Respondents Brief — South Florida Water Management District v. Miccosukee Tribe of Indians

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—_

— NOV 144 wos

No. 02-626

IN THE

Supreme Court of the United States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA

and FRIENDS OF THE EVERGLADES, INC.,

Respondents.

On Writ oF CERTIORARI TO THE

Unitep STATES Court OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR RESPONDENT

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA

Dexter W. LEHTINEN Sonia Escosio O’ DONNELL

Counsel of Record RICHARD J. OVELMEN

Juan M. VARGAS Enrique D. ARANA

CLaupio RIEDI Topp M. FULLER

LEHTINEN, VARGAS & Ruept, P.A. Jorpen Burt LLP

7700 North Kendall Drive 777 Brickell Avenue

Suite 303 Suite 500

Miami, FL 33156-7559 Miami, FL 33131

(305) 279-1166 Dioné C. CARROLL

In House General Counsel

MICCOSUKEE TRIBE OF INDIANS

OF FLORIDA

P.O. Box 440021

Tamiami Station

Miami, FL 33144

Counsel for Respondent

Miccosukee Tribe of Indians of Florida

QUESTION PRESENTED

Petitioner pumps pollutants, contained in a drainage canal

which is a jurisdictional water of the United States, from a point

source consisting of pumps and pipes, against natural flow, into

other waters of the United States (the “Everglades Protection

Area’’), where the pollutants would not be added to the receiving

waters without the affirmative action of the instrumentality of the

pumps and pipes.

The question is whether the operation of this point source

constitutes the “addition” of a pollutant within the meaning of

“discharge” in the Clean Water Act.

TABLE OF CONTENTS

Ee ne

Statement

Act

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The Cooperative Federalism Of The

NPDES Permit System .............

The CWA Requires An NPDES Permit

For Every Point Source Discharge Of A

Pollutant (The Applicable Definitions)

The CWA’s Interdependent Regulation

Of “Point Sources” And “Nonpoint

The Everglades Protection Area ......

2. The Polluted C-11 Drainage Canal ....

_ Page

Contents

3. Petitioner's S-9 Pump Station

Discharges High Quantities Of Canal

Waters Containing Pollutants Into The

Everglades Protection Area, Against The

Natural Flow ............0eeeeeees

4. The Devastating Impact of the Discharge

of Pollutants on the Everglades

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C. The Federal Efforts To Restore The

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D. The Proceedings Below .................

Summary of Argument ............6 00sec ees

I. _ Petitioner’s Backpumping Of Pollutants From

The C-11 Canal Into The Everglades

Protection Area Requires A Permit Under The

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A. The Plain Language Of The CWA

Dictates The Lower Courts’ Conclusion

That Petitioner’s Discharges From The

S-9 Pump Station Into The Higher

Quality Surface Waters Of The

Everglades Constitutes An Addition Of

Pollutants That Requires A Permit ....

Page

Contents

1. The Meaning of the Word “Addition” .

2. The Meaning Of the Word “From”... .

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B. The Lower Courts’ Rulings Here Are

Il.

Consistent With The Structure Of The

Dl ddr atensendindmieinee tet da.

l. The Definition Of Point Source

Expressly Excludes Certain Water

Transfers But Not This One .........

2. Other Provisions Of The CWA Make

Clear That Point Sources Need Not

Originate Or Produce Pollutants ..... .

The Holdings Of Other Lower Courts

Regarding The Meaning Of “Addition,”

Including The “Dam Cases,” Are Consistent

With The Eleventh Circuit’s Decision .... .

The Petitioner And The Solicitor General Are

Asking For Judicially Created Exemptions To

PES Nacopakteavaneedudassuecesce

A. Section 304(f) Does Not Exempt

Petitioner From The NPDES Permit

Pe ou Gonnndeckeasdanchus

Page

Contents

B. The Solicitor General’s “Singular

Waters” Argument Is Inconsistent With

The Plain Meaning Of The CWA .....

C. Neither Sections 101(g), Nor § 202(2),

Nor The “Traditional Powers Of The

States” Exempt Petitioner From The

NPDES Permit Requirements. .......

D. The Rule Of Lenity Has No Application

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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. The CWA’s Permit Requirements in This

Case Are Consistent with Principles of

Federalism and Do Not Interfere with

“Traditional Powers” of the States ....

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 ...

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Page

TABLE OF CITED AUTHORITIES

Page

Cases:

Alabama Rivers Alliance v. F-E.R.C., 325 F.3d 290

DL deineeddeusduandeddeceecebs 25

Amigos Bravos v. EPA, 324 F.3d 1166 (10th Cir.

Dy abddcdscehadsaddnneueusneuuaieesuas 19

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ...... 2,3

Avoyeless Sportsmen's League, Inc. v. Marsh, 715

ree 32

Barnhart v. Sigmon Coal Company, Inc., 534 U.S.

SEED bunndcuvnnedincedsebednusdeedse 14, 21

Catskill Mountains Chapter of Trout Unlimited, Inc.

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

pen eneenineneenessudsceucbodees ene 20, 24-25, 42

Chevron, U.S.A., Inc. v. National Resources Defense

Council, Inc., 467 U.S. 837 (1986) ........... 27

City of Milwaukee v. Illinois and Michigan, 451 U.S.

PEE sedecudnchengneudeucases 13, 15, 18, 19

Committee to Save Mokelumme River v. East Bay

Municipal Utility District, 13 F.3d 305 (9th Cir.

EDGE Seecdsesapebeandekedesidiueeseecses 25

vil

Cited Authorities

Page

Crandon vy. United States, 494 U.S. 152 (1990) ... 37

Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.

1991), rev'd in part on other grounds, 505 U.S.

Se GED cvcneenssccenansenenecéseuneses 25

Deaton v. United States, 209 F.3d 331 (4th Cir. 2000)

pentsecdeucdutdeess>ss¢eceenncneneneases 32

Dubois v. United States-Department of Agriculture,

102 F.3d 1273 (ist Cir. 1996) ................ 25, 31

EPA v. California ex rel. State Water Resorces

Control Board, 426 U.S. 200 (1976) ....... 1, 2, 3, 37

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d

SEG EEE ccccccucscuseseveevecess 19

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

SD cccccvccbcnccdsbcevceqessoesseseees 2, 39

League of Wilderness Defenders/Blue Mountains

Biodiversity Project v. Forsgren, 309 F.3d 1181

SE MED copcnesoccsesvanavecuesveens 5

Miccosukee Tribe v. SFWMD, No. CIV 98-6056,

1999 WL 33494862 (S.D. Fla. Sept. 30,1999)... = Il

Miccosukee Tribe v. United States, No. CTV 95-0533,

1998 WL 1805539 (S.D. Fla. Sept. 14, 1998) ... 6

vill

Cited Authorities

Page

National Wildlife Federation v. Gorsuch, 693 F.2d

SP GUD aexesseceetonwcbauncnes 26, 41

National Wildlife Federation v. Consumers Power

Company, 862 F.2d 580 (6th Cir. 1988) ....... 26, 41

Natural Resources Defense Counsel v. EPA, 966 F.2d

SP SUED ebcduekdvbenensdbeckedes 22

Northern Plains Resource Council v. Fidelity

Exploration -& Development Co., 325 F.3d 1155

Se ED 6.66040 Sb-edesdesenkacesses 16, 25, 36

Owasso Indepependent School District v. Falvo, 534

i ED seneaceveseunsnacsseseesens 21

Perrin v. United States, 444 U.S. 37 (1979) ...... 17

Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002)

pede SAdnECRN dL éNeesdebeneseusennasedabas 20-21

PUD No. 1 of Jefferson County v. Washington

Department of Ecology, 511 U.S. 700 (1994) .. passim

Robinsor v. Shell Oil Co., 519 U.S. 337 (1997) ...14, 17

Rybacheck v. EPA, 904 F.2d 1276 (9th Cir. 1990)... 22

Sierra Club v. Abston Construction. Co., Inc., 620

es ES SEED Sccntedcdncdcumenteess 28

Cited Authorities

Page

Sierra Club v. Meiburg, 296 F.3d 1021 (11th Cir.

SED: codasanddeenedescedecscnnscubeunses 36

Solid Waste Agency of Northern Cook County v.

United States Army Corps Of Engineers, 531 U.S.

PP PPPrrrrrrrrrrrrrrrrrTr ire 32, 33, 35

Train v. City of New York, 420 U.S. 35 (1975) .... 2

Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir.

_ PPPPPTTOTTTITITITTTT TTT TT Te 28

United States v. Earth Sciences, Inc., 599 F.2d 368

COR GER TOGED cc ccccccccvesvccsoescesss 28, 29, 30

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

1908 CRB Cle EGGS) onc cccccccccccccccsees 32

United States v. SFWMD, 847 F. Supp. 1567 (S.D.

