/433-2650
Carol M. Browner, Secretary

May 23, 1991

Mr. William G. Winters

Lake Worth Drainage District
13081 Military Trail

Delray Beach, FL 33484

Dear Mr. Winters:
RE: NPDES PERMIT REQUIREMENTS

We have reviewed the drainage network of the Lake
Worth Drainage District, and it is our opinion that all
waters and wetlands connected to those waters within
your system are waters of the state; and therefore are
waters of the United States. Historically, the Department
has always required permits for dredge and fill activities
within these waters. These permits have always required
that the proposed activities must meet state water Quality
Standards for Class III Waters as stated in 17-312, Florida
Administrative Rule.

I hope this letter will be of some assistance to you as
your organization deals with the Environmental Protec-
tion Agency in Atlanta. If I can be of further assistance,
please contact Marion Hedgepeth or myself at (407) 433-
2650.

App. 5
Sincerely,
/s/ J. Scott Benyon
J. Scott Benyon
Deputy Assistant Secretary

cc: Steve Hall, DER Tallahassee

Palm Beach County Department of Environmental
Resources Management

App. 6

May 29, 1991

Mr. Roosevelt Childress, Chief

South Area Permits Unit

Facilities Performance Branch

Water Management Division

United States Environmental Protection Agency
Region IV

345 Courtland Street, N.E.

Atlanta, Georgia 30365

Re: Lake Worth Drainage District, A Special Taxing
District of the State of Florida/NPDES Permit

Dear Roosevelt:

As you are aware, this office is general counsel for the
Lake Worth Drainage District, a special taxing district of
the State of Florida, located in Palm Beach County.

Enclosed you will find a copy of a letter received by

the Lake Worth Drainage District from J. Scott Benyon, .

Deputy Assistant Secretary from the Florida Department
of Environmental Regulation confirming the fact that it is
the position of the State of Florida that all waters con-
tained within the Lake Worth Drainage District system
are waters of the State of Florida, and therefore are
waters of the United States. Also, please be advised that
the Lake Worth Drainage District does not own or operate
any municipal stormwater collection system feeding into
State waters or Federal waters and therefore the Lake
Worth Drainage District does not fall within the require-
ments of being required to submit an application for a
permit under the NPDES permit program.

On behalf of the Lake Worth Drainage District, I
respectively request written confirmation from your
agency stating that the Lake Worth Drainage District

App. 7

shall not be required to submit an application for permit,
as set forth under the EPA regulations in the National
Pollutant Discharge Elimination System permit program.
Since the waters within the Lake Worth Drainage District
system are State waters and therefore Federal waters and
the Lake Worth Drainage District does not own or operate
any municipal stormwater collection system feeding into
State waters the Lake Worth Drainage District should not
be required to submit for a permit.

It would be appreciated if the Lake Worth Drainage
District could receive written confirmation from your
agency within the immediate future, setting forth the fact
that the Lake Worth Drainage District will not be required
to submit an application for a NPDES permit.

If you should have any questions regarding the
contents of this letter or if I can be of any further assis-
tance please do not hesitate in contacting this office.

Sincerely,
LAKE WORTH
DRAINAGE DISTRICT
Mark A. Perry
Attorney for L.W.D.D.
MAP:jma
Enclosure

cc: William G. Winters, Manager

App. 8

[LOGO] UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY

REGION IV

345 COURTLAND STREET, N.E.
ATLANTA, GEORGIA 30365

JUN 10 1991
REF: 4WM-FP

Mr. William Winters
Lake Worth DD

13081 Military Trail
Delray Beach, FL 33484

Dear Addressee:

Region IV of the Environmental Protection Agency (EPA)
has received several letters and calls requesting clarifica-
tion of the responsibilities and requirements of the 298
Districts (and other special districts operating in a similar
capacity), based on EPA’s new storm water National
Pollutant Discharge Elimination System (NPDES) regula-
tions which were published in the Federal Register on
November 16, 1990. Also, there appears to be some re-
maining confusion among the 298 Districts about the
options available for municipalities and 298 Districts to
group themselves to submit applications for storm water
discharges from municipal separate storm sewer systems
(MS4’s).

