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

~ BIBED

SEP 1 0 2005

2D}

No. 02-626

IN THE

Supreme Court of the United States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT.

Petitioner.

Vv.

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, ef al..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR AMICI CURIAE FLORIDA FRUIT AND

VEGETABLE ASSOCATION, FLORIDA FARM

BUREAU FEDERATION, AMERICAN FAM BUREAU

FEDERATION, and CHARLES H. BRONSON, as the

FLORIDA COMMISSIONER OF AGRICULTURE

IN SUPPORT OF PETITIONER

JOUN J. RADEMACHER TERRY COLI

General Counsel Counsel of Record

AMERICAN FARM BUREAU PATRICIA A. RENOVITCH

FEDERATION OPRTEL, FERNANDEZ

225 Touhy Avenue & COLE, PLA.

Park Ridge, IL 60068 301 S. Bronough Street

(847) 685-8600 Suite 500

Tallahassee. FL 32301

JOUN W. COSTIGAN

Senior Attorney

CHARLES H. BRONSON, as the Counsel for Amici Curiae

Florida Commissioner of

Agriculture

407 S. Calhoun St., 520 Mayo Bldg.

Tallahassee, FL 32399

(850) 245-1000

(850) 521-0700

SSE Ee a TT i onisctccenaiahciendetildiatentenainbedticeinatiehesineniiandamimentaieniianentainiasatiadaniesemtemtainaibaitiatiientashctebertimce meee ato

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON. D.C. 20001

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QUESTIONS PRESENTED

1. Whether the National Pollutant Discharge Elimination

System (“NPDES”), 33 U.S.C. § 1342, component of the

Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387, author-

izes state programs to address nonpoint sources of pollution

not covered by the NPDES program.

2. Whether the Eleventh Circuit’s decision would have the

effect of overriding the agricultural exemptions of the Clean

Water Act and the NPDES program.

(i)

TABLE OF CONTENTS

te D . __ : Se

OR Oe FT ORIEN GOD cxceccecscccccccsecsensecsecescescsessees

ARGUMENT

I.

SERRE REE REE RRR ERR RRR RRR RRR RRR ER RRR RRR Hee Ee

POPP eee eee eee eee eee eee ee eee eee eee

THE CLEAN WATER ACT AUTHORIZES

STATE PROGRAMS TO ADDRESS NON-

POINT SOURCES OF POLLUTION NOT

COVERED BY THE NPDES PROGRAM.......

Framework of the CWA.......................00.000.

Conservation—National View.....................

Florida Programs Addressing Nonpoint

ee

A.

B.

Cc.

l.

2.

Florida’s TMDL Program......................

Florida’s Office of Agricultural Water

a

3. Suwannee River Partnership..................

5.

6.

Florida’s Lake Okeechobee Protection

THE ELEVENTH CIRCUIT'S DECISION

WOULD HAVE THE EFFECT OF OVER-

RIDING THE AGRICULTURAL EXEMP-

TIONS OF THE CLEAN WATER ACT AND

THE NPDES PROGRAM ...................cccccceseeeeees

(itt)

16

Page

A. Agrwuitural Exemptions...................cc0000000+: 16

B. Legisiative History of the Agricultural

RGTTIGEED cccccccsscsssszscevssnsacnsnssecssssusnsssssuevsse 18

C. Effect of Eleventh Circuit’s Decision on

the Agricultural Exemptions ...................... 20

ee 22

iv

TABLE OF CONTENTS—C ontinued

v

TABLE OF AUTHORITIES

CASES Page

Fishermen Against the Destruction of the Envir-

onment, Inc. v. Closter Farms, Inc., 300 F.3d

ee 20

Hughey v. JMS Dev. Corp., 78 F.3d 1523 (11th

SR See ievecinnicntisninsnitiseetinanitanianisiiiasteiaiiininiane 16

Lane et al. v. Florida Department of Environ-

mental Protection, Case Nos. 1D02-2043 and

1D02-2319 (Fla. Ist DCA, May 20, 2003)......... 10

Natural Resources Defense Council v. EPA, 915

Po) 6

Natural Resources Defense Council, Inc. v.

Train, 396 F. Supp. 1393, 1402 (D.D.C. 1975),

affirmed sub nom. Natural Resources Defense

Council, Inc. v. Costle, 568 F.2d 1369 (D.C.

Ge Ge Oe cnenenensnssennmmecempsnnmsnumanemmepemenanen 19

Oregon Natural Resources Council v. Untied

States Forest Service, 834 F.2d 842 (9th Cir.

EE eee eee Tee 6

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

I 6

CONSTITUTION AND STATUTES

Clean Water Act, 33 U.S.C. §§ 1251-1387

FP illic 0) Sai rcnnsnnssncsscsssesaneversvenmmamesnensnsenesesane 5, 6, 7

Co a 6

BP le 0 CD cecrernnessscenssnessnssermnscsssmmmmesen 16

ee 6,7

OU 7,9

BD AEE © Ge cc cenesssnnnenssnsenssscessnssmnmnnnaneniens 9

On 4,6

OU 4,17

Oe 6,17

Un 6

vi

TABLE OF AUTHORITIES—C ontinued

Page

ee: 17

A SS ree ces evree 9, 10

ie IE incites 19

a eens 4, 6, 17, 20

Pub. L. 92-500, § 208 (1972); 86 Stat. 816, 839-

841, codified as amended, 33 U.S.C. § 1288..... 5, 18

Pub. L. No. 92-500, § 208(b\(2)(F), 86 Stat. 816,

841 (1972), codified as amended, 33 U.S.C.

QD, ee 18

Pub. L. 92-500, § 402; 86 Stat. 816, 880-

883 (1972), modified as amended 33 U.S.C.

