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

OFFIC: Cr 17

No. 02-626

Supreme Court, U.S.

In the Supreme Court of the United States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

PETITIONER

Vv.

MICCOSUKEE TRIBE OF INDIANS, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JEFFREY BOSSERT CLARK

Deputy Assistant Attorney

General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

JAMES C. KILBOURNE

ELLEN DURKEE

SYLVIA QUAST

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether petitioner’s longstanding practice of pumping

accumulated water from a water collection canal to a water

conservation area within the Florida Everglades constitutes

an addition of a pollutant from a point source for purposes of

Section 402 of the Clean Water Act, 33 U.S.C. 1342, where

the water contains a pollutant but the pumping station itself

adds no pollutants to the water being pumped.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

A. The Clean Water Act

B. The SFWMD’s water control activities

C. The water control facilities at issue

D. The proceedings in this case

Summary of argument

Argument:

The Clean Water Act does not require the SFWMD

to obtain an NPDES permit for operation of water

control facilities that merely convey or connect

navigable waters

A. The Clean Water Act’s definition of “discharge

of a pollutant” does not include activities that

merely convey or connect navigable waters

B. The Clean Water Act does not require an

NPDES permit for every discharge from a point

source that might be described as “the cause-in-

fact” of the release of pollutants into navigable

waters

C. The Clean Water Act expresses Congress’s

understanding that facilities that merely convey

or connect navigable waters would be regulated

through means other than the NPDES permit-

ting program

Conclusion

Addendum

(IIT)

i

— oOo Ww hw —

15

15

21

F 8 &

—

IV

v

TABLE OF AUTHORITIES .

Cases—Continued: Page

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

(11th Cir. 1985), vacated on other grounds, 481 U.S.

Avoyelles Sportsmen's League, Inc. v. Marsh, 715 1034 (1987), readopted in relevant part, 848 F. 2d

F. 2d 897 (5th Cir. 1983) 23 ! 1133 (11th Cir. 1988) 23

Borden Ranch P’ship v. United States Army i United States v. South Fla. Water Mgmt. Dist.,

Corps of Eng vs, 261 F.3d 810 (9th Cir. 2001), aff'd, 847 F. Supp. 1567 (S. D. Fla. 1992), aff’d and rev'd in

123 S. Ct. 599 (2002) 4 | part, 28 F.3d 1563 (11th Cir. 1994), cert. denied, 514

California v. United States, 438 U.S. 645 (1978) ccc». 26 U.S. 1107 (1995) 7,8

Catskill Mountains Chapter of Trout Unlimited, Inc. 1

v. City of New York, 273 F.3d 481 (2d Cir. 2001) 18 — —

City of Phoenix, Arizona Squaw Peak & Deer Clean Water Act of 1977, 33 U.S.C. 1251 et S9.

Valley Water Treatment Plants, In re, 9 E. A. D. 515, Subeh. I, 33 U.S.C. 1251-1274

2000 WL 1664964 (EPA Envtl. App. Bd. Nov. 1, 2000) 24 § 101(a), 33 U.S.C. 1251(a)

§ 101(b), 33 U.S.C. 1251(b)

5 101(g), 33 U.S.C. 1251(g)

§ 102(b), 33 U.S.C. 1252

Subch. II, 33 U.S.C. 1281-1301

§ 208, 33 U.S.C. 1288

Dubois v. United States Dep't of Agriculture,

102 F.3d 1273 (Ist Cir. 1996), cert. denied, 521 U.S.

1119 (1997) 18

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167

(2000) 6 § 208(b)\(2)(F), 33 U.S.C. 1288(b\(2(F) 6,

Marsh v. Oregon Natural Res. Council, 490 U.S. 360 Subeh. III. 33 U.S.C. 1311-1330

(1989) 28 § 301, 33 U.S.C. 1311 ,

> >

§ 301(a), 33 U.S.C. 1311(a)

§ 301(b)(1)(B), 33 U.S.C. 1311(>)(1(B)

§ 302, 33 U.S.C. 1312

§ 303(f), 33 U.S.C. 1313(f

§ 304(f), 33 U.S.C. 131400

Missouri ex rel. Ashcroft v. Department of Army, 672

F. 2d 1297 (8th Cir. 1982) 17

National Wildlife Fed'n v. Consumers Power Co.,

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

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156

17, 23, 24

(D.C. Cir. 1982) 17, 19, 21, 23, 24 § 30400 2) F), 33 U.S.C. 1314) F)

Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002), § 306, 33 U.S.C. 1316

cert. denied, 123 S. Ct. 2573 (2003) 5 § 306(a), 33 U.S.C. 1316(a)

PUD No. 1 of Jefferson County v. Washington Dep't § 307, 33 U.S.C. 1317

of Ecology, 511 U.S. 700 (1994) 25 § 309, 33 U.S.C. 1319

Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) ............. 22 § 318, 33 U.S.C. 1328

United States v. Deaton, 209 F.3d 331 (4th Cir. § 319, 33 U.S.C. 132% 5, 6,

2000) 23 Subch. IV, 33 U.S.C. 1341-1346

Roa „„ aa Bo two awd SR wwe

§ 401, 33 U.S.C. 1341

§ 402, 33 U.S.C. 1342

1, 2, 4, 11, 2a

VI

VII

Statutes and regulations Continued: Page Statutes and regulations Continued: Page

§ 402(a), 33 U.S.C. 134 2a) 2, 13, 15 Fla. Stat. Ann. (West Supp. 2003):

§ 402(a)(1), 33 U.S.C. 1342(a)(1) 4 ; § 373.069 6

§ 402(p), 33 U.S.C. 1342(p) 22 § 373.4592 8

§ 404, 33 U.S.C. 1344 23 } § 373.4592(9\(k) 10

Subch. V, 33 U.S.C. 1361-1377 3 § 373.4592(9\(1) 10

§ 502(6), 33 U.S.C. 1362(6) 5, 22, 3a 6 40 C. F. R.

b 502(7), 33 U.S.C. 136207) 5, 13, 16, 3a ; Pt. 122 6

§ 502(11), 33 U.S.C. 1362(11) 4 Section 122.2 6, 16, 23

§ 502(12), 33 U.S.C. 1362(12) ........ 5, 13, 15, 16, 19, 21, 3a . Section 122.45(g) 23

§ 502(13), 33 U.S.C. 1362(13) 4 . Pt. 125 a 6

§ 502(14), 33 U.S.C. 1362014) 5, 21, 3a Sections 125.80-125.89 5, 23

§ 505(a), 33 U.S.C. 1365(a) 6 Pt. 132:

Subch. VI, 33 U.S.C. 1381-1387 3 App. F 23

Federal Water Pollution Control Act of 1972,

Pub. L. No. 92-500, 86 Stat. 816 3 Miscellaneous:

Flood Control Act of 1948, ch. 771, § 208, 62 Stat. CERP Website: http:/hwww.evergladesplan.org/ / 9, 11

1175 7 3 Congressional Research Serv., U.S. Library of

i A islative History of

National Environmental Policy Act, 42 U.S.C. 4321 , — — ~~ — 8

g 20 S.C. 4332 * — —— — — fre — and

Resources elopmen m

2 L. No — — — ey „ —

— H.R. Rep. No. 911, 92d Cong., 2d Sess. (1972) 27

— — : Robert Percival et al., Environmental Regulation

§ 528(f), 110 Stat. 3770-3772 8 (3d ed. 2000) 5

Water Resources Development Act of 2000, Pub. L. Webster's Third New International Dictionary

No. 106-541, 114 Stat. 2571: (1993) 16, 22

§ 601(a)(5), 114 Stat. 2680 9

§ 601(b), 114 Stat. 2680 28

§ 601(b)(1)(A), 114 Stat. 2680-2681 9

§ 601(b)(2), 114 Stat. 2681-2683 9

§ SO NAG), 114 Stat. 2681 10

§ 601(b)(2)A)(ii(1I), 114 Stat. 2681 9

§ 601(b)(2(C)(iv), 114 Stat. 2682 10

§ 601(b)(2(C\(v), 114 Stat. 2682 10

§ 602(a), 114 Stat. 2693 7 9

In the Supreme Court of the United States

No. 02-626

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

PETITIONER

V.