Fla. 1992), aff'd in part and rev'd in part, 28 F.3d

booy() te 3, SP rerrrrrrrrrr rrr 9,10

United States v. Shabani, 513 U.S. 10 (1994) ..... 38

United States v. Thompson/Center Arms Co., 504

ODE. SEB CUSSED cc ccccdecccccccccvecceseces 37

Cited Authorities

Page

Statutes:

LS a em, 1, 2, 34

ee ED 3346 04 Ce ieeeedeeenarnveareds 5

ge rrr rer Serer rrr passim

gk Fe ne er ee 2, 5, 29, 36

BP Walire § OPES cs isvessivecconvccevastvess 2, 5,27

ho néivecedeeniedeuteddbddneees 3, 37

33 US.C. Dae cavesesess4setadeieseedss 5

a EE Sok inhde ds nnsdeeceshessives passim

EE A errr rrr Terr err errr cre passim

Water Resources Development Act of 1996,

Pub. L. No. 104-303 § 528(b)(4)(B) .......... 11, 39

Water Resources Development Act of 2000,

Pub. L. No. 106-541, § 602(a), 114 Stat. 2693 .. 6

Water Resources Development Act of 2000,

Dn ivcedeeuseennaaeteseeen We eeeees 11, 39

Water Resources Development Act of 2000,

DED nddescuddcnunseuvcassue sa ates 9

———“ —

Cited Authorities

Page

Pla. Stat. 6 STS.11G ... cc cccccccccsvcceccvece 20

Pla. Stat. 6 S7S.118 0... cc cvccccccvcscceveces 20

Pie. Beat. 6 STDBES onc cccccvcccvccsececscess 20

Pla. Stat. 6 STB.ASG2 on. ccc cccccccccvvccccsces 10

Fla. Stat. § 373.4592(4)(e) .....-e cee ee cece eee 10

Fla. Stat. § 373.4592(4)(e)(2) . 6... - ee eee eee eee 36, 45

Fla. Stat. § 373.036(2)(d)(3) .... 6... eee eee eee 20

Rules:

40 C.F.R. § 122.2 (2002) ....... cee eee ee renee passim

40 C.F.R. § 122.4 (2002) ....... cece cece ee eeee 3

40 C.F.R. § 122.23 (2002) ....... cece eee eeeee 5, 28

40 C.F.R. § 122.24 (2002) .......ce cece eeeneee 28

40 C.F.R. § 122.25 (2002) ....... cece eeeeeeee 43

40 C.F.R. § 122.26 (2002) ........- eee eeees 5, 23, 28

40 C.F.R. § 122.27 (2002) ....... eee eee eeeeee 5, 28

xii

Cited Authorities

GPC Toe © ERA O COU cnn ccc ccccctecesoces

pe Be FO:

ee | RO er

118 Cong. Rec. 10,203, 10,251 (1972) ..........

118 Cong. Rec. 10,206 (1972) ..........0......

Other Authorities:

http://www.epa. gov/region4/water/tmdl/florida/

index.htm, pp. 1-6, 113, 148 the South New River

Canal (WID # 3277A) ........... 00.00 ecaeee

Burns & McDonell, Final Report: Everglades

Protection Area Tributary Basins Long Term Plan

For Achieving Water Quality Goals (“Long Term

Plan”) available at <http://www.sfwmd.gov /org/

erd/bsfboard/waterquality.pdf> at 6-86 (last

visited Nov. 7, 2003) ...............e eee eeee

EPA, Decision of General Counsel, No. 21,

I ee

Everglades Protection Area Tributary Basins

Conceptual Plan for Achieving Long-Term Water

Quality Goals Final Report, Executive Summary,

rr eer ee

Page

xii

Cited Authorities

Page

A LeGisLaTivE History OF THE WATER POLLUTION

ControL Act AMENDMENTS OF 1972, Committee

on Public Works, 93% Cong., 1* Sess. (1973) ... 1-2

3 LecisLaTive HistorY OF THE CLEAN WATER ACT OF

1977, Serial No. 95-14 at 532 (Comm. Print 1978)

Pe rrr TES Te Terre 34, 35

William H. Rodgers, Jr., The Miccosukee Indians and

Environmental Law: A Confederacy of Hope, 31

Envt’l. L. Rptr. 10918 (Aug. 2001) ........... 6-7

2 William H. Rodgers, Jr., Environmental Law:

Air and Water § 4.10 at 148 (1986) ........... 19

2 William H. Rodgers, Jr., Environmental Law:

Air and Water § 4.10 at 158 (1986) ........... 18

2 William H. Rodgers, Jr., Environmental Law:

Air and Water § 4.22 at 324-30 (1986) ........ 29

U.S. EPA NPDES Permit Writers’ Manual,

Chapter 2, p.10, Environmental Agency of

Wastewater Mah. 2... cece cccscsctecccccesens 22

Webster’s Third New International Dictionary

Urarbiend, D6 (ISS) 2... cc ccccccssccceuces 28

xiv xv

TABLE OF APPENDICES Appendices

Page Page

Appendix A — SFWMD Map captioned, Appendix E — SFWMD 2005 yh sony

“Everglades Protection Area,” available at Consolidated Report, Executive Summary,

{

www.dep. state. fl.us/evergladesforever/progress/ | Chapter 8A, chart captioned, “Achieving

map.htm (last visited 11/12/03) .............. la Everglades Water Quality, Mandated Time

Frames,” at 26, available at www.sfwmd.gov/org/

Appendix B— SFWMD Brochure entitled “Everglades ema/everglades (last visited 11/12/03) ........ Sa

Program”, Map captioned, “Everglades Protection

Area & Surrounding Areas” .................. 2a Appendix F — SFWMD 2002 Everglades

Consolidated Report, Executive Summary,

Appendix C — SFWMD Map captioned, “Figure ES- Chapter 8B, photograph ge See

1. Overview of the Everglades Protection Area County, Florida, at 25, available at www. nd. P

and Tributary Basins”, Burns & McDonnell, Final gov/org/ema/everglades (last visited 11/12/03) ... a

Report: Everglades Protection Area Tributary . —_— 7

Basins, Conceptual Plan for Achieving Long-Term Appendix G — SFWMD | Mita ades”

Water Quality Goals, Executive Summary, dated Consolidated Report, Executive —,

March 17, 2003, at ES-3, available at http:// Chapter 8B, photograph of western pine

exchange.law.miami.edu/everglades/restore/ ) County, Florida, at 28, available at ere md. '

FinalConceptual/finalconceptual _031703%20 gov/org/ema/everglades (last visited 11/12/03) ... a

(3.43mb).pdf (last visited 11/12/03) .......... 3a

Appendix D — SFWMD 2002 Everglades

Consolidated Report, Executive Summary,

Chapter 8A, chart captioned, “Achieving

Everglades Water Quality, Everglades Forever Act

Timelines”, at 24, available at www.sfwmd.gov/ ,

org/ema/everglades (last visited 11/12/03) ..... 4a

STATEMENT

The Clean Water Act (“CWA”)' prohibits the “discharge

of any pollutant” without a permit. 33 U.S.C. §§ 1311, 1342.

The South Florida Water Management District (“Petitioner”)

operates the S-9 pump station, which discharges massive

quantities of pollutants, withdrawn from a drainage canal,

into the pristine waters of the Everglades Protection Area

without a permit. The Miccosukee Tribe of Indians of Florida

(“Tribe”) and Friends of the Everglades sued under the CWA

to require the Petitioner to obtain a permit. The Petitioner

argued below that the S-9 pump station does not require a

permit because the pollutants it discharges are not produced

by the S-9 itself but instead are withdrawn from the already

polluted drainage canal. The lower courts correctly held that

Petitioner’s argument is contrary to the plain language, and

would defeat the express purpose, of the CWA.

A. The Regulatory Structure Of The Clean Water Act

The CWA was a major transformation in the nation’s

approach to water pollution. See EPA v. California ex rel.

State Water Res. Control Bd., 426 U.S. 200, 201-09 (1976).

The Act was “prompted by the conclusion of the Senate

Committee on Public Works that ‘the Federal water pollution

control program has ... been inadequate in every vital

aspect,”” id. at 203, and a federally-controlled permit system

based on effluent limitations was regarded as the remedy.

A Legislative History of the Water Pollution Control Act

1. See Federal Water Pollution Control Act, commonly

known as the Clean Water Act, 86 Stat. 816, as amended, 33 U.S.C.

— § 1251 et seq.

Amendments of 1972, Committee on Public Works, 93”

Cong., 1* Sess. (1973), (“2 Leg. Hist.”) at 1426.

1. The Cooperative Federalism Of The NPDES

Permit System

The CWA “anticipates a partnership between the States

and the Federal Government, animated by a shared objective:

‘to restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.”” Arkansas v. Oklahoma,

503 U.S. 91, 101 (1992) (quoting 33 U.S.C. § 1251(a)).

The CWA establishes “a comprehensive program for

controlling and abating water pollution,” Train v. City of New

York, 420 U.S. 35, 37 (1975), and declares the “national goal

that the discharge of pollutants into the navigable waters be

eliminated. . . .” 33 U.S.C. § 1251(a)(1).

The statute provides two sets of water quality controls.

See Arkansas, 503 U.S. at 101. “‘Effluent limitations’ are

promulgated by the EPA and restrict the quantities, rates,

and concentrations of specified substances which are

discharged from point sources-’ /d. (quoting §§ 1311 &

1314). “Water quality standards” are promulgated by the

States with substantial guidance by the EPA, and “establish

the desired condition of a waterway.” /d.; 33 U.S.C. § 1313;

40 C.F.R. part 131 (2002).

“The primary means for enforcing these limitations and

standards” is the National Pollutant Discharge Elimination

System (“NPDES”). Arkansas, 503 U.S. at 101; California,

426 U.S. at 205; see also Int'l Paper Co. v. Ouellette, 479

U.S. 481, 489 (1987). “An NPDES permit serves to transform

generally applicable effluent limitations and other standards

including those based on water quality into the obligations

(including a timetable for compliance) of the individual

discharger. . . .” California, 426 U.S. at 205 (citing 33 U.S.C

§ 1319). NPDES permits allow polluters, who obtain a

permit, to discharge a specified amount of the pollutant at

levels below thresholds incorporated into the permits.

See 33 U.S.C. § 1342. The permits are designed to allow

the lowest level of discharge technologically feasible.

See 33 U.S.C. § 1311(b)(1(A)-(C); see also 40 C.F.R.

§ 122.4(a), (d) (permits must ensure compliance with water

quality requirements).