A 298 District (or special district) is required to submit
a MS4 application only if it owns or operates a system that
meets the definition of a municipal separate storm sewer
and is within one of the ten (10) counties listed in Attach-
ment A. (See Attachment B for the definition of a

App. 9

municipal separate storm sewer.) Waters of the State and
waters of the United States, including canals that are
considered waters of the State, are not MS4’s. Therefore,
each 298 District (or special district) should evaluate their
system based on the definition of a municipal separate
storm sewer, and make the determination of whether or
not they own or operate a MS4. If it is determined that no
MS4 is owned or operated, then no application is required.
However, if it is determined that a MS4 is owned or
operated, the 298 District is required to submit an applica-
tion for the discharges from its MS4.

In order to clarify our intent in recommending that the
county be “lead applicant”, please understand that it was
only a recommendation. We assumed the county would be
the one municipal entity that may have the resources,
expertise and contacts with all the municipalities within
the county to be able to coordinate completion of a single
MS4 application. (By definition, 298 Districts and other
special districts are considered municipalities for the
purpose of obtaining NPDES permit coverage for MS4
discharges.) All municipalities are certainly entitled to
submit an individual application; however, you must
discuss responsibilities for any shared outfalls with any
adjacent municipality. Identification as the “lead appli-
cant” carries with it no designated or implied authorities
over any other municipality in the county, whether an
application is submitted in conjunction with the “lead
applicant” or separately. All participants in the submittal
of a single application are considered co-applicants.

As a result of comments received at our individual meet-
ings with the potential municipal applicants in the coun-
ties, amy group of municipalities in a county can
participate as co-applicants; this will include Chapter 298

App. 10

Special Districts that own and operate MS4’s that are not
waters of the U.S. For Part 1 of the application, each set of
co-applicants is required to identify and sample 250 field
screening points (500 field screening points if one of the co-
applicants is listed in the aforementioned Federal Register
as a large MS4). These field screening points are to be
distributed among the co-applicants as agreed upon by
them. The five (5) to ten (10) representative sampling
locations for Part 2 of the application should be handled in
a similar manner. This is a change from our previous
requirement which offered municipalities only the follow-
ing two options for submitting MS4 applications: (1)
participate with the county and share the total number of
field screening points required for the county; or (2)
submit an individual application. The Part 1 application
deadline for all municipalities not specifically listed in the
storm water regulations is May 18, 1992, and Part 2 is due
by May 17, 1993.

If you determine that your district does not own or operate
any system or portion of a system that is described by the
definition of a municipal separate storm sewer, please
notify our office by letter. Also enclosed is a list of the
active NPDES facilities in your county for your use in
completing the MS4 application. The industrial and
municipal storm water application guidance manuals and
the lists of waterbodies with known water quality impacts
in your county, if any, will be mailed to you soon. If you or
your staff have any questions or comments please contact
the appropriate member of my staff as shown on Attach-
ment A.

App. 11

Sincerely,

/s/ Roosevelt Childress
Roosevelt Childress, Acting Chief
Permits Section
Facilities Performance Branch
Water Management Division

Enclosures

ATTACHMENT A

Listed below are the ten (10) Florida counties which are
required to submit an NPDES application for discharges
from their MS4’s (all municipalities within these counties
are required to submit MS4 discharge applications as
well). Also shown are the permit writers assigned to each
county.