MICCOSUKEE TRIBE OF INDIANS, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

Petitioner South Florida Water Management District

(SFWMD) operates an extensive system of levees and

canals. Among other activities, it pumps accumulated water,

which would otherwise flood populated areas, from water

collection canals to water conservation areas within the

Florida Everglades region. The question presented in this

case is whether the Clean Water Act (CWA), 33 U.S.C. 1251

et geg., requires the SFWMD to obtain a permit under the

National Pollution Discharge Elimination System (NPDES)

before engaging in that activity. See CWA § 402, 33 U.S.C.

1342. The United States has a substantial interest in this

question because the Environmental Protection Agency

(EPA) ad. inisters the NPDES permitting program in con-

junction with individual States that have assumed respon-

(1)

2

sibility for issuing permits within their borders. See CWA

§ 402, 33 U.S.C. 1342. The United States has a particular

interest in this case because of its role in implementing the

Comprehensive Everglades Restoration Plan, which the

Secretary of the Army developed in consultation with the

parties to this action and in conjunction with a host of other

federal, state, tribal, regional and local agencies, to address

regional water quality issues. At the Court’s invitation, the

Solicitor General filed a brief amicus curiae in response to

the petition for writ of certiorari. The United States submits

that the court of appeals erred in requiring the SFWMD to

obtain an NPDES permit because the SFWMD’s pumping

activity does not result in “the discharge of any pollutant”

(33 U.S.C. 1342(a)) within the meaning of the Clean Water

Act.

STATEMENT

Petitioner operates numerous water control facilities in

southern Florida, including the C-11 canal, which collects

accumulated water from heavily populated portions of

Broward County, and the S-9 pumping station, which

discharges that water into Water Conservation Area-3A

(WCA-3A), adjacent to the Everglades National Park. Pet.

App. 2a-3a. The pumping station itself does not add any

pollutant into the discharged water. Id. at 3a. The C-11

canal water contains, however, higher levels of phosphorus

than the waters in WCA-3A. Ibid. Respondents, the Mic-

cosukee Tribe of Indians and the Friends of the Everglades,

brought suit in the United States District Court for the

Southern District of Florida, asserting that petitioner must

obtain an NPDES permit under Section 402 of the Clean

Water Act (CWA), 33 U.S.C. 1342, to engage in the pumping

activity. Pet. App. 2a. The district court ruled on summary

judgment that petitioner must obtain an NPDES permit and

granted respondents’ request for an injunction. Ibid. The

court of appeals affirmed the district court’s determination

that a permit was necessary, but vacated the injunction and

remanded the case for further proceedings. Id. at 14a.

A. The Clean Water Act

Congress enacted the Federal Water Pollution Control

Act of 1972, Pub. L. No. 92-500, 86 Stat. 816, to respond com-

prehensively, as a matter of national policy, to the complex

problem of restoring and maintaining the chemical, physical,

and biological integrity of the Nation’s waters. CWA

§ 101(a), 33 U.S.C. 1251(a). That enactment and its amend-

ments, now commonly known as the Clean Water Act, estab-

lish an important role for the federal government, but they

also recognize the primary responsibilities of the individual

States to protect water quality and to manage water re-

sources, including “the authority of each State to allocate

quantities of water within its jurisdiction.” CWA § 101(b)

and (g), 33 U.S.C. 1251(b) and (g).

The Clean Water Act addresses the problem of water

pollution through a multi-faceted federal-state approach that

includes provisions directed to research and related pro-

grams (Subch. I, 33 U.S.C. 1251-1274), grants for construc-

tion of treatment works (Subch. II, 33 U.S.C. 1281-1301), the

establishment and enforcement of standards, including

effluent and water quality standards (Subch. III, 33 U.S.C.

1311-1220), and the issuance of permits and licenses (Subch.

IV, 33 U.S.C. 1341-1346). The Act also contains general pro-

visions, including definitions of key terms (Subch. V, 33

U.S.C. 1361-1377), and provisions respecting grants to States

for water pollution control revolving funds (Subch. VI, 33

U.S.C. 1381-1387).

The focus of the dispute in this case is the Clean Water

Act’s provisions for controlling the discharge of pollutants

into navigable waters. Section 301(a) of the Act states:

Except as in compliance with this section [301] and

[Sections 302, 306, 307, 318, 402 and 404 of the Clean

Water Act], the discharge of any pollutant by any person

shall be unlawful.

33 U.S.C. 1311(a). The identified sections impose various

types of pollution control requirements.

For example, Sections 301 and 302 direct EPA to establish

specified types of effluent limitations. See 33 U.S.C. 1311,

1312; see also 33 U.S.C. 1362(11) (defining “effluent limita-

tion”). Section 306 directs EPA to establish standards of

performance for new sources, 33 U.S.C. 1316, and Section

307 directs EPA to establish standards for toxic pollutants

and pretreatment of discharges into treatment works, 33

U.S.C. 1317. See 33 U.S.C. 1316(a) (defining “standard of

performance” and “new source”); 33 U.S.C. 1362(13) (de-

fining “toxic pollutant”). Section 318 addresses discharges of

pollutants from aquaculture projects. 33 U.S.C. 1328.

This case implicates Section 402, which creates the

NPDES permitting program. See 33 U.S.C. 1342. Section

402(a)(1) provides that EPA (or a qualifying State) “may,

after the opportunity for public hearing issue a permit for

the discharge of any pollutant, or combination of pollutants,

notwithstanding [Section 301(a) of the Clean Water Act],”

upon condition that such discharge will meet specified

requirements. 33 U.S.C. 1342(a)(1). Section 404 establishes

a separate permitting program, administered by the Army

Corps of Engineers, specifically directed to the “discharge of

dredged or fill materials.“ See Borden Ranch P’ship v.

United States Army Corps of Eng’rs, 261 F.3d 810 (9th Cir.

2001), aff'd, 123 S. Ct. 599 (2002) (per curiam). This case does

not involve the discharge of dredged or fill materials, and

that federal permitting program is not at issue in this case.

The Section 402 permitting program regulates the “dis-

charge of any pollutant,” 33 U.S.C. 1342(a)(1), which is a

statutory term of art. Section 502(12) of the Clean Water

Act defines the term “discharge of a pollutant,” in relevant

part, as:

any addition of any pollutant to navigable waters from

any point source.

33 U.S.C. 1362(12). Section 502(6), in turn, defines the term

“pollutant” to include a variety of materials, such as “indus-

trial, municipal, and agricultural waste.” 33 U.S.C. 1362(6).

Section 502(7) defines the term “navigable waters” to mean

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

Section 502(14) defines the term “point source” to mean “any

discernible, confined and discrete conveyance * * * from

which pollutants are or may be discharged.” 33 U.S.C.

1362(14).'