The EPA has the authority in the first instance to issue

NPDES permits. See 33 U.S.C. § 1342(a)(1). However,

consonant with its policy to recognize, preserve and protect

the primary responsibilities and rights of States, to prevent,

reduce and eliminate pollution, Congress provided that each

State may establish and administer its own permit program

if the program conforms to federal guidelines and is approved

by the Administrator of the EPA. See 33 U.S.C. § 1342(b);

Arkansas, 503 U.S. at 102. The EPA retains the authority to

review the operation of a State’s permit program, and each

permit issued by a State is subject to EPA review for

conformity with the guidelines and requirements of the

CWA. See California, 426 U.S. at 208 (citing 33 U.S.C.

§§ 1342(d)(1), (2) & (3)).

2. The CWA Requires An NPDES Permit For

Every Point Source Discharge Of A Pollutant

(The Applicable Definitions)

Congress clearly defined what sources of pollution would

be controlled under the NPDES program. The CWA prohibits

the “discharge of any pollutant” without an NPDES permit.

33 U.S.C. §§ 1311, 1342. “Discharge of a pollutant” is

defined as “any addition of any pollutant to navigable waters

from any point source.” 33 U.S.C. § 1362(12)(a).2 The EPA

regulation further clarifies “discharge of a pollutant” as

including additions of pollutants into waters of the United

States from “surface runoff which is collected or channelled

by man; [and] discharges through pipes, sewers or other

conveyances owned by a State, municipality, or other

person which do not lead to a treatment works. .. .” 40 C_F.R.

§ 122.2

“Pollutant” is defined very broadly to include “dredged

spoil, solid waste, incinerator residue, filter backwash,

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.”

below that the water which the S-9 pump station discharges

contains pollutants. J. App. at 154, 4 72; Pet. App. at 4a-Sa,

29a; see also District’s Brief in Miccosukee Tribe v. SFWMD,

No. 00-15703, at 8. “Navigable waters” is defined as the

“waters of the United States.” 33 U.S.C. § 1362(7). It was

undisputed below that the Everglades Protection Area, into

which the pollutants are discharged, constitute navigable

waters. /d.; Pet. App. at Sa.

The CWA defines a “point source” as “any discernible,

confined and discrete conveyance, including but not limited

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

fissure, container, rolling stock, concencrated animal feeding

operation, or vessel or other floating craft, from which

2. The CWA does not define the words “addition” or “from.”

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

The EPA regulation identifies pipes as classic examples of

point sources. See 40 C.F.R. § 122.2. Petitioner admitted

below that the S-9 pump station is a point source, see District

Brief in Miccosukee Tribe v. SFWMD, No. 00-15703 at 8,

and the Eleventh Circuit accepted that undisputed fact. Pet.

App. at 4a-Sa (“No party disputes that the S-9 pump station

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

constitute a point source. . . .”).

3. The CWA’s Interdependent Regulation Of “Point

Sources” And “Nonpoint Sources”

Point sources of pollutants include all “discrete

conveyances” because they may be effectively regulated by

a permit system. Accordingly, every point source discharge

must have an NPDES permit. See 33 U.S.C. § 1342. Nonpoint

sources are diffused sources of pollutants, not associated with

a discrete conveyance, which are therefore more difficult to

regulate through permits.’ Nonpoint sources are generally

regulated under state water quality management programs

with EPA guidance. See 33 U.S.C. §§ 1313, 1329.

The CWA lists certain categories of activities which

may cause nonpoint source pollution. See, e.g., 33 U.S.C.

§§ 1288, 1314(f), 1329. However, these activities are not

excluded from point source regulation if they in fact involve

discharges of pollutants from discrete conveyances. See e.g.,

40 C.F.R. §§ 122.2, 122.23, 122.26, 122.27. This is because

under the CWA, regulatory controls of “point source” and

3. See, e.g., League of Wilderness Defenders/Blue Mountains

Biodiversity Project v. Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002)

(nonpoint sources are diffused sources not associated with a discrete

conveyance).

“nonpoint source” pollutants work in concert to effectuate

the CWA’s ultimate goal of eliminating the discharge of

pollutants into navigable waters of the United States.

B. The Facts Of This Case

1. The Everglades Protection Area

“The Everglades is an extensive and unique wetlands

system consisting of millions of acres of shallow sawgrass

marshes, wet prairies, aquatic sloughs, and tree islands.”

See Miccosukee Tribe v. United States, No. CIV 95-0533,

1998 WL 1805539, at *2 (S.D. Fla. Sept. 14, 1998).

The area provides a home for unique wildlife such as wading

birds, and threatened and endangered species such as wood

storks, snail kites, bald eagles, Florida panthers and

American crocodiles. /d. Congress has identified the

Everglades as an important environmental “treasure” that

“includes uniquely-important and diverse wildlife resources

and recreational opportunities.” Water Resources

Development Act of 2000 (“WRDA 2000”), Pub. L. No. 106-

$41, § 602(a), 114 Stat. 2693.

The Everglades Protection Area includes WCA 3A and

Everglades National Park, a 1.5 million acre International

Biosphere Preserve, a World Heritage site, and a wetland of

international significance that is home to numerous

threatened and endangered species. See maps of area, Tribe's

App. la-3a; J. App. at 147. It is also home to the Tribe.‘

See generally William H. Rodgers, Jr., The Miccosukee

4. The Tribe has a perpetual lease and nghts to reside in, practice

religious rites, and use most of WCA 3A, (where the S-9 discharges).

J. App. at 187.

Indians and Environmental Law: A Confederacy of Hope,

31 Envt’l. L. Rptr. 10918 (Aug. 2001). The Everglades ts an

oligotrophic wetlands system that is phosphorus-limited and

phosphorus-sensitive. Pet. App. at 16a; J. App. at 154. The

level of phosphorus is the defining chemical characteristic

of the Everglades system and the addition of phosphorus

above natural levels causes an imbalance in flora and fauna.

Pet. App. at 16a-17a; J. App. at 154-55.

2. The Pelluted C-11 Drainage Canal

In the early 1900's, the Army Corps of Engineers began

digging the C-11 drainage canal (the “C-11 Canal”) to

facilitate the draining of the western portion of Broward

County, which is part of the C-11 Basin. Pet. App. at 3a.

In the 1950's, the L-37 and L-33 levees were constructed to

permanently separate the C-11 Basin and Canal from the

Everglades Protection Area to the West. Pet. App. at 3a.

The C-11 Canal and the Everglades Protection Area are thus

separate bodies of United States waters. Pet. App. at 28a.

The C-11 Canal collects polluted stormwater runoff from

urban, suburban, residential, commercial and agricultural

nonpoint sources in the C-11 Basin. J. App. at 114-15, 168-

69, 172 4 18. As a result, the water in the C-11 Canal contains

high levels of pollutants, such as phosphorus, and is of much

lower quality than the waters in the Everglades Protection

Area, where it is discharged. /d. at 114-15, 168-69."

5. http://www.epa.gov/regiond /water/tmdl florida/index. him,

pp. 1-6, 113, 148 (the South New River Canal (WID # 3277A) -

known as C-11- is impaired as to nutrients, coliforms and dissolved

oxygen).

3. Petitioner’s S-9 Pump Station Discharges

High Quantities Of Canal Waters Containing

Pollutants Into The Everglades Protection Area,

Against The Natural Flow

The S-9 pump station is comprised of three massive

transmission pipes powered by huge diesel engines, J. App.

at 153; Strowd Dep. at 52, 81, that lift polluted water from

the C-1 | Canal and discharge it, against its natural flow, into

the pristine Everglades Protection Area, at the rate of 960

cubic feet per second per pipe. P. App. at 7a-8a, 17a n.5;

see also Strowd Dep. at 50-51. The structure is owned,

operated, controlled and maintained by Petitioner and

connects the C-11 Canal to the L-33 and L-37 Levees. J.

App. at 147; Pet. App. at 3a.

Petitioner has installed this point-source discharge

facility at a far west upstream point in the C-11 Canal and

has operated this structure in a way that totally disrupts the

norma! eastward flow of the canal. Instead of allowing the

canal water to naturally move towards the east, the S-9 pump

station reverses the natural flow, backpumps “against a

gradient” or “against what would flow naturally the other

direction, or another direction,” and disposes the polluted

water to the west, where it would not have flowed otherwise.

Pet. App. at 7a-8a; J. App. at 67, 150, 161. It is undisputed

that the water discharged from the S-9 point source contains

“pollutants.” Pet. App. at 4a-Sa.

4. The Devastating Impact of the Discharge of

Pollutants on the Everglades Protection Area

The discharge of pollutants from the S-9 point source

has a severe adverse impact not only on the water quality

but also on the flora and fauna of the Everglades. Pet. App.

at 16a-17a; J. App. at 167-68. The Tribe’s expert, Dr. Ron

Jones, also a leading United States government expert witness

in the landmark Everglades case,° J. App. at 164, 165 4 9,

concluded that severe harm is being done to the receiving

waters from the S-9 pump station and that the destruction

caused by excess phosphorus in the Everglades is irreversible.

J. App. at 154-56, 167-68. The backpumping from the

S-9 pump station adds phosphorus at high levels to the

phosphorus sensitive Everglades system. /d. As a result of

the excess pollutants, the areas immediately surrounding the

S-9 pump station are highly degraded. /d. Furthermore,

Petitioner’s massive backpumping greatly increases the

velocity of the water, causes a resuspending of sediments

off the bottom of the C-11 Canal, and integrates these

sediments, which include phosphorus, heavy metals,

pesticides and herbicides, into the water discharged into the

Everglades Protection Area. J. App. at 124-25, 163; Jones

Dep. at 73-78; see also Bechtel Dep. at 87 (pesticides have

been detected at the S-9).

C. The Federal Efforts To Restore The Everglades

Because the Everglades is a national “treasure” which is

“critical to the regional economy,” there is a strong federal

interest in its preservation. WRDA 2000, § 602(a)(1), (2).