BD Fei nsnavecenuenenienmemnninnmenemenmnisnneneen 18

Pub. L. 95-217, § 33(b); 91 Stat. 1577 (1977),

codified as amended 33 U.S.C. § 1362(14)....... 19

Pub. L. 95-217, § 33(c); 91 Stat. 1577 (1977),

codified as amended 33 U.S.C. § 1342(I).......... 19

Pub. L. 100-4, § 503; 101 Stat. 7, 75 (1987),

codified as amended, 33 U.S.C. § 1462(14)...... 19

Farm Security and Rural Investment Act of 2002,

Pub. L. 107-171, 116 Stat. 134-5400... &

§ 2001, 116 Stat. 225-230, codified as amended,

SE 0 a ccsentcetimeenene %

§ 2301, 116 Stat. 253-258, codified as amended,

16 U.S.C. §§ 3839aa-3839aa-9 occ eeeeeeeee 8, 13

§ 2505, 116 Stat. 274, codified as amended, \6

ies 0) Ge iccnencenenrccnnemnticmesnncenenseinemnnnsen 13

FLA. STAT. ANN. (WEST)

a BE eG recetinitnnninimannen 3

§ 20.14(1), Fla. Stat. (2002) ................cccccecseseeseees 3

yx 14

§ 373.4592, Fla. Stat. (Supp. 2003) ....................... 15

§ 373.4592(4), Fla. Stat. (Supp. 2003)................... 15

§ 373.4592(6), Fla. Stat. (Supp. 2003)................. 4, 15,21

Vil

TABLE OF AUTHORITIES—Continued

Page

§ 373.4592(9), Fla. Stat. (Supp. 2003).......00..00...... 16

§ 373.4595, Fla. Stat. (2002)...............::::c0ccccceeceee 14

§ 373.4595(3\(c), Fla. Stat. (2002)... 15

Pf 8 8 4,21

§ 403.031(21), Fla. Stat. (2002) 0.000000 10

§ 403.067, Fla. Stat. (1999)... eee 10

§ 403.067(2-5), Fla. Stat. (2002)....0...000.cccccccceceeeee 10

§ 403.067(7), Fla. Stat. (2002).0000000000 cc. 10,11, 13

ff &, & Re 17

§ $70.07(13), Fla. Stat. (2002) ............0.00000 cece 3

§ 570.074, Pla. Stat. (2O02).........0.cccccecccccecececeeeceees 3,11

ee 3,11

§ 604.001(2), Fla. Stat. (2002) ..0...000.cccccccccceeeeeeee 3

§ 604.001(5), Fla. Stat. (2002) ..000000000 ee 3

REGULATIONS AND RULES

Rt Eee 18

Florida Administrative Code

Rule SE-1.023(4), Fla. Admin. Code............0........ 12

Rule SE-1.023(5), Fla. Admin. Code..................... 13

Ch. 5M-2, Fla. Admin. Code ................cccc000000000000 12

Ch. 5M-3, Fla. Admin. Code .............0.0.00ccccccccceeees 12

Ch. 62-303, Fla. Admin. Code ....5.00..0..000000cccccceeee 10

Ch. 40E-63, Fla. Admin. Code ....00....0.0..000000cccccc0 16

OTHER AUTHORITIES

29 Fla. Admin. Weekly 3328-3329 (Aug. 22,

SRR canenencecensnnsencanemnenemememsimcmnmmecsenesncurengsecseasene 12

117 Com. Rec. SEB2ZS (1971) ..........cccccccccsccseeecceees 6

ae 7

S. Rep. No. 95-217, 95th Cong., Ist Sess. 35

(1977), reprinted in 1977 U.S.C.C.A.N. 4326,

erie hance nareeratiatterenrnaaiiareitietmnaes 19

vill

TABLE OF AUTHORITIES—Continued

IN THE

Page

S. Rep. 92-414, reprinted in 1972 U.S.C.C.A.N. Supreme Court of the Gnited States

i TE ihiniieinaiiithiiiiieedaalaiinahieaninciinimncesiieiiaaiiaiaais 18

S. Rep. No. 414, 92d Cong., Ist Sess. 139, | No. 02-626

(“S. Rep. 92-414"), reprinted in 1972

OS fd AS = = eee 5, 18 SOUTH FLORIDA WATER MANAGEMENT DistTRICT,

Stewart, Pyramids of Sacrifice? Problems of Petitioner.

Federalism in Mandating State Implemen- v.

tation of National Environmental Policy, 86

' MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, et al.,

Yale L.J. 1196 (May 1977)...........csecccsercserereees 7

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR AMICI CURIAE FLORIDA FRUIT AND

VEGETABLE ASSOCATION, FLORIDA FARM

BUREAU FEDERATION, AMERICAN FAM BUREAU

FEDERATION, and CHARLES H. BRONSON, as the

FLORIDA COMMISSIONER OF AGRICULTURE

IN SUPPORT OF PETITIONER

With the written consent of the parties given and filed with

the Clerk of the Court, the American Farm Bureau Federation

(“Farm Bureau”), Florida Farm Bureau Federation (“FFBF”),

the Florida Fruit and Vegetable Association (“FFVA”), and

Charles H. Bronson, the Florida Commissioner of Agriculture

of the State of Florida (“Commissioner”) respectfully submit

- this brief as amici curiae’.

e ' Counsel for amici curiae has authored this brief in whole and no other

person or entity other than amici, its members or counsel have made a

monetary contribution to the preparation or submission of the brief.

2

INTEREST OF AMICI CURIAE

The FFVA is a non-profit, agricultural trade organization

headquartered in Orlando, Florida. Its mission is to enhance

the competitive and business environment for producing and

marketing fruits, vegetables, and other crops. The FFVA

represents and assists its membership on a broad range of

farming issues, including environmental protection, market-

ing, labor, food safety, and pest management. These services

help Florida growers set the standard for competitively

producing an abundant supply of safe and affordable, fruits,

vegetables and other crops. Its members produce much of the

winter vegetable crop for the United States.