The Clean Water Act’s distinction between point sources

and nonpoint sources reflects an important legislative judg-

ment. Congress recognized that a wide variety of human

and nonhuman activities affect water quality and that the

government’s response to water pollution must be tailored to

the nature of the activity and the severity of the threat. Con-

gress determined that, as a general matter, federal permitt-

ing programs, such as the NPDES regime, are the appro-

priate regulatory response for audressing the addition of

pollutants to the waters of the United States from “discerni-

ble, confined and discrete conveyance{s],” but that different

The Clean Water Act uses, but does not define, the term “nonpoint

source.” CWA §§ 208, 319, 33 U.S.C. 1288, 1329. The textbook examples

of nonpoint sources are various forms of runoff, which reach waterbodies

by flowing over or percolating through topographical features. See, e.g.,

Robert Percival et al., Environmental Regulation 630 (3d ed. 2000);

Pronsolino v. Nastri, 291 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.”), cert.

denied, 123 S. Ct. 2573 (2003).

approaches are the more appropriate response in other cir-

cumstances. '

For example, the Clean Water Act’s NPDES permitting

program typically imposes limitations on a point source

discharge by establishing permissible rates, concentrations,

or quantities of specified constituents at the point where the

discharge stream enters the waters of the United States.

See 33 U.S.C. 1342(a)(1) and (2); see generally 40 C. F. R. Pts.

122, 125; see, e. g., Friends of the Earth, Inc. v. Laidlaw En-

vironmental Services (TOC), Inc., 528 U.S. 167, 174, 176

(2000). The Clean Water Act does not impose, however,

analogous requirements for nonpoint sources. Instead,

Sections 208, 304(f), and 319 encourage the States to develop

local programs, that may include techniques such as land use

requirements, to control nonpoint sources of pollution. See,

e. g., 33 U.S.C. 1288(b)(2)(F); 33 U.S.C. 1314(f), 1313(f), 1329.

The Clean Water Act provides mechanisms for enforcing

the NPDES permit requirements. Section 309 provides that

the government may respond to violations by issuing com-

pliance orders, pursuing injunctive relief, and seeking

criminal and civil penalties. See 33 U.S.C. 1319. Section

505(a) additionally authorizes “any citizen” to commence a

civil action against any person alleged to be in violation of an

effluent standard or limitation under the Act. 33 U.S.C.

1365(a). District courts presiding over such “citizen suits”

have jurisdiction to enforce permit requirements and order

payment of civil penalties as provided in Section 309. [bid.

See, e. g., Friends of the Earth, 528 U.S. at 175-176.

B. The SFWMD’s Water Control Activities

The SFWMD has responsibility for operating water con-

trol facilities in southern Florida, which has unique hydro-

logical characteristics. See Fla. Stat. Ann. § 373.069 (West

Supp. 2003). The dominant feature of the area is the Ever-

glades, a wetlands system that once encompassed much of

— —

southern Florida. To aceommodate human habitation, the

State of Florida and the United States, through the Army

Corps of Engineers (Corps), have constructed elaborate

projects that have altered the natural flow of water. While

water once moved in a slow, unimpeded sheet from Lake

Okeechobee through the Everglades to the sea, it is now

directed through drainage canals and related facilities away

from the heavily populated areas of Broward and Dade

Counties. See Pet. App. 2a-3a.

The SFWMD is the local sponsor of the Corps’ Central

and Southern Florida Project (C&SF Project), a vast system

of levees, canals, water impoundment areas, and other water

control structures. Congress authorized the Corps to con-

struct the C&SF Project in 1948 to promote the multiple

objectives of flood control, drainage, preservation of fish and

wildlife, and control of regional groundwater and salinity in

southern Florida. Flood Control Act of 1948, ch. 771, § 203,

62 Stat. 1175. The SFWMD operates the C&SF Project in

accordance with Corps guidelines. See Pet. 9; Pet. App.

2a-3a.

The SFWMD’s water control activities have been the

subject of previous litigation. In 1988, the United States

brought an action against petitioner and the Florida Depart-

ment of Environmental Regulation, alleging, among other

things, that those agencies allowed phosphorus-polluted

water to be diverted into the Everglades National Park in

violation of state law and federal contracts. See United

States v. South Fla. Water Mgmt. Dist., 847 F. Supp. 1567,

1569 (S.D. Fla. 1992), aff'd in part and rev'd in part, 28 F.3d

1563 (11th Cir. 1994), cert. denied, 514 U.S. 1107 (1995). The

presence of abnormal levels of phosphorus adversely impacts

the unique aquatic flora and fauna of the Everglades system,

which thrive in a phosphorus-restricted environment.

The 1988 lawsuit resulted in a 1992 consent decree that

required petitioner to construct stormwater-treatment

areas, which are marshes designed to filter nutrients from

farm-water runoff that might otherwise adversely affect the

Everglades National Park. See 847 F. Supp. at 1569-1570.

The consent decree also required Florida to establish a per-

mitting program to improve the quality of runoff entering

the Everglades. Ibid. The Florida Legislature later enacted

the Everglades Forever Act of 1994 to facilitate implementa-

tion of the consent decree. See Fla. Stat. Ann. § 373.4592

(West Supp. 2003).

Congress has assisted the State of Florida and the

SFWMD in addressing Everglades water quality issues. In

1996, Congress directed the Secretary of the Army to

develop a “comprehensive plan for the purpose of restoring,

preserving, and protecting the South Florida ecosystem.”

Water Resources Development Act of 1996 (WRDA 1996),

Pub. L. No. 104-303, § 528(b)(1)(A)(i), 110 Stat. 3767. Con-

gress specified that the Secretary’s plan “provide for the

protection of water quality in, and the reduction of the loss of

fresh water from, the Everglades.” Ibid. Congress also

directed the Secretary to include features as “necessary to

provide for the water-related needs of the region, including

flood control, the enhancement of water supplies, and other

objectives served by the Central and Southern Florida

Project.” 110 Stat. 3767, 3768. Congress further directed

the Secretary to develop the plan in coordination wita the

SFWMD and in consultation with the South Florida Eco-

system Restoration Task Force, an intergovernmental body

(with representatives from the SFWMD and one of the

respondents, the Miccosukee Tribe) charged with coordi-

nating the development of federal, state, and tribal policies

and strategies to restore and protect the Everglades.

WRDA 1996 § 528(f), 110 Stat. 3770-3772.

Four years later, Congress approved the Secretary’s

Comprehensive Everglades Restoration Plan (CERP)

through the Water Resources Development Act of 2000

(WRDA 2000), Pub. L. No. 106-541, § 602(a), 114 Stat. 2693.

The CERP provides for modifications of the C&SF Project

to “restore, preserve, and protect the South Florida eco-

system,” including the Everglades, “while providing for

other water-related needs of the region, including water

supply and flood protection.” WRDA 2000 § 601(b)(1)(A) and

(f)(2)(A), 114 Stat. 2680-2681, 2686. Congress specifically

defined the term “South Florida ecosystem” to mean the

area “within the boundary of the South Florida Water

Management District,” including “the Everglades.” WRDA

2000 § 601(a)(5), 114 Stat. 2680.