In 1988, the United States sued the Petitioner alleging that it

allowed farm runoff waters, polluted with phosphorus, to

be released into the Everglades thereby damaging and

endangering the native plant and animal life of that wetlands

system. See United States v. South Fla. Water Mgmt. Dist.

(“SFWMD II”), 847 F. Supp. 1567, 1569 (S. D. Fla. 1992).

The suit resulted in a 1992 Consent Decree which established

6. See United States v. SFWMD, 847 F. Supp. 1567 (S.D. Fla.

1992), aff'd in part and rev'd in part, 28 F.3d 1563 (11th Cir. 1994).

an “ambitious strategy to restore and preserve the Everglades

ecosystem.” SFWMD II, 847 F. Supp. at 1569. The Decree

established “interim and long-term phosphorus concentration

limits for the [Everglades] and delineates specific remedial

programs designed to achieve these limits.” /d. On April 27,

200i, the Consent Decree was modified to incorporate

the Florida Everglades Forever Act of 1994 (the “EFA”),

Fla. Stat. § 373.4592, which amended certain compliance

deadlines regarding phosphorus reductions and required

discharges to meet water quality standards by 2006.

See SFWMD II, No. 88-1886-CIV-Hoeveler, D.E. 1623

(Omnibus Order dated April 27, 2001). Recent legislation in

2003 enacted “moderating provisions” authorizing discharges

which do not meet water quality standards until 2016.

Fla. Stat. § 373.4592(4)(e).’? Moreover, this same 2003

legislation adopted a plan which does not contemplate full

completion of water quality goals for the C-11 Basin until

2036."

The Comprehensive Everglades Restoration Plan

(“CERP”), was adopted in WRDA 2000 when Congress

authorized Everglades restoration. WRDA 2000 is

specificaliy premised upon the State achieving water quality

standards as a pre-CERP condition. No provisions of WRDA

2000 changed this assumption or exempted the State from

meeting water quality standards in advance of, and separate

7. See also Everglades Protection Area Tributary Basins

Conceptual Plan for Achieving Long-Term Water Quality Goals Final

Report, Executive Summary, dated April 17, 2003 at ES-9.

8. See Burns & McDonell, Final Report: Everglades Protection

Area Tributary Basins Long Term Plan For Achieving Water Quality

Goals (“Long Term Plan”) available at http://www. sfwmd.gov /org/

erd/bsfboard/waterquality.pdf at 6-86 (last visited Nov. 7, 2003).

from, CERP. (Restudy at H-F-17). Plans involving Everglades

restoration recognize that the Everglades need protection and

provide directives on water quality issues. These plans do

not substitute for the point source permitting structure of the

CWA. Indeed, they expressly require compliance with any

applicable federal law. See WRDA 2000 § 601 (i(3); WRDA

1996 § 528(b)(4)(B).

D. The Proceedings Below

The trial court granted summary judgment in favor of

the Tribe, finding that “undisputedly water containing

pollutants is being discharged through S-9 from C-11 waters

into the Everglades, the latter being a separate body of

United States water with a different level of water quality.””

The trial court found that it was not necessary that the S-9

pump station be the originator of the transferred pollutants

because “there is no doubt in this case, and it is uncontested

by the parties, that S-9 is discharging pollutants into the

Everglades. That the pollutants are not formed solely by S-9

is immaterial in a plain reading of the Act.” Pet. App. at 29a.

On appeal the Eleventh Circuit explained that “[t}he

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.” Pet. App.

at Sa. In upholding the grant of summary judgment by the

trial court, the Eleventh Circuit concluded that an addition

from a point source occurred because the point source was

the cause-in-fact of the release of pollutants into navigable

waters. /d. at 8a and 8a n.8. The Eleventh Circuit agreed

9. The Petitioner's Appendix at 28a misquotes this portion of

the trial court’s order. See Miccosukee Tribe v. SFWMD, No. CIV

98-6056, 1999 WL 33494862, at *6 (S.D. Fla. Sept. 30, 1999).

with the trial court that for there to be an addition under the

CWA’s definition of discharge of pollutants, the S-9 pump

station did not have to be the originating source of the

pollutants. Pet. App. at 7a n.6.

SUMMARY OF ARGUMENT

1. The plain and unambiguous language of the

CWA prohibits the “discharge of any pollutant” without an

NPDES permit, and expressly defines such discharges as

“any addition of any pollutant to navigable waters from any

point source.” 33 U.S.C. §§ 1311, 1342, and 1362(12)(A).

Because the Petitioner backpumps pollutants in water from

the C-11 Canal into the Everglades Protection Area, the plain

meaning of the clear text of the CWA requires that Petitioner

obtain an NPDES permit. The S-9 pump station is admitted

to be a “point source;” the pumped water is acknowledged

to contain “pollutants;” and there is no dispute that the

Everglades Protection Area are navigable waters.

Backpumping pollutants into the Everglades Protection Area

which would not otherwise appear there, is an “addition”

under any common, or technical, meaning of the word. That

is all this Court need consider to resolve this case. If more

were needed than the plain meaning of the text, the express

Congressional purpose of the CWA as stated in the statute,

as reflected in its structure, and as articulated by this Court,

mandates this construction of the text.

2. Petitioner and the Solicitor General essentially are

requesting this Court to create nonstatutory exemptions to

the CWA that are contrary to the plain meaning of its text, its

purpose, its legislative history, and prior construction by the

EPA and the Solicitor General himself. The Petitioner would

have this Court rewrite the text of the CWA to provide that

an NPDES permit is required for “any addition of any

pollutant to navigable waters from any point source, unless

the pollutant is not produced by the point source itself.”

But the text contains no such condition, and creating it

would defeat the legislative purpose to “establish an all-

encompassing program of water pollution regulation”

in which “{e]very point source discharge is prohibited unless

covered by a permit... .” City of Milwaukee v. Illinois &

Michigan, 451 U.S. 304, 318 (1981) (footnote omitted)

(emphasis in original). Similarly, the Solicitor General

suggests the Court rewrite the operative language of the CWA

to state a permit must be obtained for “any addition of any

pollutant to navigable waters from any point source, unless

the pollutant originates from some already-polluted

navigable water.” Under the Solicitor General’s absurd

suggestion, all of the waters of the United States cou'd be

polluted from a single source of polluted water so long as

that point source did no more than “convey” the polluted

water from a polluted navigable source. It is difficult to

imagine a rewriting of the text more at odds with the statutory

purpose of controlling and ultimately eliminating all point

source pollution.

3. The remaining arguments are red herrings. Section

304(f) of the CWA provides no exemption for pollutants when

they are directed from nonpoint sources to a point source.

The control of pollution through NPDES permits does not

interfere with traditional State authority over water allocation.

And finally the NPDES permitting system facilitates the

partnership between the federal government and the States

embodied in “our federalism,” prevents inter-state disputes

over water-pollution control, protects downstream States and

Tribes, and imposes no burden on water management districts

or the restoration of the Everglades.

ARGUMENT

I. PETITIONER’S BACKPUMPING OF POLLUT-

ANTS FROM THE C-11 CANAL INTO THE

EVERGLADES PROTECTION AREA REQUIRES

A PERMIT UNDER THE CLEAN WATER ACT

Statutory construction “begin[{s] with the language of the

statute.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,

450 (2002). “The plainness or ambiguity of statutory language

is determined by reference to the language itself, the specific

context in which that language is used, and the broader

context of the statute as a whole.” Robinson v. Shell Oil Co.,

519 U.S. 337, 341 (1997). “The inquiry ceases ‘if the statutory

language is unambiguous’ and ‘the statutory scheme is

coherent and consistent.’” Barnhart, 534 U.S. at 450 (internal

citations omitted). The text and structure of the CWA support

the lower courts’ conclusion that the S-9 pump station is a

classic point source, featuring “pipes” and “conduits,” that

requires a permit before it may discharge pollutants into the

Everglades Protection Area.

A. The Plain Language Of The CWA Dictates The

Lower Courts’ Conclusion That Petitioner’s

Discharges From The S-9 Pump Station Into

The Higher Quality Surface Waters Of The

Everglades Constitutes An Addition Of Pollutants

That Requires A Permit

The plain language of the CWA prohibits the “discharge

of any pollutant” without an NPDES permit. 33 U.S.C.

§§ 1311, 1342. The “discharge of a pollutant” is expressly

defined as “any addition of any pollutant to navigable waters

from any point source.” 33 U.S.C. § 1362(12)(A). As this

Cc ourt has held, the manifest intent of the CWA is:

clearly to establish an all-encompassing program

of water pollution regulation. Every point source

discharge is prohibited unless covered by a permit,

which directly subjects the discharger to the

administrative apparatus established by Congress

to achieve its goals.

City of Milwaukee, 451 U.S. at 318 (emphasis in original).

In this case, there is no dispute that: 1) the S-9 pump

station is a “point source;” 2) that the water discharged from

the S-9 pump station contains “pollutants;” and 3) the WCA

3A (which is part of the Everglades Protection Area)

constitutes “navigable waters.” Pet. App. at 4a-Sa; see also

J. App. at 201. It is clear that the pumping of water containing

pollutants from the S-9 into the Everglades Protection Area

constitutes the “discharge” of pollutants because it adds

pollutants to that body of water from a point source.

If this were not clear enough, the EPA regulatory

definition of “discharge of a pollutant:”

includes additions of pollutants into waters of the

United States from: Surface runoff which is

collected or channelled by man: [and] discharges

through pipes ... or other conveyances owned

by a State ... which do not lead to a treatment

works ....

40 C.F.R. § 122.2. This regulation is directly applicable

because the C-11 Canal collects and channels runoff from

the C-11 Basin that is discharged through the pipes in the

Petitioner’s S-9 pump station.