County Permit Writer Telephone #
Broward Chris Thomas 404/347-3633
Dade Tammy Bradley-Moore 404/347-3866
Karrie-Joe Shell 404/347-3633
Angie Fugo 404/347-3379
Hillsborough Jeannie McNeill 404/347-2913
Brenita Richardson 404/347-3379
Palm Beach Chris Thomas 404/347-3633
Jeannie McNeill 404/347-2913
Angie Fugo 404/347-3379

Tammy Bradley-Moore 404/347-3866

App. 12

ATTACHMENT B

DEFINITION OF “MUNICIPAL
SEPARATE STORM SEWER’
Reference 40 CFR 122.26(b\8)

MUNICIPAL SEPARATE STORM SEWER means a
conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs,
gutters, ditches, man-made channels, or storm drains):

(i) Owned or operated by a State, city, town, bor-
ough, county, parish, district, association, or
other public body (created by or pursuant to
State law) having jurisdiction over disposal f
sewage, industrial wastes, including special di’ -
tricts under State law such as a sewer district,
flood control district or drainage district, or simi-
lar entity, or an Indian tribe or an authorized
Indian tribe organization, or a designated and
approved management agency under section 208
of the Clean Water Act (CWA) that discharges to
waters of the United States;

(ii) Designed or used for collecting or conveying
storm water;

(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned Treatment
Works (POTW) as defined at 40 CFR 122.2

App. 13

(LOGO)

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY

REGION IV

345 COURTLAND STREET, N.E.
ATLANTA, GEORGIA 30365

JUN 24 1991
REF: 4WM-FP

Mr. Mark A. Perry

Attorney for Lake Worth Drainage District
1308 Military Trail

Delray Beach, Florida 33484

Dear Mr. Perry:

Thank you for your letter of May 29, 1991, on behalf of
Lake Worth Drainage District. I have enclosed a copy of a
letter that was sent to all Chapter 298 and similar dis-
tricts. Lake Worth Drainage District’s letter was dated
June 10, 1991. The referenced June 10, 1991, letter states
that if a district determines it does not own or operate any
portion of a system which is considered to be a municipal
separate storm sewer (see Attachment B of the enclosed
letter), then it should provide written notice to our office of
such determination. The June 10, 1991, letter also states
that if a district makes the determination that no munici-
pal separate storm sewer system (MS4) is owned or
operated, then no MS4 application is required.

Your letter of May 29, 1991, may serve as the written
notification we are requesting. Based on your determina-
tion that Lake Worth Drainage District does not own or
operate a MS4, no MS4 application is required. If you have

App. 14

any questions please cal] Mr. Chris Thomas of my staff at
404/347-3633.

Sincerely,

/s/ Roosevelt Childress
Roosevelt Childress, Acting Chief
Permits Section
Facilities Performance Branch
Water Management Division

Enclosure (1)

App. 15

(LOGO)

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY

REGION IV

345 COURTLAND STREET, N.E.
ATLANTA, GEORGIA 30365

JUN 10 1991
REF: 4WM-FP

Mr. William Winters
Lake Worth DD

13081 Military Trail
Delray Beach, FL 33484

Dear Addressee:

Region IV of the Environmental Protection Agency (EPA)
has received several letters and calls requesting clarifica-
tion of the responsibilities and requirements of the 298
Districts (and other special districts operating in a similar
capacity), based on EPA’s new storm water National
Pollutant Discharge Elimination System (NPDES) regula-
tions which were published in the Federal Register on
November 16, 1990. Also, there appears to be some re-
maining confusion among the 298 Districts about the
options available for municipalities and 298 Districts to
group themselves to submit applications for storm water
discharges from municipal separate storm sewer systems
(MS4’s).

A 298 District (or special district) is required to submit
a MS4 application only if it owns or operates a system that
meets the definition of a municipal separate storm sewer
and is within one of the ten (10) counties listed in Attach-
ment A. (See Attachment B for the definition of a

App. 16

municipal separate storm sewer.) Waters of the State and
waters of the United States, including canals that are
considered waters of the State, are not MS4’s. Therefore,
each 298 District (or special district) should evaluate their
system based on the definition of a municipal separate
storm sewer, and make the determination of whether or
not they own or operate a MS4. If it is determined that no
MS4 is owned or operated, then no application is required.
However if it is determined that a MS4 is owned or oper-
ated, the 298 District is required to submit an application
for the discharges from its MS4.