The Farm Bureau is a not-for-profit, voluntary general

farm organization incorporated in Illinois in 1920. It was

founded to protect, promote, and represent the business,

economic, social and educational interests of American

farmers and ranchers. Farm Bureau has member organiza-

tions in all 50 states and Puerto Rico, representing more than

five million member families.

FFBF is one of the constituent members of the Farm

Bureau. It represents the interests of farmers and ranchers in

Florida. FFBF is composed of 62 county farm bureaus with

more than 143,400 member families. It is headquartered in

Gainesville, Florida.

American farmers afd ranchers represented by the FFVA,

FFBF, and the Farm Bureau own or lease significant amounts

of property on which they depend for their livelihoods and

upon which Americans rely for food and fiber and other basic

necessities. Farmers and ranchers are increasingly becoming

subject to restrictive regulations at the local, state and

national levels that impair their ability to farm, and in some

instances, eliminate that ability altogether.

3

The Commissioner supervises all matters pertaining to

agriculture in the State of Florida, pursuant to Article IV,

Section 4(f) of the Florida Constitution, except as otherwise

provided by law. The Commissioner is also the head of the

Florida Department of Agriculture and Consumer Services

(“DACS”) under Section 20.14(1), Florida Statutes (2002),

and is statutorily charged with the duty to “protect the

agricultural and horticultural interests of the state” under

Section 570.07(13), Florida Statutes (2002).

The Florida Legislature has declared the production of

agricultural commodities in this state to be a “large and basic

industry that is important to the health and welfare of the

people and to the economy of the state.” § 604.001(2), Fla.

Stat. (2002). The Legislature has further declared that it is

important “that additional problems are not created for

growers and ranchers engaged in the Florida agricultural

industry by laws and regulations that cause, or tend to cause,

agricultural production to become inefficient or unprofitable.”

§ 604.001(5), Fla. Stat. (2002). Finally, under Sections

570.074-.075, Florida Statutes (2002), the Commissioner has

created and oversees an Office of Agricultural Water Policy

(“OAWP”) for the purpose of engaging in any matter

“relating to water policy affecting agriculture, application of

such policies, and coordination of such matters with state and

federal agencies.”

The Commissioner’s participation in this matter flows from

his constitutional and statutory duty to protect Florida

agricultural food products and the interests of all Florida

citizens involved in or affected by issues impacting the

continued viability of agricultural operations in the state.

American farm products remain competitive in the world

market due in part to the regulatory scheme of one

environmental law, the Clean Water Act (“CWA”), 33 U.S.C.

§§ 1251-1387. The CWA does this by providing agricultural

exemptions for the discharge of waters used for the pro-

4

duction of crops. 33 U.S.C. §§ 1342(1) and 1362(14). These

exemptions are part of the National Pollutant Discharge

Elimination System (“NPDES”) component of the CWA, a

permit program to limit the discharge of industrial wastes into

the nation’s waters. 33 U.S.C. § 1342.

If the Eleventh Circuit’s decision stands, the South Florida

Water Management District (“SFWMD”) will have to

increase its budget to pay for the expensive NPDES

permitting process for S-9, the pump station that moves water

from one side of a levee to the other in the same watershed.

SFWMD will more than likely obtain the funding to obtain

and implement this NPDES permit by increasing agriculture

_ privilege taxes, ad valorem taxes on property owners in the

district, fees, and assessments. See, e.g., § 373.4592(6), Fla.

Stat. (Supp. 2003) (agricultural privilege tax) and § 373.503,

Fla. Stat. (ad valorem tax). The costs may be further

magnified by the SFWMD having to take steps to permit

many other structures or facilities similarly situated to the

S-9 facility.

These likely additional costs to farmers and ranchers would

significantly and adversely impact the ability of farmers and

ranchers in Florida to competitively market their crops in

today’s international markets. It is possible the technologies

required by the NPDES permit for S-9 will compel the

creation of stormwater treatment areas for it and other similar

types of facilities. If that is the case, SFWMD may use its

condemnation power to take the land of farmers and ranchers,

thereby further adversely impacting them.

The Commissioner and the farmer and rancher members in

the FFVA and FFBF have a direct economic interest in the

outcome of this case. The interest is to ensure the agricultural

exemptions provided by the Clean Water Act from the

NPDES program continue to be effectively implemented as in

the past. If the Eleventh Circuit’s decision is not reversed,

the effective impact of the Clean Water Act agricultural

5

exemptions could be eroded and thwarted through increased

taxes, fees and/or assessments imposed by SFWMD to pay

for NPDES permits and technologies for the S-9 pump station

or similar facilities. ,

SFWMD’s hundreds of other pumps and flow diversion

facilities like them that move water within the same water-

shed will likely also require NPDES permits, all at a

substantial cost the SFWMD will pass on to farmers,

ranchers, and others. In addition, regulatory agencies that

manage the transfer of water within watersheds throughout

the country may also have to obtain NPDES permits if the

Eleventh Circuit’s decision is affirmed. Accordingly, the

impact of the Eleventh Circuit’s decision could adversely

impact the cost of producing crops throughout Florida and

nationally. The predictable result will be a diminished ability

of American farmers and ranchers to market their crops in the

international market in which they can now compete.

~ ARGUMENT

I. THE CLEAN WATER ACT AUTHORIZES

STATE PROGRAMS TO ADDRESS NONPOINT

SOURCES OF POLLUTION NOT COVERED

BY THE NPDES PROGRAM.

A. Framework of the CWA

The NPDES program did not cover nonpoint sources when

the CWA amendments were adopted in 1972. _ Instead,

nonpoint sources were left to the states to address through

planning processes. Pub. L. 92-500, § 208 (1972); 86 Stat.