The Petitioner relies on undefined terms in the definition

of the term “discharge of a pollutant” to argue that the

discharge of pollutants from the S-9 pump station does not

constitute an “addition” of pollutants to navigable waters

“from” a point source. See, e.g., P. B. at 19, 20. Petitioner

argues that the S-9 discharges do not require permitting

because the pollutants are not produced by the S-9 but instead

are conveyed from the polluted C-11 Canal water.

The Petitioner’s construction would require the Court to add

language to the statutory definition as follows: “any addition

of any pollutant to navigable waters from any point source

unless the pollutant is not produced by the point source

itself.””’ The Solicitor General would rewrite the statutory

definition as follows: “any addition of any pollutant to

navigable waters from any point source unless the pollutant

originates in some already polluted navigable waters”.

The exceptions the Petitioner and the Solicitor General

would have this Court read into the CWA are contrary to its

plain language and its fundamental purpose of eliminating

the discharge of pollutants into navigable waters.

10. This novel interpretation of the CWA 1s contrary to the

position taken by the EPA in Northern Plains Resource Council v.

Fidelity Exploration and Development Co., 325 F.3d 1155, 1158

(9th Cir. 2003), cert. denied, No. 03-257, 2003 WL 21990009

(Oct. 20, 2003). In this recently decided case, the EPA rejected the

state's attempt to exempt discharges of unaltered ground water from

NPDES regulation. Instead, EPA took the position that discharges of

ground water into surface waters were subject to NPDES permitting

requirements even though the operators of the mines were not

responsible for the presence of the pollutants in the ground water.

Id. at 1158-59 (emphasis added).

1. The Meaning of the Word “Addition”

Because Petitioner conceded below that the S-9 pump

station was a point-source, and because point sources are

regulated by permits if they add pollutants to navigable waters,

Petitioner is forced to invent an interpretation of the undefined

term “addition” as used in the definition of the “discharge of a

pollutant.” However, under any reasonable interpretation of the

term “addition,” Petitioner “added” pollutants to the receiving

waters. If not otherwise defined, words in a statute “will be

interpreted, as taking their ordinary, contemporary, common

meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). The

plain meaning of “addition,” is “the joining or uniting” of one

thing to another.” Webster's Third New International Dictionary

Unabridged, at 24 (1993). To “add” means to increase in number

of size. Jd. The discharge from the S-9 pump station “adds”

pollutants to the Everglades Protection Area and does so at

levels great!y exceeding those of the receiving waters. Indeed,

without the S-9 pumps and pipes, the pollutants in the C-11

Canal would not be added to the Everglades Protection Area.

The word “addition” must also be construed in its context

as part of the definition of the term “discharge of a pollutant.”

See Robinson, 519 U.S. at 342. The plain meaning

of “discharge” “is to give outlet to, pour forth, emit... .”

See also PUD No. | of Jefferson County v. Washington Dept.

of Ecology, 511 U.S. 700, 725 (1994), J. Thomas dissenting,

citing Webster’s Ninth New Collegiate Dictionary 360 (1991)

(describing discharge as a “flowing or issuing out” or

“something that is emitted”). Taken in this context, the

pumping of polluted waters from the C-11 Canal and

subsequent release from the S-9 pump station into protected

wetlands is a pouring forth and therefore, a “discharge” or

“addition” of pollutants. The fact that Petitioner may not alter

the pollutant before discharging it is irrelevant because

Petitioner’s intentional backpumping of water containing

pollutants at levels greatly exceeding the natural level of the

receiving waters, J. App. at 154-56, is “adding” pollutants

into waters that would not otherwise receive them.

2. The Meaning Of the Word “From”

The word “from” is also not defined in the CWA but, as

the Eleventh Circuit explained, the natural reading of

“from” “indicate[s] the ‘agent or instrumentality’ or the

‘cause or reason’ by which the pollutants are added to

navigable waters.” Pet. App. at 7a n.6, citing Random House

Dictionary of the English Language at 770, (2d ed. 1987).

See also 2 William H. Rodgers, Jr., Environmental Law:

Air and Water § 4.10 at 158 (1986) (“The statutory condition

that a pollutant be ‘added’ to the stream is met if the source

is the cause of the appearance of the pollutant regardless of

the mechanism”). In other words, “from” refers to the

discernible structure, the point, by which the pollutants are

added. There is no question the pollutants were added from

the S-9 pump station.

Petitioner argues that “from” indicates that the point

source itself must originate or produce the pollutants.

This argument is directly contrary to the text of the CWA,

which defines “point source” as “any discernible, confined

and discrete conveyance, including but noi limited to any

pipe ... from which pollutants are discharged.” 33 U.S.C.

§ 1362(14) (emphasis added). A point source is clearly

defined as a “conveyor” of pollutants, not a “creator” of

~ pollutants. Petitioner’s reading of the statute is also contrary

to this Court’s decision in City of Milwaukee, which found

that overflows from a city sewer system of sewage and

stormwater runoff constituted point source discharges even

though neither the sewage nor the stormwater originated at

or were produced by the overflow point sources. See City of

Milwaukee, 451 U.S. at 318 n.11. If Petitioner’s

impermissible interpretation is accepted, it would exclude

from permit requirements the very thing for which a permit

is necessary — the most immediate conveyance of the

pollutants entering the receiving waters.

3. The Point Source

Although Petitioner’s concession below, that the S-9 is

a “point source,” P. App. at 4a-5a, requires it to make the

contrived argument that the polluted waters discharged into

the Everglades are not “added” “from” the point source, it is

plain that Petitioner’s real argument is that the S-9 is not a

point source. However, the S-9 pump station fits clearly

within the classic definition of point source — a pumping

station that discharges from pipes. The S-9 is “discernible,

confined and discrete,” 33 U.S.C. § 1362(14), it is readily

identifiable, comprised of several huge pipes with 10-foot

heads powered by lift pumps with diesel engines and fuel

storage tanks. Each pump discharges pollutants at a rate of

960 cubic feet per second. J. App. at 153-54; Strowd Dep. at

50, 52. The relevant case law supports the conclusion that

the S-9 is a point source, See City of Milwaukee, 451 U.S. at

318 (overflows into Lake Michigan from city sewer systems

which gathered both sewage and stormwater runoff “are point

source discharges”); Amigos Bravos v. EPA, 324 F.3d 1166,

1169 (10th Cir. 2003) (point source is the “piles” at the

molybdenum mine); Headwaters, Inc. v. Talent Irrigation

Dist., 243 F.3d 526 (9th Cir. 2001) (CWA applied to discharge

of herbicide); see also 2 W. Rodgers, Envtl. L., § 4.10 at

148.

Petitioner’s concession below that the S-9 pump station

is a point source does not make the S-9 a likely subject for

nonpoint regulation.'' In fact, both the pumping station

(a conveyance and discrete structure) and the pipes from

which it discharges, are point sources adding pollutants to

the Everglades Protection Area and must be regulated as such.

Petitioner’s argument that the S-9 pump station

should be regulated as a nonpoint source is based on a

misunderctanding of the import of the term “point source.”

The term does not refer to the place where the pollutant was

created; it refers instead to the proximate source from which

the pollutant is introduced to the destination water body. The

term “point source” asks whether the pollutants can be

meaningfully regulated by a permitting system. See Catskill

Mountains Chapter of Trout Unlimited, Inc. v. City of New

York, 273 F.3d 481, 491 (2d Cir. 2001) (holding that

“addition” occurs when pollutants are added from “any place

outside the particular water body to which pollutants are

introduced.”). The S-9 pump station is an indentifiable and

discrete conveyance and thus presents none of the difficulties

that remove nonpoint sources from permit requirements.

11. The Solicitor’s argument that Petitioner is the innocent

recipient of circumstances beyond its control (S. B. at 27) is

contradicted by Florida statutes that describe Petitioner's

responsibilities and show that Petitioner has significant statutory

control over the development in the C-11 Basin. Petitioner 1s required

by State statute to implement a regional water management plan that

gives due consideration not just to flood control and water storage,

but also to environmental protection. § 373.036(2)(d)(3), Fla. Stat.

(2003). Petitioner has the responsibility to issue consumptive water

use and construction permits, including general permits for projects,

§§ 373.116 and 373.118, Flcrida Statutes, and may revoke a permit

that is violated. § 373.243, Fla. Stat. (2003).

See Pronsolino v. Nastri, 29\ F.3d 1123, 1126 (9th Cir. 2002)

(“Nonpoint sources of pollution are non-discrete sources;

sediment run-off from timber harvesting, for example, derives

from a nonpoint source.”).

B. The Lower Courts’ Rulings Here Are Consistent

With The Structure Of The CWA

The first principle of statutory construction is that when

the meaning of the statute is plain, the judicial inquiry

must end. See Barnhart, 534 U.S. at 450. Because the plain

meaning of the CWA shows the pumping of pollutants from

the S-9 constitutes the discharge of a pollutant. the inquiry

should end there. Even if further inquiry were needed, this

conclusion is consistent with the overall statutory scheme.

See Owasso Indep. School Dist. v. Falvo, 534 U.S. 426, 434

(2002).

1. The Definition Of Point Source Expressly

Excludes Certain Water Transfers But Not

This One

The CWA expressly excludes from the definition of

“point source” two types of water transfer: [1] water ...

injected into a well to facilitate production of oil or gas, or

water derived in association with oil or gas production and

disposed of in a well ...; and [2] agricultural stormwater

discharges and return flows from irrigated agriculture.”

33 U.S.C. § 1362(6) and (14). Since Congress specifically

excluded these water transfers from the definition of a “point

source,” other water transfers must be presumed to be

potential “point sources.” A contrary interpretation would

render superfluous the exclusion of certain water transfers.