The CERP is intended, among other things, “to ensure

the protection of water quality in, the reduction of the loss of

fresh water from, and the improvement of the environ-

ment of the South Florida ecosystem.” WRDA 2000

§ 601(b)(1)(A), 114 Stat. 2681. To achieve the CERP’s goals,

Congress has authorized more than one billion dollars in

initial projects. See, e.g., § 601(b)(2), 114 Stat. 2681-2683. In

implementing those projects, the Secretary must “ensure

that all ground water and surface water discharges from any

project feature authorized by this subsection will meet all

applicable water quality standards and applicable water

quality permitting requirements.” § 601(b)(2)(A)(iiXID, 114

Stat. 2681. The Secretary implements those projects in

cooperation with the SFWMD.’”

C. The Water Control Facilities At Issue

The dispute in this case arises from the SFWMD’s epera-

tion of water control facilities that are part of the C&SF

Project. Those facilities transport excess water from areas

of Broward County westward through the C-11 canal to a

2 The CERP is described in detail at the CERP Website: http:/hvww.

evergladesplan.org/.

10

water conservation area, WCA-3A, to prevent flooding of

heavily populated residential and commercial areas.

The Army Corps of Engineers initially constructed what

is now known as the C-11 canal to facilitate drainage and

development of Broward County. Later, as part of the

C&SF Project, the Corps built two north-south levees, L-33

and L-37, which form the western boundary of the C-11

basin and create WCA-3A, which extends west of the levees.

Pet. App. 3a & n.2, 8a & n.8, 28a. The C&SF Project added

the S-9 pumping station to transport water from the C-11

canal, through the L-33 and L-37 levees, into WCA-3A. The

S-9 pumping station is located where the two levees meet, at

the north end of L-33 and the south end of L-37. Petitioner

now operates the S-9 pumping station, which is the specific

facility at issue in this case. See Pet. App. 2a-3a; see also

Pet. 9-10.

The S-9 pumping station transports the run-off collected

by the C-11 canal, as well as seepage from WCA-3A into the

C-11 basin, through three pipes that discharge water into

WCA-3A at the rate of 960 cubic feet per second per pipe.

Petitioner has obtained a water quality permit for the S-9

pumping station pursuant to the Everglades Forever Act.

See Pet. 12; Fla. Stat. Ann. § 373.4592(9)(k) and (1) (West

Supp. 2003). See also WRDA 2000 § 601(b)(2)A)(Gii(D, 114

Stat. 2681 (requiring that CERP projects “take into account

the protection of water quality by considering applicable

State water quality standards“).

3 A significant amount of water seeps from WCA-3A through the

levees into the C-11 basin. As part of the CERP, Congress has authorized

a levee seepage management project for WCA-3A and a neighboring

water conservation area at a total cost of $100,335,000. WRDA 2000

OI NC), 114 Stat. 2682. That project, which is scheduled to begin

in September 2004, will be located just south of the S-9 pumping station.

Congress also authorized $124,837,000 for a C-11 impoundment and storm-

water treatment area. WRDA 2000 § GO N N, 114 Stat. 2682. That

11

The 8-9 pumping station transports water from the C-11

canal to WCA-3A, but it does not add anything to the waters

being pumped. The water that the C-11 canal collects and

that the S-9 pumping station conveys, however, contains

phosphorus at levels higher than those found in WCA-3A.

The excessive phosphorus originates from the various point

and nonpoint sources that drain into the C-11 canal. See Pet.

App. 3a.

D. The Proceedings In This Case

Respondents brought this citizen suit under Section 505 of

the CWA, 33 U.S.C. 1365, alleging that the SFWMD is in

violation of Section 301(a) of the Clean Water Act, 33 U.S.C.

1311(a). Respondents specifically alleged that the Clean

Water Act requires the SFWMD to obtain an NPDES per-

mit pursuant to Section 402, 33 U.S.C. 1342, for operation of

the S-9 pumping station. In respondents’ view, the

operation of the S-9 pumping station results in the addition

of a pollutant to navigable waters from a point source. See

Pet. App. 2a, 17a-18a, 20a-21a.

On cross-motions for summary judgment, the district

court denied the SFWMD’s motion and granted summary

judgment to respondents. Pet. App. 2a, 20a-2la, 3la-32a.

The district court first noted the parties’ agreement that, for

purposes of the Clean Water Act, the C-11 canal and WCA-

3A are “navigable waters” and the water that the S-9 pump-

ing station pumps into WCA-3A contains pollutantſs].“ Id.

at 2la. It then concluded that “an addition of pollutants

exists because undisputedly water containing pollutants is

being discharged through S-9 from C-11 waters into the

Everglades, both of which are separate bodies of United

pro eet will manage the runoff from the western C-11 basin by capturing it

in a stormwater impoundment for treatment before it enters WCA-3A.

Those projects are described in detail at the CERP Website: http:/hwww.

evergladesplan.org/

12

States water with * different quality levels.” Id. at

28a. The court further concluded that the S-9 pumping

station “is a point source for which a NPDES permit is re-

quired.” Jd. at 29a. The district court enjoined the SFWMD

from operating the S-9 pumping station without an NPDES

permit, but stayed its ruling pending appeal. Id. at 2a, 12a &

n.12, 31a-32a.

The court of appeals affirmed “the district court’s judg-

ment that the [SFWMD)] violated the Clean Water Act,” but

vacated the injunction and remanded for further | ro-

ceedings. Pet. App. 14a. The court of appeals conclua d

“that an addition from a point source occurs if a point source

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

waters,” id. at 7a, and that the S-9 pump station added

pollutants to WCA-3A because, except for the operation of

that pump station, the polluted waters from the C-11 canal

would not have flowed there. Id. at 7a-9a. The court of

appeals nevertheless vacated the district court’s injunction

because “the district court could not have correctly balanced

the possible harms—especially the harm to the public—

caused by the enjoinment of S-9 against the benefits when it

granted its injunction.” Id. at 13a. Instead, the court of

appeals directed the district court to “order the [SFWMD] to

obtain an NPDES permit within some reasonable time

period.” Id. at 14a.

SUMMARY OF ARGUMENT

The Clean Water Act does not require the SFWMD to

obtain an NPDES permit for its S-9 pumping station, which

merely conveys navigable waters from a water collection

canal to a water conservation area. Congress did not intend

to impose the NPDES permitting requirements on that

water control facility or on the many comparable facilities

throughout the Nation that do no more than corvey or con-

nect navigable waters. Rather, Congress contemplated that

—— — —2

„

13

water quality issues arising from the transportation of

navigable waters would generally be addressed through

federal and state mechanisms other than the NPDES per-

mitting program.

A. Section 402(a) of the Clean Water Act requires an

NPDES permit for the “discharge of any pollutant,” which

Section 502(12) of the Act defines as “any addition of any

pollutant to navigable waters from any point source.” 33

U.S.C. 1342(a), 33 U.S.C. 1362(12). The S-9 pumping station

does not add pollutants to “navigable waters,” which Section

502(7) further defines as “the waters of the United States,”

33 U.S.C. 1362(7). Rather, the pumping station merely

transports navigable waters from one location to another.

Any pollutants in the C-11 canal are already in “the waters

of the United States” when those waters enter the S-9

pumping station for discharge into the WCA-3A water

conservation area. The pumping station accordingly does

not introduce any pollutants into the waters of the United

States from the outside world. The same result follows

whether the C-11 canal and the water conservation area are

viewed as a single body or separate bodies of navigable

water. In either case, the S-9 pumping station transports

“waters of the United States” that already contain pollutants

from one location to another; it does not add pollutants to

“the waters of the United States.”

