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

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## Record

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

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A18. Public record. Not legal advice.