Moreover, the overall statutory scheme of the CWA is to

require permits for all point sources, and to subject those

permits to federal supervision through tie 'sPDES program.

Where the CWA wanted to provide exemptions to its permit

requirements, it did so specifically.

2. Other Provisions Of The CWA Make Clear

That Point Sources Need Not Originate Or

Produce Pollutants

Contrary to the Petitioner’s contention that a point source

must originate the pollutants they discharge, the CWA

expressly regulates several types of point sources which by

definition do no more than convey pollutants which do not

originate in, or are not produced by, the point source.

For example, point sources include publicly owned treatment

works (“POTW’s”) which often simply filter and pass through

to navigable waters pollutants originating from nonpoint

sources. See 33 U.S.C. §§ 1311(a-b); see, e.g., id. § 1311(h).

Under Petitioner’s argument POTW’s, could not be point

sources because the pollutants originate from somewhere

else. However, POT W’s are considered typical point sources.

See 33 U.S.C. § 1311(b)(1)(B); U.S. EPA NPDES Permit

Writers’ Manual, Chapter 2, p.10, Environmental Agency,

Office of Wastewater Mgt., December 1996; see also S. B.

at 22 n.6.

Similarly, the CWA requires permits for point source

discharges of “storm water,” 33 U.S.C. § 1342(P), which

involves “runoff from diffuse sources that eventually pass

through storm sewer systems and is thus subject to the NPDES

permit program.” Natural Res. Def. Counsel v. EPA, 966 F.2d

1292, 1295 (9th Cir. 1992). A municipal separate storm sewer:

means a conveyance or system of conveyances

(includes roads with drainage systems, municipal

streets, catch basins, curbs, gutters, ditches, man-

made channels, or storm drains): Owned or operated

by a State. . . including special districts under State

law such as a sewer district, flood control district or

drainage district . . . designed or used for collecting

or conveying storm water...

40 C.F.R. § 122.26(b)(8). Stormwater obviously is not

produced by the point source that discharges it. Thus, it is

clear that the CWA does not require a point source to originate

or produce the pollutants in order for the permit requirement

to apply."

Prior to 1994, Section 402(p)(1) of the CWA exempted

discharges “composed entirely” of stormwater but required

NPDES permits for five classes of discharges including

discharges from large urban storm water collection systems

(CWA § 402(p)(2)(C), 33 U.S.C. § 1342(p)(2)(C)) and

discharges determined either to contribute “to a violation of

a water quality standard” in the waters receiving the discharge

or to represent “a significant contributor of pollutants”

into the receiving water (CWA § 402(p)(2)(E), 33 U.S.C.

§ 1342(p)(2)(E)). Thus, even prior to 1994, Section

402(p)(2)(E) expressed a clear intent that the Administrator

12. In fact, the C-11 Canal compares very closely, if not exactly,

to a municipal separate storm sewer, because it is a “man-made

channel” owned by the State “flood control or drainage district”

“designed or used for collecting or conveying storm water.” 40 C.F.R.

§ 122.26(b)(8). Under the controlling EPA regulations, the discharged

water from the pipes of the S-9 pump station can be defined as

“stormwater” because it consists of “stormwater runoff, . . . surface

runoff and drainage.” See 40 C.F.R. § 122.26(b)(13) (2002). Indeed,

the C-11 Canal and the S-9 pump station are regulated under Florida’s

“Everglades Storm Water Program.”

could regulate any discharge of stormwater under

circumstances where the receiving water body would be

impaired or its designated uses compromised. After 1994,

Congress gave the EPA the authority to designate by rule

additional stormwater discharges for which permits were not

already required that needed to be regulated to protect water

quality. Further, there is no exception for discharges of

polluted storm waters that also happen to be waters of the

United States and this provision ts entirely consistent with

EPA’s definition of “discharge of a pollutant.” 40 C.F.R.

§ 122.2. Section 402(p)(1) makes it clear that after 1994 there

is no permit exemption for stormwater that 1s otherwise

discharged through a point source. See 33 U.S.C. § 1342(p)(1)

C. The Holdings Of Other Lower Courts Regarding

The Meaning Of “ Addition,” Including the “Dam

Cases,” Are Consistent With The Eleventh

Circuit's Decision

The Eleventh Circuit and the trial court correctly found

that Petitioner's discharge of pollutants from the large pipes

of the S-9 pump station was not a remote “but for” cause of

the pollutants reaching the Everglades Protection Area but

instead it was the most immediate cause of the pollutants

entering that area and as such constituted an “addition.”

Pet. App. at 7a-9a and n.7. This is clearly correct because

the pollutants would not have entered the Everglades

Protection Area without the affirmative backpumping 2gainst

the flow.

Other circuit courts are consistent with the Eleventh

Circuit’s conclusion that moving pollutants from one body

of water of the United States to another constitutes an

“addition” within the meaning of the CWA. See, e.g., Catskill,

273 F.3d at 484 (holding that the discharges were an addition

requiring NPDES permitting because under normal

conditions the polluted water from the reservoirs would never

reach the creek); Dubois v. United States Dept. of Agric.,

102 F.3d 1273, 1296 (1st Cir. 1996) (holding addition means

pollutants reaching navigable waters through unnatural

means); Dague v. City of Burlington, 935 F.2d 1343, 1354-

56 (2d Cir. 1991), rev'd in part on other grounds, 505 U.S.

557 (1992) (holding that culvert which conveyed polluted

waters from Beaver Pond to a portion of Winooski River

constituted discharge of pollutants under CWA); see also

Committee to Save Mokelumne River v. East Bay Mun. Util.

Dist., 13 F.3d 305, 308-09 (9th Cir. 1993) (holding that dam

was subject to permit requirement where it discharged

collected surface runoff into river below), cert. denied, 513

U.S. 873 (1994); Ala. Rivers Alliance v. F-E.R.C., 325 F.3d

290, 296 (D.C. Cir. 2003) (holding that the installation and

operation of replacement turbines which released low DO

water into the river at an increased rate of 900 cfs was an

activity that “may result in any discharge” under Section

401(a)(1)); Fidelity, 325 F.3d 1160-64 (holding that discharge

of unaltered groundwater into Tongue River required NPDES

Permit). Lower courts view the receiving water body to be

the relevant waters to which pollutants are added.

See Fidelity, 325 F.3d at 1162 (“The requirement that the

physical, biological, or chemical integrity of the water be a

‘man-induced’ alteration refers to the effect of the discharge

on the receiving water; it does not require that the discharged

water be altered by man.”).

Moreover, flow-induced water quality changes, such as

those caused by dams, need not be found to be point sources

in order to be consistent with the Eleventh Circuit’s holding.

Such flow induced changes (e.g., temperature changes,

dissolved oxygen, and others) are distinct from the pollutants

which are drawn into the S-9 pumps and discharged from

the pipes into the Everglades Protection Area. Neither

National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C.

Cir. 1982), nor National Wildlife Federation v. Consumers

Power Company, 862 F.2d 580 (6th Cir. 1988), compel a

result different from the Eleventh Circuit’s here. Neither case

involved discharges from pipes into protected waters. Neither

case involved obviously “permit worthy” structures such as

the one here. After slowing or blocking water for a time,

the dam in Gorsuch thereafter discharged the water into

the same water course, where it would have gone in any

event. Gorsuch, 693 F.2d at 165. In Consumers Power, a

hydroelectric facility withdrew water from Lake Michigan

into a man-made resevoir and generated power by letting the

water from the resevoir flow through turbines and back

into Lake Michigan. Consumers Power, 852 F.2d at 581.

By contrast, the S-9 pumps interrupt the natural flow of the

C-11 Canal and rapidly backpump waters containing

pollutants into another body of higher quality waters into

which the waters would not otherwise have reached. The

decision here will likely have no effect on “dam cases” such

as Gorsuch and Consumers Power.

Il. THE PETITIONER AND THE SOLICITOR

GENERAL ARE ASKING FOR JUDICIALLY

CREATED EXEMPTIONS TO THE CWA

While purporting to make a “plain language” argument,

Petitioner and the Solicitor General seek to carve out

exemptions to the CWA that are not contained in the statute.

Here, it is not EPA, the agency that administers the CWA,

that seeks the exemptions because the agency took no position

in the courts below or here. The position of the United States

is presented by the Solicitor General who is not entitled to

deference under Chevron U.S.A. Inc. v. Nat'l Res. Def.

Council, Inc., 467 U.S. 837, 842-43 (1986). Moreover, the

exemptions urged here have no basis in the plain language

of the CWA. The Solicitor’s argument is also contrary to prior

positions of the United States and the EPA.

A. Section 304(f) Does Not Exempt Petitioner From

The NPDES Permit Requirements

Petitioner contends that Section 304(f) of the CWA

identifies structures like the S-9 pump station to be nonpoint

sources of pollution. P. B. at 28-32. This argument is

foreclosed by Petitioner’s concession below, and the

inescapable fact, that the S-9 is a point source. Moreover,

this argument is not supported by a plain reading of Section

304(f), which would create a new set of exemptions to the

CWA, and would invalidate several longstanding EPA

regulations and settled case law.

Section 304(f)(1) calls for EPA guidelines over nonpoint

sources and requires procedures and methods to control

pollution from certain activities. 33 U.S.C. § 1314(b)(1).

Section 304(f)(2) lists numerous activities, which may result

in nonpoint sources of pollution, including runoff from

agricultural, silvicultural, mining, construction activities and

“changes in the movement, flow, or circulation of navigable

waters or ground waters, including changes caused by the

construction of dams, levees, channels, causeways, or flow

diversion facilities.” 33 U.S.C. § 1314(f)(2). Section 304(f)

calls for regulation of nonpoint sources of pollution caused

by these activities but it does not suggest that point sources

such as pipes and other conveyances are not treated as point

sources when they discharge pollutants in connection with

these activities. To the contrary, the CWA subjects these

activities to the NPDES program when the pollutants from

those activities are emitted from a discernable conveyance.