B. The court of appeals erred in concluding that a point

source adds a pollutant whenever the point source might be

characterized as the “cause-in-fact” of the presence of pollu-

tants in a navigable waterbody. That test reaches far be-

yond the Clean Water Act’s terms, which define a “discharge

of a pollutant” to mean the actual release of pollutants into

“the waters of the United States.” The court correctly re-

jected the notion that pollutants can be added “from” a point

source only if the point source itself generates or is the

originating source of the pollutants. But it is not the case

14

that the point source need only be a “but-for cause” of the

presence of pollution in a particular body of navigable

waters. The point source must do more than merely convey

or connect navigable waters that already contain pollutants.

Rather, it must convey a material that qualifies as a pollu-

tant from the outside world into “the waters of the United

States.”

C. The Clean Water Act, read as a whole, fully supports

the conclusion that Section 402 does not require an NPDES

permit for water control facilities that merely convey or

connect navigable waters. Congress recognized that the

States have important responsibilities in distributing and

allocating water and that the Clean Water Act’s require-

ments should not unduly interfere with those responsi-

bilities. Congress also made clear that many serious water

quality issues, such as the problem of nonpoint source

pollution, must be addressed through mechanisms other than

the NPDES permitting program. The Clean Water Act, as

well as other federal legislation, accordingly provides alter-

native means for addressing water quality issues that result

from the construction and operation of water resource

development projects. Congress and the State of Florida

have specifically provided mechanisms for comprehensively

addressing the water quality issues in the South Florida

ecosystem. The court of appeals’ mistaken imposition of

NPDES permitting requirements on the S-9 pumping sta-

tion is unlikely to provide any substantial environmental

benefits. Rather, it would likely misdirect governmental

resources and potentially hinder the Everglades restoration

process.

aa ci TT SET

rr

15

ARGUMENT

THE CLEAN WATER ACT DOES NOT REQUIRE

THE SFWMD TO OBTAIN AN NPDES PERMIT FOR

OPERATION OF WATER CONTROL FACILITIES

THAT MERELY CONVEY OR CONNECT NAVIGABLE

WATERS

The Clean Water Act requires the SFWMD to obtain an

NPDES permit if the SFWMD’s activities add a pollutant to

navigable waters from a point source. The Act does not

require an NPDES permit, however, for activities that

involve nothing more than conveyance or connection of

navigable waters. Nor does it require an NPDES permit

simply because a point source might be described as “the

cause-in-fact” of a release of pollutants into navigable

waters. The text and structure of the Clean Water Act

make clear that Congress had no intention to subject

ordinary water control and distribution activities, including

the typical operation of flood control projects, reclamation

projects, and other such water diversion projects, to the

NPDES permitting regime. Rather, Congress determined

that the water quality issues arising from those activities

should be addressed through other programs that provide

alternative means of achieving the Clean Water Act’s goals.

A. The Clean Water Act’s Definition Of “Discharge Of A

Pollutant” Does Not Include Activities That Merely

Convey Or Connect Navigable Waters

The Clean Water Act’s NPDES permitting requirements,

set out in Section 402, apply only to the “discharge of any

pollutant.” 33 U.S.C. 1342(a). Section 502(12) of the Clean

Water Act defines “discharge of a pollutant,” in relevant

part, as “any addition of any pollutant to navigable waters

from any point source.” 33 U.S.C. 1362(12). That definition

hae a broad reach, but it does not, by its express terms,

include the operation of the S-9 pumping station, which

16

merely transfers concededly “navigable waters” from a

water collection canal through a levee to a water conserva-

tion area.

Section 502(12) makes clear that, in order to qualify as a

“discharge of a pollutant,” the activity must add a pollutant

from a “point source” to “navigable waters,” which are de-

fined as “the waters of the United States.” 33 U.S.C.

1362(12); see CWA § 502(7), 33 U.S.C. 1362(7); 40 C.F.R.

122.2. Section 502(12) cannot reasonably be understood to

include an activity that merely transports navigable waters

from one location, through a “point source,” to another loca-

tion. Such an activity can conceivably lead to changes in

water quality, but it does not, within the normal meaning of

the relevant terms, constitute an “addition” of any pollutant

to “the waters of the United States.” See Webster’s Third

New International Dictionary 24 (1993) (defining “addition”

in relevant part, as “the joining or uniting of one thing to

another”). Whatever pollutants the waters contain are

already in “the waters of the United States” when those

waters pass through the “point source.” The point source

merely conveys those waters, which retain their status as

~navigable waters.

For example, a water resources project might require the

transportation of navigable waters to a reservoir for reten-

tion and later release, and the storage of the water may

induce changes in water quality and pollutant levels, in-

cluding, for example, changes in chemical, physical, and bio-

logical characteristics. Nevertheless, EPA and the lower

courts have long recognized that the process of merely trans-

porting, impounding, and releasing navigable waters that

may already contain pollutants does not constitute an “addi-

tion” of pollutants to “the waters of the United States” in the

sense that the Clean Water Act uses those terms. Rather,

an “addition from a point source occurs only if the point

source itself physically introduces a pollutant into water

*

K

17

from the outside world.” National Wildlife Fed’n v. Con-

sumers Power Co., 862 F.2d 580, 584 (6th Cir. 1988);

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

Cir. 1982). -

in Gorsuch, environmental plaintiffs petitioned EPA to

impose NPDES permit requirements on dams that stored

and periodically released water. The impoundment and

release of stored water resulted in “dam-induced changes,”

including low dissolved oxygen, dissolved minerals and nu-

trients, temperature changes, and supersaturation. 693 F.2d

at 161-164. The District of Columbia Circuit concluded, in

accordance with EPA’s views, that the dam operator did not

need to obtain an NPDES permit. Id. at 161, 170-183.

Similarly, in Consumers Power, environmental plaintiffs

sought to impose NPDES permit requirements on a hydro-

electric facility that drew water from Lake Michigan into a

man-made impoundment above a dam and generated power

by discharging the lake water back into the lake through the

dam’s turbines. 862 F.2d at 581-583. Like the District of

Columbia Circuit, the Sixth Circuit agreed with EPA’s posi-

tion that the dam operator did not need to obtain an NPDES

permit, stating that the “facility’s movement of pollutants

already in the water is not an ‘addition’ of pollutants to

navigable waters of the United States.” Jd. at 581. See id. at

586 (the pollutants “always remain within the waters of the

United States, and hence cannot be added“).

The Sixth Circuit and the District of Columbia Circuit each

grounded its decision, in significant part, on deference to EPA's views.

See Consumers Power, 862 F. 2d at 584; Gorsuch, 693 F. 2d at 161, 170-183.

That result also follows based on a straightforward reading of the Clean

Water Act’s text. See Missouri ex rel. Ashcroft v. Department of the

Army, 672 F. 2d 1297, 1303-1304 (8th Cir. 1982) (holding that dam-induced

changes in water quality such as soil erosion and reduced oxygen did not

constitute the addition of a pollutant from a point source).

18

Three courts of appeals, including the court of appeals

below, have nevertheless suggested that a distinction should

be drawn if the water control facility transfers water

between two separate bodies of water. Pet. App. 7a-8a & nn.

7-8; Catskill Mountains Chapter of Trout Unlimited, Inc. v.

City of New York, 273 F.3d 481, 490-492 (2d Cir. 2001);

Dubois v. United States Dep’t of Agriculture, 102 F.3d 1273,

1296-1299 (Ist Cir. 1996), cert. denied, 521 U.S. 1119 (1997).