816, 839-841, codified as amended, 33 U.S.C. § 1288;

S. Rep. No. 414, 92d Cong., Ist Sess. 139, (“S. Rep. 92-

414”), reprinted in 1972 U.S.C.C.A.N. 3668. As explained

below, that is still true today.

Since its enactment, the CWA has divided water pollution

sources into two categories, point and nonpoint. Point

6

sources are subject to the NPDES program, a federal permit

scheme which is administered by the United States Envir-

onmental Protection Agency (“EPA”) or by a state which has

received EPA’s authorization. See 33 U.S.C. §§ 1311 and

1342(a and b). The term “point source” is defined in 33

U.S.C. § 1362(14). Nonpoint sources are not subject to a

CWA permit system. Natural Resources Defense Council v.

EPA, 915 F.2d 1314,1316 (9th Cir. 1990).

Indeed, nonpoint sources are addressed under a separate

scheme that recognizes their important differences. See 33

U.S.C. §§ 1288 and 1329. By the early 1970s Congress had-

realized that “|t}here is no effective way as yet, other than

land use control, by which you can intercept that runoff and

control it in the way you do a point source.” 117 Cong. Rec.

38825 (1971) (Sen. Muskie). Since land use controls have

historically been the concern of state and local government,

Congress did not subject nonpoint sources to any federal

regulation. As one court has explained, the 1972 Federal

Water Pollution Control Act Amendments to the CWA:

drew a distinct line between point and nonpoint pollution

sources. Point sources are subject to direct federal

regulation and enforcement under the Act. 33 U.S.C.

§ 1342. Nonpoint sources, because of their very nature,

are not regulated under the NPDES. Instead, Congress

addressed nonpoint sources of pollution in a separate

portion of the Act which encourages States to develop

area wide waste treatment management plans. See 33

U.S.C. § 1288 [footnotes omitted] . . .

Oregon Natural Resources Council v. Untied States Forest

Service, 834 F.2d 842, 849 (9th Cir. 1987); see also United

States v. Earth Sciences, Inc., 599 F.2d 368, 371-73 (10th Cir.

1979) (nonpoint sources are not subject to a “regulatory

system”). Congress revisited the matter of nonpoint sources

regulation in 1977, and decided to “continu[e] the section

208, 33 U.S.C. § 1288 experiment . . . judging that these

= — ee eee ee

5

[nonpoint source] matters were appropriately left to the level

of government closest to the sources of the problem.” 123

Cong. Rec. 26697 (1977).

This minimal federal involvement with nonpoint sources

under Section 208 of the CWA, 33 U.S.C. §1288, was

broadened somewhat in 1987 with the addition of Section

319, 33 U.S.C. § 1329, Nonpoint Source Management

Programs. Section 319 continues to recognize that nonpoint

source control is first and foremost a matter of land use

control, and continues to respect state primacy in that field.

Under Section 319, states are directed to prepare “manage-

ment programs” that identify “best management practices”

for various categories of nonpoint sources. 33 U.S. C.

§ 1329(b). Each management program must identify “best

management practices which will be undertaken to reduce

pollutant loading” and how the program will “achieve

implementation” of them. 33 U.S.C. § 1329(b)(2)(A and B).

The CWA creates a framework that accommodates the

interests Congress had to balance when it addressed point and

nonpoint sources and their effects on water quality. It brings

the full regulatory authority of the federal government to bear

on point sources; it leaves nonpoint sources to state and local

governments. Control of nonpoint sources inevitably impli-

cates land use controls and accordingly Congress deferred to

state and local primacy in that area. Congress struck a

balance on this issue, as it does routinely on legislation of all

kinds. That balance divides responsibility for point and

nonpoint sources between EPA and the states, respectively.’

* Prevailing views of federalism evolve over time, but the problems of

environmental regulation within a federal framework, as the sometimes

complex compromises that emerge, are nothing new. See Richard B.

Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating

State Implementation of National Environmental Policy, 86 Yale L.J.

1196 (May 1977).

8

Nonpoint sources must do their part, but through state-

driven programs.

B. Conservation—National View

The Farm Security and Rural Investment Act of 2002, Pub.

L. 107-171, 116 Stat. 134-540 (“Farm Act”), supported large

funding increases in conservation programs to assist farms of

all sizes improve water quality. The Farm Act increased

funding for almost every existing agri-environmental pro-

gram. Overall spending for conservation and environmental

programs will rise by 80 percent to a projected 10-year total

of $38.6 billion. This funding responds to a broad range of

natural resource challenges faced by farmers and ranchers and

will focus on the soil, water and air impacts of farming.

The Environmental Quality Incentives Program (“EQIP”)

of the Farm Act, 116 Stat. 253-258, codified as amended, \6

U.S.C. §§ 3839aa-3839aa-9, provides technical and financial

assistance to landowners to improve soil, water, air, wetlands

and wildlife management. Started in the 1996 at $200 million

annually, the increased demand for the program by farmers

resulted in the expansion of total funding to $5.8 billion

through 2007.

A new approach authorized in the Farm Act is to provide

technical and financial assistance for the conservation and

protection of natural resources on private working lands. The

Conservation Security Program of the Farm Act offers

assistance to all producers who practice good stewardship on

their farms and provides incentives to help cover the costs for

those who want to add additional conservation practices. 116

Stat. 225-230, codified as amended, 16 U.S.C. § 3838a.

These and many other United State Department of Agricul-

ture natural resource conservation programs follow the

voluntary, incentive-based model that farmers have supported

starting with the soil conservation programs of the 1930's.

—

~ es

9

Approaches that include the agricultural community in

their design and execution, that are based on local decision-

making, and that produce results while complementing the

goals of the farm business, have proven useful in achieving

natural resource protection for agriculture. Producing food

and fiber for the nation and the world, improving envir-

onmental practices on working lands, and maintaining a

sound economic base for current and future farm businesses

are the multiple goals that farmers and the public are striving

to achieve.