See, e.g., 40 C.F.R., §§ 122.2, 122.23, 122.24, 122.26,

122.27; See also United States v. Earth Sciences, 599 F.2d

368, 373 (1979) (holding that section 304(f) lists activities

that “may involve discharges from both point and nonpoint

sources, and those from point sources are subject to

regulation”); Trustees for Alaska v. EPA, 749 F.2d 549, 558

(9th Cir. 1984) (same); Sierra Club v. Abston Constr. Co.,

Inc., 620 F.2d 41 (Sth Cir. 1980) (same).

There is no intent manifested in Section 304(f)(2) to

remove the listed activities from point source regulation.

Had Congress intended to exempt the activities in Section

304(f)(2) because they are listed after subpart (1), it would

not have done so ambiguously by placing the exemption in a

general instruction section of the statute. And the reference

to “flow diversion” facility in Section 304(f)(2)(F) does not

indicate an intent to remove flow diversion facilities from

point source regulation but rather is one example, in many,

of a structure whose construction can cause changes in the

movement, flow and circulation of water. Nothing in Section

304(f)(2) exempts listed activities from point source

regulation.

Labeling the S-9 pump station a flow diversion facility

is also inconsistent with the undisputed facts because “flow,”

which suggests a “gentle or unbroken movement,” Webster’s

Third New Int’! Dictionary at 875, and “diversion,” which

suggests the act of diverting from one course, id. at 662,

do not apply to the S-9 pump station which does not divert a

flow of water, but backpumps and reverses the flow with

massive, not gentle, force. Petitioner misreads Section 304(f)

as establishing an impermeable line between nonpoint and

point sources. The fact is that pollutants from nonpoint

sources are routinely channelized or otherwise directed tc

point sources, where their discharge is from a point source

and requires a permit.

Section 304(f) is fully consistent with the partnership

created by the CWA, which requires state and federal

programs to operate in concert and, with regard to point

sources, simply provides supplemental regulation, as do other

sections of the CWA. See PUD No. /, 511 U.S. at 704

(acknowledging the CWA’s supplemental regulatory

requirements under 33 U.S.C. § 1313). Petitioner's argument

is tantamount to a return to the pre-1972 CWA amendments

that relied on States’ ambient water quality system without

the NPDES enforcement system; this failed system is what

the CWA was enacted to correct. These old guidelines (their

source is in the 1972 amendments) are the harbinger of what

would become “best management practices” for various

nonpoint and point sources. See 2 W. Rodgers, Envtl. L.,

§ 4.22 at 324-30.

The Solicitor General’s Section 304(f) argument is a

departure from the position of the United States in Earth

Sciences, 599 F.2d 368. There, the district court had agreed

with a mining company’s argument that inclusion of mining

activities on the 304(f) list exempted pollution resulting from

mining activities from point source regulation. The United

States argued for reversal on appeal contending that if

Congress had wanted to exclude mining activities from point

source regulation, it would not have done so ambiguously

“by placing the exemption in a general instruction section of

the statute.” Earth Sciences, 599 F.2d at 372. The appeals

court in Earth Sciences, accepted the government's argument

and reversed, finding that Section 304(f) did not operate to

create a set of implied exemptions and required the mining

company to obtain an >"*DES permit. /d. at 373, 376. The

same reasoning holds '™.< here.

B. The Solicitor General’s “Singular Waters”

Argument Is Inconsistent With The Plain

Meaning Of The CWA

The Solicitor General correctly rejects Petitioner's

“original source” argument on the one hand but simply offers

an equally absurd interpretation of the provisions of the

CWA." The Solicitor General argues that the absence of the

modifier “any” before “navigable waters” implies that waters

of the United States should be viewed as “singular waters”

— an undifferentiated “whole” for purposes of the NPDES

13. The Solicitor General argues that the S-9 pump station

discharges are not an addition from a point source because the

ordinary meaning of “from” connotes a physical relationship, such

as a “point or place where an actual physical movement . . . has its

beginning” and the physical movement of the pollutants does not

have its beginning at the S-9 pump station. S. B. at 22. Although

characterized differently, this argument 1s the Petitioner's, and is

equally inconsistent with the definitions in the CWA, which must be

construed broadly. It 1s also inconsistent with the undisputed facts

here. In the House debate on the CWA, Representative Blatnik noted

that the strength of the CWA relies heavily on the broad scope of the

definitions. 118 Cong. Rec. 10,206 (1972). He noted that:

[t]o revise any of these definitions 1s to upset the common

threat of the bill. If there is a part of this bill that can be

labeled “most important,” it is these definitions. To revise

them in a way to limit their coverage 1s to severely detract

from the effectiveness of the bill.

Id.

requirement. $.B. at 19. The Solicitor’s theory is that the

CWA regulates pollutants where they are first discharged into

waters of the United States — never afterwards. This theory

implies an analogy to the problem of non-point pollution

where there is difficulty in regulating the source of the

pollution. No such difficulty exists here because the

pollutants are being discharged from a point source, against

the natural flow, into waters which would not otherwise

receive the pollutants.'* The Eleventh Circuit correctly

rejected the argument in a footnote. See Pet. App. at 8a, n.8.

EPA General Counsel also previously rejected the

“singular waters” theory advanced here by the United States,

noting that to use the all-encompassing definition of

navigable waters “as a basis for exempting them from the

permit requirements appears to fly directly in the face of clear

legislative intent to the contrary.” Decision of General

Counsel No. 21, June 27, 1975 at 73. The First Circuit also

rejected a similar argument in Dubois where the facts showed

that the transfer of water from the Pemigewassett River to

Loon Pond “would not occur naturally.” Jd. at 1297. The First

Circuit took judicial notice that the Pemigewassett River was

for years one of the most polluted rivers in New England

and that under the “singular waters” theory the court would

have to reach the same conclusion regardless of how polluted

the river was or how pristine Loon Pond was. /d. The court

concluded that Congress could not have intended such an

irrational result. Indeed, the Solicitor’s argument would have

the absurd consequence of allowing pollution of all of the

14. Petitioner's argument that the C-11 Canal and the Everglades

Protection Area are not distinct water bodies (P. B. at 46) is

inconsistent with the undisputed facts of this case which show two

distinct bodies of water with drastically different water quality.

See J. App. at 150 ©¥ 30-32, 37; see also Pet. App. at 8a n.8.

waters of the United States, regardless of the means of

conveyance and discharge, as long as the pollutants were

drawn from a polluted navigable body of water."

The Solicitor General's argument confuses the

jurisdictional issue of what are navigable waters, cf Solid

Waste Agency of Northern Cook County v. U.S. Army Corps

Of Engineers, 531 U.S. 159 (2001) (considering the Corps’

jurisdiction under the CWA), with the environmental issue

of how separate bodies of navigable waters, containing

different constituents, having different water quality, and

serving different functions, can be lawfully connected or

mixed. It is beyond dispute that within the vast and varied

jurisdictional waters of the United States, the constituents

and the quality of the waters can have extreme differences;

and the pollutants contained in one navigable water body

should not be used as a license to convey those pollutants to

another.

15. In a different context, other cases have rejected this

argument because “pollutant” 1s defined to include “dredged spoil”

which by definition must originate in the water body. See Deaton v.

United States, 209 F.3d 331(4th Cir. 2000) (redeposit of excavated

material from wetlands constituted an “addition” under the CWA),

Avoveless Sportsmen's League, Inc. v. Marsh, 715 F.2d 897,

923-25 (Sth Cir. 1983) (redeposit of vegetation and other materials

excavated from wetlands constituted an “addition” under CWA),

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

Cir. 1985) (redeposit of spoil churned up by propellers constituted

the discharge of pollutant under the CWA), vacated and remanded

on other grounds, 481 U.S. 1934 (1987), readopted in relevant part,

848 F.2d 1133 (11th Cir 1988), Rvbacheck v. EPA, 904 F.2d 1276,

1285 (9th Cir. 1990) (dirt and gravel extracted by gold miners and

redeposited into the stream bed from which it was extracted

constituted an “addition” of a pollutant under the CWA).

Neither the undisputed facts nor the applicable case law

supports the Solicitor General's facile conclusion that this

case involves simply transferring “navigable waters” from a

water collection canal through a levee to a water conservation

area. The S-9 discharge adds all sorts of pollutants, including

phosphorus, at dangerously high levels for the receiving

waters. The Solicitor General's argument that the pollutants

here merely “pass” through the point source ignores the

undisputed facts which show that the canal waters could never

“pass” to the Everglades Protection Area in the course of its

natural flow to the sea. S. B. at 16. Instead, a powerful pump

forcibly interrupts and reverses the canal’s natural easterly

flow and draws water from the east, away from its natural

flew, and deliberately dumps the polluted water west into

the higher quality waters of the Everglades Protection Area.

Worse, the Solicitor General's “singular waters” theory would

do grave damage to the CWA by reading already polluted

navigable waters out of the definition of “pollutant.”

33 U.S.C. § 1362(b). This interpretation would sanction any

number of rearrangements and redeposits of pollutants that

could claim earlier introduction in navigable waters and

presents the court with a radically amended definition cf

“discharge of a pollutant” that is certain to harm the water

quality of all downstream States and Tribes.

C. Neither Sections 101(g), Nor § 202(2), Nor

The “Traditional Powers Of The States”

Exempt Petitioner From The NPDES Permit

Requirements.

Under the guise of applying the “clear statement rule”

to the CWA, and relying on Solid Waste Agency, 531 U.S. at

173, Petitioner argues that applying the permit requirements

of the CWA here would strip the states of their traditional

powers over water management and land-use planning.