The court of appeals in this case, for example, reasoned that,

while the C-11 canal and WCA-3A are “waters of the United

States,” they are “two separate and distinct bodies of

water.” Pet. App. Sa n.8. The First Circuit in Dubois and

the Second Circuit in Catskill Mountains reached similar

conclusions under somewhat different facts. See id. at 8a

n.7.°

The United States submits that the distinction suggested

by those courts is unsound. The determination whether an

NPDES permit is required should not depend on whether

the water control facility at issue conveys waters of the

United States from one location to another or whether it

connects what are arguably two distinct bodies of navigable

waters. So long as the water control facility at issue does not

5 In Dubois, a ski resort proposed to transfer water from a river at the

base of the ski slope, use it to operate snow-making equipment, and then

discharge it into Loon Pond, a small naturally occurring lake, at a higher

elevation. 102 F.3d at 1296-1297. The river would not normally flow into

the pond, which was colder and had lower levels of phosphorus. Id. at

1298-1299. The court held that, regardless of whether the resort’s snow-

making equipment contributed additional pollutants, the transfer required

an NPDES permit. /d. at 1296 n.29. Similarly, in Catskill Mountains, the

court of appeals held that the City of New York’s transfer of water

allegedly containing suspended solids through a several-mile-long tunnel

from a reservoir into a creek, which was naturally clearer and cooler than

the reservoir and which the water would otherwise not reach, would also

qualify as an “addition” of a pollutant that required an NPDES permit.

273 F.3d at 484-485, 492.

19

add pollutants to “the waters of the United States,” an

NPDES permit is not required. See Gorsuch, 693 F.2d at

175 (noting the United States’ longstanding view that “the

point or nonpoint character of pollution * * * does not

change when the polluted water later passes through the

dam from one body of navigable water (the reservoir) to

another (the downstream river)”).

The Clean Water Act’s definitions support that conclusion.

Section 510(12) defines the “discharge of a pollutant” to in-

clude “any addition of any pollutant to navigable waters

from any point source.” 33 U.S.C. 1362(12) (emphasis

added). Its use of the modifier “any” with reference to

“addition,” “pollutant,” and “point source” expresses Con-

gress’s understanding that the various types of additions,

pollutants, and point sources are all within the Clean Water

Act’s regulatory reach. The absence of the modifier “any” in

conjunction with “navigable waters,” by contrast, signifies

Congress’s further understanding that “the waters of the

United States” should be viewed as a whole for purposes

of NPDES permitting requirements. Once a pollutant is

present in one part of “the waters of the United States,” its

simple conveyance to a different part is not a “discharge of a

pollutant” within the meaning of the Act.

If Congress had intended that the movement of one body

of navigable waters into another body of navigable waters

should be treated as the addition of a pollutant to navigable

waters, it would have made that extraordinary intention

manifest. At the least, it would have defined the “discharge

of a pollutant” to include “any addition of any pollutant to [a

specific portion of the] navigable waters from any point

source,” 33 U.S.C. 1362(12). Indeed, Congress elsewhere

used precisely that type of phrase when it intended to refer

to only a portion of “the waters of the United States,” rather

than the whole. See CWA § 302(a) 33 U.S.C. 1312(a) (“a

specific portion of the navigable waters”). Congress would

20

not have extended NPDES permitting requirements to

potentially thousands of water diversion facilities without

any textual acknowledgment of that intention.

The court of appeals’ distinction would also lead to incon-

gruous and unmanageable results. As this case indicates, it

is no simple matter to distinguish between “separate and

distinct bodies of water.” Pet. App. 8a n.8. The court of

appeals recognized that the waters comprising the C-11

basin and the WCA-3A are hydrologically related and that,

blut for man’s intervention, these waters would essentially

be a single body of navigable water.” Ibid. The court pro-

vided no principled basis for treating the C-11 canal and

WCA-3A as two separate bodies of water beyond the fact

that “without the operation of the S-9 pump station,” the

water in the C-11 canal “would not normally flow” into

WCA-3A. Id. at 8a. That mechanical test ignores the fact

that those waters share a close hydrological association and

are managed as a single water resource. Under the court of

appeals’ view, virtually any pumping station, dam, water

diversion facility, or control valve could be viewed as creat-

ing “two separate and distinct bodies of water.” Id. at 8a n.8.

The Court has no need to engage in the fruitless task of

attempting to fashion a test that distinguishes between

single and multiple waterbodies, because the Clean Water

Act does not require any such test in this context. Section

402 requires a permit only if there is an addition of a

pollutant to “the waters of the United States.” An NPDES

permit is unnecessary if the water control facility does no

more than convey or connect such waters.

21

B. The Clean Water Act Does Not Require An NPDES

Permit For Every Discharge From A Point Source That

Might Be Described As “The Cause-In-Fact” Of The

Release Of Pollutants Into Navigable Waters

The court of appeals’ ruling that the SFWMD must obtain

an NPDES permit for the S-9 pumping station should be

reversed for the straightforward reason that the pumping

station does not “add” pollutants to “the waters of the

United States.” Accordingly, there is no occasion to address

the additional question whether the supposed addition was

“from any point source.” See CWA § 502(12), 33 U.S.C.

1362(12). Nevertheless, the court of appeals reached that

issue, and it incorrectly concluded that “an addition from a

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

the release of pollutants into navigable waters.” Pet. App.

7a.

The court of appeals correctly rejected the SFWMD’s

argument (Pet. 20) that pollutants are added “from” a point

source only if the point source itself is the origin of the

pollutants. See Pet. App. 7a n.6. The District of Columbia

Circuit rejected that interpretation more than 20 years ago.

See Gorsuch, 693 F.2d at 175 n.58. A “point source” is, by

statutory definition, a “discernible, confined, and discrete

conveyance.” CWA § 502(14), 33 U.S.C. 1362(14) (emphasis

added). That definition signifies that a point source itself

need not generate or be the originating source of the pollu-

tant; it need only convey the pollutant into “the waters of the

United States.” That understanding is consistent with

Section 502(14)’s representative examples, which include a

“pipe, ditch, channel, tunnel, [and] conduit.” 33 U.S.C.

1362(14). Those objects all typically transport, rather than

generate, pollutants, such as “sewage,” “biological mate-

22

rials,“ and “industrial, municipal, and agricultural waste,”

CWA § 502(6), 33 U.S.C. 1362(6).°

The court of appeals erred, however, in concluding at the

other extreme that “the relevant inquiry is whether—but for

the point source—the pollutants would have been added to

the receiving body of water.” Pet. App. 7a. The court

reasoned that this result follows from the dictionary defini-

tion of “from,” which can connote the “agent or instrumental-

ity” or the “cause or reason.” Id. at 7a n.6. The more apt

definition, however, particularly in the context of a “point

source,” connotes a physical relationship, such as “a point or

place where an actual physical movement * * * has its

beginning.” Webster's Third New International Dictionary

913 (1993). As explained above, Section 502(12)’s definition

of the “discharge of a pollutant” is intended to encompass the

actual release of a pollutant into “the waters of the United

States.” This case illustrates the distinction. The S-9 pump-

ing station does not add pollutants to the waters of the

United States “from any point source” because the pumping

station does not physically add anything into those waters;

instead, it merely conveys or connects navigable waters,

which already contain pollutants.”

—

6 A requirement that a point source be the “original source” of a

pollutant would also be inconsistent with the Clean Water Act’s manifest

aim to impose permitting requirements on facilities, such as publicly

owned treatment works and municipal storm sewer systems, that do not

themselves generate the pollutants in the water they treat, but do

introduce those pollutants into the navigable waters. See CWA

$§ 301(b)(1)(B), 402(p), 33 U.S.C. 1311(6)(1)(B), 1342(p).