C. Florida Programs Addressing Nonpoint

Sources of Pollution

As set forth above, the CWA authorizes states to develop

and implement plans to address nonpoint sources (e.g. 33

U.S.C. §1329(b\(2)(B)—states develop best management

practices and measures to reduce pollutant loading; and 33

U.S.C. $1329(h)(2)—federal grants are provided for state

programs addressing nonpoint-source pollution) and in some

instances requires states to implement controls on these

sources (¢.g., 33 U.S.C. §1342(d)—states must limit the total

maximum daily loads of pollutants discharged into impaired

water bodies from nonpoint and point sources).

Pursuant to the CWA, the Florida Legislature has adopted

several programs to address the introduction of pollution into

navigable waters from nonpoint sources. In addition, regional

cooperative programs have similarly implemented procedures

for this purpose. Several of these programs are described

below. The Commissioner, agricultural interests, and others

have worked cooperatively to implement these programs

through the establishment of best management practices

(“BMPs”). The goal of these cooperative efforts ts to limit

the flow of pollutants into navigable waters, whether from

point or nonpoint sources.

10

|. Florida's TMDL Program

The Florida Watershed Restoration Act, Section 403.067,

Florida Statutes, was adopted by the Florida Legislature in

1999. Implementation of this law is expected to result in

cleaner water though collaborative restoration efforts, better

protection of water bodies, and better working relationships

among public and private sectors to reduce pollution.

Substantial funding is being provided by the Legislature to

implement the act. To accomplish these purposes, the law

requires the establishment of the total maximum daily load

(“TMDL”) of pollutants that can flow into impaired surface

waters or segments. A TMDL is a calculation of the maxi-

mum amount of a pollutant that a water body can receive and

still meet water quality standards, and an allocation of that

amount to the pollutant’s sources. See § 403.031(21), Fla.

Stat. (2002). This program is mandated by the NPDES pro-

gram of the CWA. 33 U.S.C. § 1342(d) (“Section 303(d)”).

The Florida Department of Environmental Protection

(“FDEP”) is the lead agency to implement the TMDL law. In

that capacity, it adopted comprehensive impaired water rules

in 2001. Ch. 62-303, Fla. Admin. Code. These rules became

effective on June 10, 2002, when they were upheld in a 468-

page final order; the order was affirmed on appeal in 2003.

Lane et al. v. Florida Department of Environmental Protec-

tion, Case Nos. 1D02-2043 and 1D02-2319 (Fla. Ist DCA,

May 20, 2003). FDEP had previously adopted a list of

impaired waters (“Section 303(d) list”), as required by the

CWA; EPA Region 4 approved this list in 1998. This list will

be updated using the assessment standards in the recent

TMDL law and implementing rules. §403.067(2-5), Fla. Stat.

The Florida TMDL program also requires FDEP to calcu-

late TMDLs, allocate TMDLs, and verify the effectiveness of

proposed BMPs to reduce pollution in impaired waters or

segments. The program specifically addresses agriculture-

related water quality problems in Section 403.067(7)(d),

Florida Statutes (2002). This provision allows voluntary,

incentive-based agriculture-related programs which reward

implementation of BMPs. It authorizes the Florida Depart-

ment of Agriculture and Consumer Services (“DACS”) to

develop alternative processes (other than having a TMDL

developed) and regulatory approaches to achieve water

quality improvement through the reduction of agricultural-

related pollutants. Section 403.067(7)(d) has enabled the

Commissioner and many local agencies and regulated inter-

ests (including FFVA and the FFBF) to work cooperatively

together to develop agriculture-related BMPs and programs.

If farmers and ranchers implement BMPs verified by FDEP,

they receive “a presumption of compliance with state water

quality standards”. § 403.067(7)(d)(1), Fla. Stat. (2002).

One of the prioritized impaired water bodies on FDEP’s

303(d) list is Lake Okeechobee. The Florida Legislature

adopted a special law to address the reduction of po!lutants

flowing into this water body (see Section C(4), below).

2. Florida's Office of Agricultural Water Policy

The Office of Agricultural Water Policy ("OAWP?”) is part

of the Florida Department of Agriculture and Consumer

Services (“DACS”). It was established in 1995 by the Flor-

ida Legislature to facilitate and improve communications

between federal, state, local agencies and the agricultural

industry on water quantity and quality issues. See

§§ 570.074-.075, Fla. Stat. (2002). OAWP is actively in-

volved in the development of BMPs on a site-specific,

regional and watershed basis. OAWP works cooperatively

with agricultural producers and industry groups, FDEP, the

university system, the water management districts, and other

interested parties to develop and implement BMP programs

that are economically and technically feasible. OAWP has a

staff of 37 employees, including six technical field teams and

18 professionals. This staff has expertise in disciplines

including soil and water conservation, resource management,

12

environmental regulation, biology, ecology. engineering and

GIS. Following are some examples of BMPs implemented

through OAWP programs.

OAWP facilitated the adoption of BMPs for the Indian

River citrus groves in seven counties, including Okeechobee

County. Ch. 5M-2, Fla. Admin. Code. Rule 5M-2.002

incorporates by reference the document, titled Water Quality/

Quantity BMPs for Indian River Area Citrus Groves (May

2000), which contains the BMPs. Indian River growers have

voluntarily enrolled 179,843 acres in this program, covering

82% of potential acreage. OAWP has similarly coordinated

the development of nitrogen BMP rules for Florida Ridge

Citrus (covering ten counties) and Leatherleaf Fern growers.

Rule SE-1.023(4)(a and b), Fla. Admin. Code.