P. B. at 34-35. Petitioner and the Solicitor General propose

exemptions to the CWA under Section 101(g) of the CWA,

33 U.S.C. § 1251(g). They argue that Section 101(g) supports

non-regulation of water management systems because

regulation of water quality should not be allowed to interfere

with allocation of water by the States. S. B. at 25 n.11; P. B.

at 2-3. Some amici also contend that applying NPDES

permitting requirements to Western water collection and

distribution networks would contravene Section 101(g).

These arguments misread Section 101(g).

This Court has specifically recognized the fundamental

distinction between land-use regulation and allocation of

water rights among users, and environmental regulation

embodied in water pollution control measures. See PUD

No. 1, 511 U.S. at 720. The latter does not abrogate

proprietary rights as contemplated by Section 101(g), but

merely regulates the quality of the allocated water. /d. Section

101(g) preserves “the authority of each State to allocate water

quantity as between users; [it] does not limit the scope of

water pollution controls that may be imposed on users who

have obtained, pursuant to state law, a water allocation.” /d.

The purpose of Section 101(g) is to ensure that the

apportionment of State water rights between users are not

subverted and any effects regarding allocation are prompted

by legitimate and necessary water quality considerations.

3 Legislative History of the Clean Water Act of 1977, Serial

No. 95-14 at 532 (Comm. Print 1978). Allocation of water,

pursuant to Section 101(g), contemplates the ability of a state

to establish appropriative water rights such as priority,

quantity, or beneficial use. /d. It does not signal a significant

shift in the balance of federal-state power. /d. To the contrary,

the legislative history explicitly recognizes the historic

allocation rights associated with State land-use and planning

programs and seeks instead to protect those rights as distinct

from the environmental regulation of water quality for which

the CWA was designed. /d.

Moreover, unlike Solid Waste Agency, where there may

have been an overlap between land-use planning and

environmental regulation, no such situation exists in this case.

The regulations at issue do not attempt to enlarge federal

jurisdiction by imposing a limitation on the use or amount

of water pumped by the S-9 pump station. Rather, the permit

requirement centers on regulating the quality of the polluted

waters conveyed by the pumping station.

The “water allocation exemption” argument also

misrepresents the function of the S-9 pump station because

by no stretch of the facts, or the imagination, does the S-9

allocate quantities of water among users. The S-9 is simply

disposing, not allocating.'® Nor can the dumping be justified

as “beneficial” as Petitioner would have the Court believe.

P. B. at 11. Nothing in the record supports Petitioner’s

argument that it is “beneficial” to the Everglades Protection

Area to receive polluted waters containing high levels of

16. It is not the need for water in the Everglades that flips the

switch of the S-9 pump station — it is the water levels in the

C-11 Basin. The switch is flipped on when the canal level reaches

four feet above sea level and switched off when the water has

been lowered to one foot above sea level. P. B. at 11. Petitioner is

collecting, conveying, and disposing of mixed waters to the benefit

of the C-11 Basin, not for the benefit of the Everglades, and in doing

So it 1s intentionally discarding the pollutants into lands where the

Tribe lives and works, impairing Tribal uses in order to protect the

developments in the west.

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 ts 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-I1 Canal is a navigable water of the

United States, its backpumping ts not natural flow.

Petitioner’s backpumping, moreover, 1s causing long-term

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

J. App. at 38-39, 135-36, 154-56, 104-69. 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. 7, SIL U.S. at 705). Altering the

quality of the receiving waters, by backpumping polluted

water into it, is not beneficial to those waters. It 1s 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 FPA have formally determined

pursuant to Section 303¢d)(1)(A) that the WCA 3A 1s failing to meet

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

3A) list identifies the water quality limited segments of every

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

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

an already polluted section of the Everglades 1s 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 1LO1(g)’s explicit directive that the two

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

No. 1, S11 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 which

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 v. 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 requisite scienter requirements are

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

claims) with 33 U.S.C. § 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 would 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 receiving water body

without the affirmative pumping of the point source. Gorsuch

concerned temperature changes, oxidation, efc., caused by

the changed movement of the dammed water, which is an

entirely different situation. And Consumers Power, another

4 ’

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

from whieh it was drawn This is likewise simply not the

circumstance here

’ The principles of this case will not require NPDES

permits for the vartous water supply structures which store,

iclease or eventually allow water to flow i the dircetion of

natural flow Phin as because, m order to require a permit,

the port souree must mtroduce the pollutant ito navigable

Water fromoany phice outside the partieuhia water body to

Which pollutants are introduced: See Pet App. Sa %, CatsAdll,

JT b Mat d9b 92 Tithe pollutants were naturally Howie

Info recenving waters many event, (hen a poimt source ts not

the “iistrumentahity” of “eause™ of “reason” of additional

pollutants m the teceming waters, and the pomt souree

likewise does not atteet “an merease mm numbers, size, ot

quantity oof pollutants im the reeeminye waters

, oIn any event, sound statutory uterpretation and the

PPA administtative mplementation would stl prevent

unnecessary permitting bor example, EPA could use tts

vundanec and rulemaking powers to address the issues

assocnited with discharges agaist natural flow of substances,

Which ate not listed inthe statutory definition of “pollutants.”

It a material or substance is listed in the statutory CWA

definition of pollutant, 33 USC. § L3o2(0), of course tts

discharge requites a permit, But the major concern of water

supply distiiets is with substances im water which someone

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

in the statutory definition. In some, or perhaps many

Wistaneces, these potential “pollutants” may not be harmtul

either to the contributing water or to the receiving water,

While these are clearly not the tacts herem, many amet have

been musted nonetheless into thinking that the principles of

this case would require NPDES permits im all such

cocumstances but this ts neta foreyone conclusion

Statutory interpretation and/or EPA rulemaking can

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

cuse, im other ways as well) bor 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 mteygrty of the water’) 33 USC. § L3O2¢19)

Likewise, PPA might structure rules based upon whether

waters are moved within the same desiznated uses of water

quality standards.

4. bven when an NPDES permit is required, water

supply districts could still be permitted through the use of

general or ndtionwide permits and single system-wide

permits. See, ew, JO CIR. 122.28, 123.25. Furthermore,

permits im meost mstances would be readily avatlable because

tcleases 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

IS The anneus brets 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, Anneus brief of the states of Colorado

efal atp Jn 2, or perhaps even mullons of pernuts, Bret ot Anuct

Curme The Nationwide Public Projyeets Coalition, ef al, at pp. 9-10

Colorado, the lead state of cleven Western state ames, asserts that

only 4.6 percent of tts 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 being

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, 1s 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. 5a), 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 1s 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 oversight

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

Counsel of Record

JUAN M. VARGAS

CLaupio Riept

LEHTINEN, VARGAS

& Ruepi, P.A.

7700 North Kendal! Drive

Suite 303 .

Miami, FL 33156-7559

(305) 279-1166

Sonia Escosio O’ DoNNELL

RICHARD J. OVELMEN

Enrique D. ARANA

Topp M. FuLLer

Jorpen Burt LLP

777 Brickell Avenue

Suite 500

Miami, FL 33131

Dione C. CARROLL

In House General Counsel

MiccoOsUKEE TRIBE OF INDIANS

P.O. Box 440021

Tamiami Station

Miami, FL 33144

Counsel for Respondent

Miccosukee Tribe of Indians of Florida

; la

Appendix A — SFWMD Map captioned, “Everglades Protection Area,” available at

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

Everglades Protection Area

Phosphorus | nimpacted Area

GEE Phosphorus Impacted Area

; Everglades Protection Area

Storm Water Treatment Area

Legend

ne mom

Appendix B — SFWMD Brochure entitled “Everglades Program”, Map captioned,

“Everglades Protection Area & Surrounding Areas’

Seay @2)- ‘oe

19S Wig “itn 5

Everglades

Agricultural

Aree

©.199 Annes

A@pUrow CHEM IS

LEGEND

Protection Area

& Surrounding Areas

Everglades

~SEWMD Map captioned, “Figure ES-1.

Overview of the Everglades

Protection Area and Tributary Basins”, Burns & McDonnell, Final Report:

Kverglades Protection Area Tributary Basins, Conceptual Plan for Achieving Long-

Appendix ¢

souls

‘xecutive Summary, dated March 17, 2003, at ES-3,

Term Water Quality ¢

available at

s/restore/FinalConceptual/finalconceptual

20) 3.43inb).padf (last visited 11/12/03)

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Appendix D— SEWMD 2002 Everglades Consolidated Keport, Executive

Summary, Chapter 8A, chart captioned, “Achieving Everglades Water Quality,

Everglades Forever Act Timelines”, at 24, available at

www sfwimd gov/org/ema/everglades

(last visited 11/12/03)

MC THIET NENG, PN ERGEADES WATER OU NL TE

Everglades Forever Act Timelines

AB discharges compl

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prepere conceptual design:

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Appendix I SEWAMD 2003 Everglades Consolidated Report, executive

Summary, Chapter SA, chart captioned, “Achieving Everglades Water Quality,

Mandated Time Frames,” at 26, available at www.osfwind.gov/org/ema/everglades

(last visited 11/12/03)

ACHIEVING EVERGLADES WATER QUALITY

Mandated Time Frames

evaluate basin speciht

OMmMbipahons

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plans and permit

Research S!A optimization anc applications

Advanced Treatment | echnologies

- a

Appendix F — SFWMD 2002 Everglades Consolidated Report, Executive

Summary, Chapter 8B, photograph of western Broward County, Florida, at 25,

available at www.sfwmd.gov/org/ema/everglades (last visited 11/12/03)

Appendix G — SFWMD 2003 Everglades Consolidated Report, Executive

Summary, Chapter 8B, photograph o. western Broward County, Florida, at 28,

available at www.sfwmd.gov/org/ema/everglades (last visited 11/12/03)

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.