In order to clarify our intent in recommending that the
county be “lead applicant”, please understand that it was
only a recommendation. We assumed the county would be
the one municipal entity that may have the resources,
expertise and contacts with all the municipalities within
the county to be able to coordinate completion of a single
MS4 application. (By definition, 298 Districts and other
special districts are considered municipalities for the
purpose of obtaining NPDES permit coverage for MS4
discharges.) All municipalities are certainly entitled to
submit an individual application; however, you must
discuss responsibilities for any shared outfalls with any
adjacent municipality. Identification as the “lead appli-
cant” carries with it no designated or implied authorities
over any other municipality in the county, whether an
application is submitted in conjunction with the “lead
applicant” or separately. All participants in the submittal
of a single application are considered co-applicants.

As a result of comments received at our individual meet-
ings with the potential municipal applicants in the coun-
ties, any group of municipalities in a county can
participate as co-applicants; this will include Chapter 298

App. 17

Special Districts that own and operate MS4’s that are not
waters of the U.S. For Part 1 of the application, each set of
co-applicants is required to identify anc sample 250 field
screening points (500 field screening points if one of the co-
applicants is listed in the aforementioned Federal Register
as a large MS4). These field screening points are to be
distributed among the co-applicants as agreed upon by
them. The five (5) to ten (10) representative sampling
locations for Part 2 of the application should be handled in
a similar manner. This is a change from our previous
requirement which offered municipalities only the follow-
ing two options for submitting MS4 applications: (1)
participate with the county and share the total number of
field screening points required for the county; or (2)
submit an individual application. The Part 1 application
deadline for all municipalities hot specifically listed in the
storm water regulations is May 18, 1992, and Part 2 is due
by May 17, 1993.

If you determine that your district does not own or operate
any system or portion of a system that is described by the
definition of a municipal separate storm sewer, please
notify our office by letter. Also enclosed is a list of the
active NPDES facilities in your county for your use in
completing the MS4 application. The industrial and
municipal storm water application guidance manuals and
the lists of waterbodies with known water quality impacts
in your county, if any, will be mailed to you soon. If you or
your staff have any questions or comments please contact
the appropriate member of my staff as shown on Attach-
ment A.

App. 18

Sincerely,

/s/ Roosevelt Childress, Acting Chief
Permits Section
Facilities Performance Branch
Water Management Division

Enclosures

ATTACHMENT A

Listed below are the ten (10) Florida counties which are
required to submit an NPDES application for discharges
from their MS4’s (all municipalities within these counties
are required to submit MS4 discharge applications as
well). Also shown are the permit writers assigned to each
county.

County Permit Writer Telephone #

Broward Chris Thomas 404/347-3633
Dade Tammy Bradley-Moore 404/347-3866
Duval Karrie-Jo Shell 404/347-3633
Escambia Angie Fugo 404/347-3379
Hillsborough Jeannie McNeill 404/347-2913
Orange Brenita Richardson 404/347-3379
Palm Beach Chris Thomas 404/347-3633
Pinellas Jeannie McNeill 404/347-2913
Polk Angie Fugo 404/347-3379

Sarasota Tammy Bradley-Moore 404/347-3866

App. 19

ATTACHMENT B

DEFINITION OF “MUNICIPAL
SEPARATE STORM SEWER”

Reference 40 CFR 122.26(b)(8)

MUNICIPAL SEPARATE STORM SEWER means a
conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs,
gutters, ditches, man-made channels, or storm drains):

(i) Owned or operated by a State, city, town,
borough, county, parish, district, associa-
tion, or other public body (created by or
pursuant to State law) having jurisdiction
over disposal of sewage, industrial wastes,
including special districts under State law
such as a sewer district, flood control dis-
trict or drainage district, or similar entity,
or an Indian tribe or an authorized Indian
tribe organization, or a designated and ap-
proved management agency under section
208 of the Clean Water act (CWA) that dis-
charges to waters of the United States;

(ii) Designed or used for collecting or conveying
storm water;

(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned
Treatment Works (POTW) as defined at 40
CFR 122.2.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A07. Public record. Not legal advice.