_ OAWP has also facilitated the development of BMP

manuals for silviculture, cow/calf, blended fertilizer plants,

aquaculture, and agrichemical equipment. The BMP rule for

citrus, cow/calf, dairies and other agriculture in the Lake

Okeechobee priority basins has been noticed for adoption.

Ch. 5M-3, Fla. Admin. Code; see 29 Fla. Admin. Weekly

3328-3329 (Aug. 22, 2003). Even before the adoption of the

TMDL law, OAWP assisted in the development of BMPs

along the Suwannee River (see Section C(3) below).

3. Suwannee River Partnership

The Suwannee River Partnership (“Partnership”) is a

coalition of 24 state, federal and regional agencies, local

governments, and private industry representatives formed in

1999 to work together to reduce nitrate levels in the surface

waters and ground water within the watershed. Partners

include the DACS, FFBF, FDEP, Florida Department of

Health, EPA, United States Department of Agriculture,

University of Florida Institute of Food and Agricultural

Sciences, Extension and Research, Florida Agriculture and

Mechanical University, College of Engineering Sciences,

13

Technology, and Agriculture, Florida Cattlemen’s Associa-

tion, Florida Forestry Association, Florida Septic Tank

Association, Gold Kist, Inc., and Sunshine State Milk

Producers. In 2003, the Partnership expanded to include the

Santa Fe River Basin.

The Partnership determines the sources of nutrient loads to

these river basins and then develops voluntary -incentive-

based programs to minimize nutrient loading. Through these

voluntary efforts, nitrate levels have been substantially

reduced in the Middle Suwannee and Santa Fe River basins.

Initially, technical committees developed specific plans to

reduce nutrient loading to the water resources through the

management of fertilizers, animal wastes and human waste,

monitoring, and education and outreach. The group focused

on finding the most economical and technologically feasible

management techniques (BMPs) available to help farmers

and other land users satisfy regulatory requirements for

protecting public health and the environment. In its third year

(2002), the Partnership developed “reasonable assurance”

documentation to demonstrate to the satisfaction of FDEP and

EPA that its watershed management programs address water

quality concerns in the Suwannee River basin. Farmers who

use the BMPs adopted by the Partnership can receive a

presumption of compliance with Florida’s TMDL law.

§403.067(7)(d)(1), Fla. Stat. (2002). Some of the BMPs

have been adopted as rules. See Rule SE-1.023(5)(b), Fla.

Admin. Code.

In 2002, over 1000 growers and producers attended one or

more of the many meetings and special events hosted by the

Partnership. The Natural Resources Conservation Service

provides technical assistance and incentives for farmers to

implement effective BMPs through the Small Watershed

Program and the Environmental Quality Incentive-Program,

both programs in the Farm Act of 2002. 116 Stat. 274,

codified as amended, 16 U.S.C. § 1012(h); and 116 Stat. 253-

14

258, codified as amended, 16 U.S.C. §§ 3839aa-3839aa-9.

These programs have provided $17 million in cost-share

funding to implement water quality oriented BMPs. The

Partnership researches the effectiveness of BMPs through its

BMP Effectiveness 319 Demonstration Project at three

separate commercial agricultural operations.

~ 4. Florida's Lake Okeechobee Protection

Program

In 2000, the Florida Legislature enacted the Lake Okee-

chobee Protection Program. § 373.4595, Fla. Stat. (2002).

The program’s purpose is the protection and restoration of

Lake Okeechobee and the protection of public water

resources in the Lake Okeechobee watershed. By this

enactment, the state recognized the prioritized status of Lake

Okeechobee on the Section 303(d) list. The program’s

coordinating agencies are DACS, SFWMD, and FDEP. The

United States Army Corps of Engineer’s Central and South-

ern Florida Flood Control Project manages this responsibility,

under the local sponsorship of SFWMD. § 373.1501, Fla.

Stat. (2002).

Under this program, an integrated watershed and Lake

Okeechobee management strategy is being developed.

Professionals believe the use of BMPs as part of a voluntary,

non-regulatory process, should effectively control phosphorus

when implemented at the parcel-scale level. At this level,

individual landowners will reduce the amount of phosphorus

migrating off their parcels of land. OAWP is also working

with other agencies and agricultural interests to develop a

voluntary program for other agricultural activities including

cow/calf operations, vegetables, and citrus, modeled on the

success of the citrus BMP efforts in the Indian River Lagoon

watershed (see Section C(2), above).

15

The Lake Okeechobee Watershed Phosphorus Control

Program, a component of the program, is described in Section

373.4595(3)\(c), Florida Statutes (2002) as:

a multifaceted approach to reducing phosphorus loads by

improving management of phosphorus sources within

the Lake Okeechobee watershed through continued

implementation of existing regulations and best man-

agement practices, development and implementation of

improved best management practices, improvement and

restoration of the hydrologic function of natural and

management systems, and utilization of alternative

technologies for nutrient reduction . . .

The Commissioner and agricultural interests work coop-

eratively to develop rules which identify BMPs and best

available technologies for nonpoint agricultural sources in the

Lake Okeechobee watershed. § 373.4595(3)(c), Fla. Stat.

(2002) The program provides that DACS in consultation

with other agencies “shall institute a reevaluation of the best

management practices and make appropriate changes” when

“water quality problems are detected for agricultural nonpoint

sources despite the appropriate implementation of adopted

best management practices.” § 373.4595(3)(c) 1c), Fla.

Stat. (2002).

5. Florida's Everglades Forever Act

The 1994 Everglades Forever Act (“EFA”) has been

approved by EPA as a part of Florida water quality standards.

§ 373.4592, Fla. Stat. (Supp. 2003). In the Everglades

Agricultural Area (“EAA”), the EFA requires the imple-

mentation of BMPs. § 373.4592(4)(f), Fla. Stat. (Supp.