The activities at issue here stand in sharp contrast to other activities

that have long been subject to the Clean Water Act’s permitting require-

ments. For example, Section 402 subjects placer mining of ore deposits in

streams and rivers to the NPDES permitting program because the

process results in the excavation and point source discharge of dirt and

gravel into navigable waters. See Rybachek v. EPA, 904 F.2d 1276, 1285

(9th Cir. 1990). Similarly, Section 404 of the Clean Water Act, which

r

23

The court of appeals’ misdirected analysis highlights,

however, a different and significant point. A pumping sta-

tion or other water diversion facility may in fact add a pollu-

tant to navigable waters if it does more than merely convey

or connect those waters. For example, if the pumping

station leaks oil, grease, or other pollutants into those

waters, that addition is subject to NPDES permitting

requirements. See Consumers Power, 862 F.2d at 586;

Gorsuch, 693 F.2d at 165 n.22. Furthermore, if water is di-

verted from navigable waters for an intervening use, the

water may lose its status as “waters of the United States”

and consequently become subject, upon its reintroduction

into navigable waters, to the NPDES permitting process.

For example, an NPDES permit is normally required if an

industrial user withdraws water from a navigable waterbody

for process or cooling purposes and returns the used water

into the same waterbody through a point source.” Similarly,

specifically addresses dredge and fill activities, subjects the deposit or

redeposit of dredged or fill material to a specialized permitting program

because that activity results in the point source discharge of those

materials into navigable waters. See 33 U.S.C. 1344; United States v.

Deaton, 209 F. 3d 331, 335-336 (4th Cir. 2000); United States v. M. C. C. of

Fla., Inc., 772 F.2d 1501, 1503-1506 (11th Cir. 1985), vacated on other

grounds, 481 U.S. 1034 (1987), readopted in relevant part, 848 F.2d 1133

(Iich Cir. 1988); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d

897, 923-925 (5th Cir. 1983).

8 EPA has long imposed NPDES requirements on entities that

withdraw process water or cooling water and then return some or all of

the water through a point source. See, ¢.g., 40 C. F. R. 122.2 (definition of

process wastewater); 40 C.F.R. 125.80-125.89 (regulation of cooling

towers). EPA's regulations address pollutants that are contained in water

withdrawn by a facility (“intake pollutants”) that are subsequently

returned to waters of the United States. See 40 C.F.R.122.45(g)

(regulations governing intake pollutants for technology-based permitting);

40 C.F.R. Pt. 132, App. F Procedure 5-D and 5-E (containing regulations

-~

24

an NPDES permit is normally required if a facility with-

draws water from a navigable waterbody, removes pre-

existing pollutants to purify the water, and then discharges

the removed pollutants (perhaps in concentrated form) back

into the navigable waterbody while retaining the purified

water for use in the facility.

The question whether a particular water control facility

adds or redeposits pollutants, and the question whether

waters have lost their character as “waters of the United

States” through intervening use, depend on the facts of the

particular case. There is no reason to conclude, however,

that the waters at issue in this case—and, most likely, the

vast majority of waters that pass through pumping stations,

dams, and water diversion facilities—are subject to NPDES

requirements on those bases.

governing water-quality-based permitting of intake pollutants in the

Great Lakes).

Por example, drinking water treatment facilities withdraw water

from streams, rivers, and lakes. The withdrawn water typically contains

suspended solids, which must be removed to make the water potable. The

removed solids are a waste material from the treatment process and, if

discharged into navigable waters, are subject to NPDES permitting

requirements, even though that waste material originated in the with-

drawn water. See, eg, In re City of Phoenix, Arizona Squaw Peak &

Deer Valley Water Treatment Plants, 9 E.A.D. 515, 2000 WL 1664964

(EPA Envtl. App. Bd. Nov. 1, 2000) (rejecting, on procedural grounds,

challenges to NPDES permits for two drinking water treatment plants

that draw raw water from the Arizona Canal, remove suspended solids to

purify the water, and discharge the solids back into the Canal); Final

NPDES General Permits for Water Treatment Facility Discharges in the

States of Massachusetts and New Hampshire, 65 Fed. Reg. 69,000 (2000)

(NPDES permits for discharges of process waste waters from drinking

water treatment plants).

10 For example, the courts have long treated water that passes through

dams, including associated power generation facilities, as retaining its

character as navigable waters. See Consumers Power, 862 F. 2d at 585-

586; see also Gorsuch, 693 F.2d at 174-175. A fortiori, water that merely

— — —

—

25

C. The Clean Water Act Expresses Congress s Under -

standing That Facilities That Merely Convey Or Con-

nect Navigable Waters Would Be Regulated Through

Means Other Than the NPDES Permitting Program

The Clean Water Act, read as a whole, fully supports the

conclusion that the NPDES permitting requirements do not

apply to water control facilities that merely convey or con-

nect navigable waters. The Act imposes a variety of regula-

tory initiatives in addition to the NPDES permitting pro-

gram. It also recognizes that the States have primary re-

sponsibilities with respect to the “development and use (in-

cluding restoration, preservation, and enhancement) of land

and water resources.” 33 U.S.C. 1251(b). The Clean Water

Act expresses the understanding that, as a general matter,

water control facilities that merely transport “the waters of

the United States” to where they can be most beneficially

used are not subject to the NPDES regime."

passes through a pumping station—without any intervening use or change

in composition—retains that character as well.

Congress also made clear that the Clean Water Act is to be cons-

trued in a manner that does not unduly interfere with the ability of States

to allocate water within their boundaries, stating: “It is the policy of

Congress that the authority of each State to allocate quantities of water

within its jurisdiction shall not be superseded, abrogated or otherwise

impaired by (the Act. CWA § 101(g), 33 U.S.C. 1251(g). The legislative

history reveals that “(ijt is the purpose of this [provision] to insure that

State [water] allocation systems are not subverted.” 3 Congressional

Research Serv., U.S. Library of Congress, Serial No. 95-14, A Legislative

History of the Clean Water Act of 1977, at 532 (1978); see PUD No. 1 of

Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 721 (1994).

The court of appeals’ interpretation is in considerable tension with that

congressional policy, because it could impose substantial obstacles to the

operation of state water allocation systems. Indeed, while the court of

appeals did not address the question, the rule of law adopted below could

conceivably be viewed as imposing NPDES permitting requirements on

an array of major water projects in the western United States, where

Congress could have expressly subjected water control

facilities to the NPDES permitting program, but, as ex-

plained above, it did not. Instead, Congress directed EPA to

provide federal, State, and area-wide planning agencies with

information on “processes, procedures, and methods to con-

trol pollution resulting from,” among other things,

changes in the movement, flow, or circulation of any

navigable waters or ground waters, including changes

caused by the construction of dams, levees, channels,

causeways, or flow diversion facilities.

CWA S 304(f)(2)(F), 33 U.S.C. 1314(f)(2)(F). Congress

clearly understood that water control facilities could have an

impact on water quality, but it concluded that those water

quality impacts should be addressed primarily through

means other than the Section 402 permitting process.