2003). The Everglades agricultural privilege tax imposed on

Everglades agriculture provides incentive credits against this

tax to encourage farmers and ranchers to use BMPs to reduce

phosphorus loads. § 373.4592(6)(c)(2), Fla. Stat. (Supp.

2003). Credits can be earned if they reduce total phosphorus

runoff from their land by at least 25%. §373.4592(6nc)(3),

16

Fla. Stat. (Supp. 2003); see also Ch. 40EF-63, Parts Il and IV

(Everglades Program—BMP Research, Testing and Imple-

mentation and C-139 Basin), Fla. Admin. Code. Recently,

SFWMD announced a 35% phosphorus reduction from

the water exiting the EAA south of Lake Okeechobee from

C-139 basin.

There are many components in the EFA’s complex system

managing the water in the Lake Okeechobee watershed, one

of which is the S-9 pump. S-9 operates in compliance with a

permit issued by FDEP under the EFA. § 373.4592(9)(k and

1), Fla. Stat. (Supp. 2003).

6. Summary

In view of the above, Florida is implementing varied and

complex mechanisms (e.g. TMDLs and BMPs) to protect and

restore Florida’s water bodies. The Lake Okeechobee and

Everglades watershed is the beneficiary of many of these

cooperative programs designed to address nonpoint sources

of pollution. Accordingly, there is no need, or authority, to

ignore state primacy as clearly provided in the CWA. Yet

that is the effect of the Eleventh Circuit's decision.

il. THE ELEVENTH CIRCUIT’S DECISION

WOULD HAVE THE EFFECT OF OVER-

RIDING THE AGRICULTURAL EXEMPTIONS

PROVIDED BY THE CLEAN WATER ACT AND

THE NPDES PROGRAM.

A. Agricultural Exemptions

The CWA prohibits the discharge of pollutants into the

navigable waters of the United States unless the discharge is

allowed by the NPDES component of the CWA. 33 U.S.C.

§ 131 1(a); see Hughey v. JMS Dev. Corp., 78 F.3d 1523,

1524-1525 (11th Cir. 1996). Permits for discharges into the

nation’s waters are issued by EPA or by delegated state

17

permitting programs. 33 U.S.C. §§ 1342(a) & 1342(c). EPA

authorized FDEP to administer the NPDES program in 1995.

§ 403.0885, Fla. Stat. (2002).

The NPDES program does not require permits for the

introduction of pollutants into the waters of the United States

that are the result of exempt agricultural activities. The CWA

expressly provides exemptions for these agricultural dis-

charges. 33 U.S.C. §§ 1342(1) and 1362(14). The FFVA,

FFBF, Farm Bureau, and Commissioner seek to prevent a

fundamental change in the implementation of these agricul-

tural exemptions which the Eleventh Circuit’s expansive

decision appears to authorize contrary to the CWA.

The NPDES program limits the flow of pollutants into the

nation’s waters by regulating discharges from “point

sources.” Certain agricultural discharges are excluded by

definition from regulation by the NPDES program because

they are not “point sources”. A “point source” regulated by

the NPDES program is defined in 33 U.S.C. §1362(14) as

follows (emphasis added):

The term “point source” means any discernible,

confined and discrete conveyance, including but not

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

discrete fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other floating

craft, from which pollutants are or may be discharged.

This term does not include agricultural stormwater

discharges and return flows from irrigated agriculture.

The NPDES program expressly prohibits any permit require-

ments for these agricultural discharges, stating in 33 U.S.C.

§ 1342(1):

The Administrator shall not require a permit under

this section for discharges composed entirely of return

flows from irrigated agriculture, nor shall the Admin-

istrator directly or indirectly require any State to require

such a permit.

18

The rules implementing the agricultural exemptions ex-

plain what is and is not a “point source” under the statutory

definition of the NPDES program. The rules provide, for

example, that the following discharges from agriculture do

not require NPDES permits:

Any introduction of pollutants from non point-source

agricultural and silvicultural activities, including storm

water runoff from orchards, cultivated crops, pastures,

range lands, and forest lands. . . .

40 C.F.R. § 122.3(e)

B. Legislative History of the Agricultural

Exemptions

The CWA originated in the 1972 amendments to the

Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 ef

seq. The CWA _ focused on regulating “point source”

discharges which flow into the nation’s navigable waters.

The 1972 amendments required effluent limitations to be

placed upon “point source” discharges through a federally

mandated permit system, the NPDES program. Pub. L. 92-

500, § 402; 86 Stat. 816, 880-883 (1972), modified as

amended 33 U.S.C. § 1342.

The NPDES program did not cover nonpoint sources when

the CWA was adopted in 1972. Instead, these sources,

particularly agriculture, were left primarily to the states to

address through a planning process described in the program.

Pub. L. 92-500, § 208 (1972); 86 Stat. 816, 839-841, codified

as amended, 33 U.S.C. § 1288; S. Rep. No. 414, 92d Cong.,

Ist Sess. 139, (“S. Rep. 92-414”), reprinted in 1972

U.S.C.C.A.N. 3668. As a consequence, when Congress

adopted the NPDES program, it did not require a permit for

agricultural runoff. Pub. L. No. 92-500, § 208(b)(2)(F), 86

Stat. 816, 841 (1972), codified as amended, 33 U.S.C.

§ 1288(b\(2)F); S. Rep. 92-414, reprinted in 1972

U.S.C.C.A.N. at 3759-3760. As Senator Dole stated: “This

19

bill would amend the Federal Water Pollution Control Act to

place responsibility on the states for instituting and expanding

the control of water pollution related to agriculture.” S. Rep.

92-414 at 3759 (supplemental views of Sen. Dole).

In 1977, the exemption for “return flows from irrigated

agriculture” was expressly added as an exclusion from the

definition of “point source”. Pub. L. 95-217, § 33(b); 91 Stat.