Indeed, Congress recognized that the water quality issues

arising from water control facilities are closely associated

with “nonpoint sources” of pollution. The House Report, in

its discussion of what ultimately became Section 304(f),

emphasizes this point:

Section 304 [f] addresses the problem of nonpoint sources

of pollutants. This Section and the information on such

nonpoint sources is among the most important in the

1972 Amendments. If our water pollution problems are

to be truly solved, we are going to have to vigorously ad-

dress the problems of nonpoint sources. The Committee,

therefore, expects the Administrator to be most diligent

projects such as California’s Central Valle Project move vast quantities

of water among and within various bodies of water in order to meet a wide

range of agricultural and other needs. See, e., California v. United

States, 438 U.S. 645 (1978). Nothing in the Clean Water Act’s text or

history suggests that Congress intended that result. See id. at 653 (noting

the “consistent thread of purposeful and continued deference to state

water law by Congress”).

27

in gathering and distribution of the guidelines for the

identification of nonpoint sources and the information on

processes, procedures, and methods for control of

pollution from such nonpoint sources as * * * natural

and man made changes in the normal flow of surface and

ground waters.

H.R. Rep. No. 911, 92d Cong., 2d Sess. 109 (1972).

Congress recognized that the operators of water control

facilities are typically not responsible for the presence of

pollutants in the waters they transport. Rather, those

pollutants often enter “the waters of the United States”

through sources located far from those facilities and beyond

control of the project operators. Indeed, many of the water

quality problems associated with the South Florida eco-

system, which originate with urban or agricultural runoff,

reflect that reality. Congress properly envisioned that the

project operators should not be saddled with curing those

regional water quality problems through the Clean Water

Act’s NPDES permitting regime. Instead, those problems

are more sensibly addressed through water resource plan-

ning and land use regulations, which attack the problem at

its source. See, e.g., CWA § 102(b), 33 U.S.C. 1252(b) (reser-

voir planning); CWA § 208(b)(2)(F), 33 U.S.C. 1288(b)(2)(F)

(land use planning to reduce agricultural nonpoint sources of

pollution); CWA § 319, 33 U.S.C. 1329 (nonpoint source

management programs); see also CWA § 401, 33 U.S.C. 1341

(state certification of federally licensed projects).

Water control facilities are also frequently subject to

federal and state legislation, apart from the Clean Water

Act, that identifies and addresses associated water quality

issues. For example, federally funded projects invariably

require executive recommendations and congressional

authorization, which in turn trigger legislation such as the

National Environmental Policy Act (NEPA), 42 U.S.C. 4321

et seq. NEPA requires that agencies include in every pro-

posal for major Federal action significantly affecting the

quality of the human environment a detailed statement of

the project’s environmental impact. 42 U.S.C. 4332. See,

e.g., Marsh v. Oregon Natural Res. Council, 490 U.S. 360

(1989) (applying NEPA to the Rogue River Basin federal

water project).

As this case illustrates, Congress and affected States may

themselves specify and fund particular initiatives to address

water quality issues. Congress has authorized the CERP,

which sets out a comprehensive integrated approach, sup-

ported by extensive federal funding, to restore the South

Florida ecosystem. See WRDA 2000 § 601(b), 114 Stat. 2680-

2681. The CERP not only addresses the impact of excessive

phosphorus on that ecosystem, but it also addresses a host of

other problems that affect regional water quality. That

integrated approach will ensure that the water quality

concerns of the area are resolved in a comprehensive manner

that takes account of both water quality and water quantity

issues. Florida, for its part, has enacted the Everglades

Forever Act, which also addresses the ecosystem problems

comprehensively. That Act specifically establishes a state

permitting system for C&SF Project structures that dis-

charge into the Everglades Protection Area, including the S-

9 pumping station. See p. 10, supra.

Against this backdrop of concerted federal and state

action, the imposition of NPDES permitting requirements is

unlikely to serve any useful purpose. The respondents’

insistence on the imposition of Clean Water Act require-

ments designed to address distinctly different issues would

ultimately misdirect governmental resources toward un-

necessary or duplicative processes and potentially hinder the

Everglades restoration process.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

SEPTEMBER 2003

THEODORE B. OLSON

Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JEFFREY BOSSERT CLARK

Deputy Assistant Attorney

General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

JAMES C. KILBOURNE

ELLEN DURKEE

SYLVIA QUAST

Attorneys

earner

ADDENDUM

Pertinent Provisions of The Clean Water Act

Section 101, 33 U.S.C. 1251. Congressional declaration

of goals and policy

* * * * *

(g) Authority of States over water

It is the policy of Congress that the authority of each

State to allocate quantities of water within its jurisdiction

shall not be superseded, abrogated, or otherwise impaired by

this chapter. It is the further policy of Congress that noth-

ing in this chapter shall be construed to supersede or abro-

gate rights to quantities of water which have been estab-

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

State and local agencies to develop comprehensive solutions

to prevent, reduce and eliminate pollution in concert with

programs for managing water resources.

Section 301, 33 U.S.C. 1311. Effluent limitations

(a) IIlegality of pollutant discharges except in com-

pliance with law

Except as in compliance with this section and sections

1312, 1316, 1317, 1328, 1342, and 1344 of this title, the dis-

charge of any pollutant by any person shall be unlawful.

* * * * *

Section 304, 33 U.S.C. 1314. Information and guidelines

* * * * *

(la)

2a

(f) Identification and evaluation of nonpoint sources

of pollution; processes, procedures, and methods

to control pollution

The Administrator, after consultation with appropriate

Federal and State agencies and other interested persons,

shall issue to appropriate Federal agencies, the States,

water pollution control agencies, and agencies designated

under section 1288 of this title * * * information including

(1) guidelines for identifying and evaluating the nature and

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

procedures, and methods to control pollution resulting

from—

* * * * *

(F) changes in the movement, flow, or eireulation of

any navigable waters or ground waters, ineluding

changes caused by the construction of dams, levees,

channels, causeways, or flow diversion facilities.

* * * * *

Section 402, 33 U.S.C. 1342. National pollutant dis-

charge elimination system

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344 of this

title, the Administrator may, after opportunity for public

hearing, issue a permit for the discharge of any pollutant, or

combination of pollutants, notwithstanding section 1311(a) of

this title, upon condition that such discharge will meet either

(A) all applicable requirements under sections 1311, 1312,

1316, 1317, 1318 and 1343 of this title, or (B) prior to the

taking of necessary implementing actions relating to all such

requirements, such conditions as the Administrator deter-

3a

mines are necessary to carry out the provisions of this

chapter.

* * * * *

Section 502, 33 U.S.C. 1362. Definitions

Except as otherwise specifically provided, when used in

this chapter:

* * * * *

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

waste, incinerator residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock, sand,

cellar dirt and industrial, municipal, and agricultural waste

discharged into water. This term does not mean (A) “sewage

from vessels or a discharge incidental to the normal opera-

tion of a vessel of the Armed Forces” within the meaning of

section 1322 of this title; or (B) water, gas, or other material

which is injected into a well to facilitate production of oil or

gas, or water derived in association with oil or gas pro-

duction and disposed of in a well, if the well used either to

facilitate production or for disposal purposes is approved by

authority of the State in which the well is located, and if such

State determines that such injection or disposal will not

result in the degradation of ground or surface water re-

sources.

(7) The term “navigable waters” means the waters of the

United States, including the territorial seas.

* * * * *

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

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

pollutant to navigable waters from any point source, (B) any

addition of any pollutant to the waters of the contiguous zone

4a

or the ocean from any point source other than a vessel or

other floating craft.

* * * * *

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

confined and discrete conveyance, including but not limited

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

fissure, container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which

pollutants are or may be discharged. This term does not in-

clude agricultural stormwater discharges and return flows

from irrigated agriculture.

* * * * *

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

cation includes a discharge of a pollutant, and a discharge of

pollutants.