1577 (1977), codified as amended 33 U.S.C. § 1362(14).

Also, the provision prohibiting NPDES permits for agri-

cultural discharges was added. Pub. L. 95-217, § 33(c); 91

Stat. 1577 (1977), codified as amended 33 U.S.C. § 1342(I).

The express exclusion from the definition of “point source”

overrode a 1975 federal district court opinion holding the

1972 amendments to the Federal Water Pollution Control Act

did not exclude point sources from agriculture from NPDES

permitting. Natural Resources Defense Council, Inc. v.

Train, 396 F. Supp. 1393, 1402 (D.D.C. 1975), affirmed sub

nom. Natural Resources Dejense Council, Inc. v. Costle, 568

F.2d 1369, 1382 (D.C. Cir. 1977). The legislative history

reveals Congressional intent that all sources of agricultural

runoff, “regardless of the manner in which the flow was

applied to the agricultural lands, and regardless of the discrete

naiure of the entry point, are more appropriately treated under

the requirements of section 208(b)(2)(F).” S. Rep. No. 95-

217, 95th Cong., Ist Sess. 35 (1977), reprinted in 1977

U.S.C.C.A.N. 4326, 4360.

The exemption for “agricultural stormwater discharges”

from the definition of “point source” was added by the Water

Quality Act of 1987. Pub. L. No. 100-4, § 503; 101 Stat. 7,

75 (1987), codified as amended, 33 U.S.C. § 1462(14). By

this exemption, Congress confirmed its intent that agriculture

is not covered as industrial or municipal pollution under 33

U.S.C. § 1342(p).

A recent Eleventh Circuit case interpreted and applied

the agricultural exemptions from the NPDES program.

20

Fishermen Against the Destruction of the Environment, Inc.

v. Closter Farms, Inc., 300 F.3d 1294 (11th Cir. 2002). In

that case, Closter Farms irrigated sugar cane by irrigation

canals. a process called flood irrigation. The canal water

originates in Lake Okeechobee. It is forced from the canals -

“into the sugarcane fields by raising the water levels in the

canals.” /d. at 1297. The water is then discharged back into

the lake. The grower also pumped its stormwater into Lake

Okeechobee, rather than allowing it to follow its natural flow.

The Eleventh Circuit held these discharges to the lake were

covered by the agricultural exemptions from NPDES program

regulation. As to the diversion of stormwater runoff to the

lake, the court held: “Nothing in the language of the statute

indicates that stormwater can only be discharged where it

naturally would flow. See 33 U.S.C. § 1362(14).” /d. at

1297. The court also held that the canals used to irrigate the

sugar cane fields through flood irrigation constituted an

exempt activity; they were a “return flow from irrigation

agriculture,” and accordingly expressly exempt from the

definition of “point sources” regulated by the NPDES

program. 33 U.S.C. §1362(14).

C. Effect of Eleventh Circuit’s Decision on the

Agricultural Exemptions

If the Eleventh Circuit’s decision is allowed to stand,

SFWMD will have to treat the water pumped at S-9 in order

to remove some of the pollutants in it, none of which have

been added by SFWMD. This water may contain pollutants

from agricultural discharges exempt by definition from the

NPDES program’s definition of “point source.”

The treatment of water at S-9 will be expensive. Just the

preparation of the NPDES application will be costly, re-

quiring detailed data and modeling prepared by experts. In

21

~

addition, SFWMD will have to construct and implement

treatment and monitoring technologies required by the result-

ing NPDES permit, assuming there are such technologies.

SFWMD will bear the cost of the NPDES permitting

process, as well as cost of the installation and monitoring

technologies to treat the water at the S-9 pump station. The

regulatory agency will have to pay for these substantial costs

by increasing one or more of its funding sources. These

sources include ad valorem taxes on properties within the

SFWMD’s jurisdiction, agricultural privilege taxes, permit

fees, and assessments. See, e.g., § 373.4592(6), Fla. Stat.

(Supp. 2003) (agricultural privilege tax) and §-373.503, Fla.

Stat. (2002) (ad valorem tax). Farmers aad ranchers who

own farms, groves and ranches in the jurisdiction of SFWMD

may therefore have to pay for the removal of pollutants

required by an NPDES permit for S-9, even though agri-

cultural discharges to the waters pumped by S-9 are exempt

from the NPDES permitting program. Consequently, the

benefits of the agricultural exemptions may be effectively

overridden by the Eleventh Circuit’s decision.

The additional regulatory costs created by the NPDES

permit for S-9 may be passed on to farmers and ranchers, and

may increase the costs of producing agricultural products,

resulting in a diminished ability to be competitive in the

world market. As a consequence, the economic benefits

realized from the agricultural exemptions would be sub-

stantially eroded. If the Eleventh Circuit’s decision stands,

S-9 will be just one of many SFWMD pumps that may be

required to have NPDES permits. The adverse economic

impact on farmers and ranchers could be enormous. _ If the

decision is applied statewide and nationally, thousands of

pumps operated by agencies transferring water within

watersheds will similarly be required to pass on to farmers

and ranchers the expensive costs of NPDES permitting.

22

CONCLUSION

The judgment of the Eleventh Circuit Court of Appeals

should be reversed.

Respectfully submitted,

JOUN J. RADEMACHER TERRY COLE

General Counsel Counsel of Record

AMERICAN FARM BUREAU PATRICIA A. RENOVIICH

FEDERATION OERTEL, FERNANDEZ

225 Touhy Avenue & COLE. PLA.

Park Ridge. IL. 60068 301 S. Bronough Street

(847) 685-8600 Suite 500

' Tallahassee, FL. 32301

NW. COSTIG

Jou W COSTIGAN (850) 521-0700

Senior Attorney

CHARLES H. BRONSON, as the Counsel for Amici Curiae

Florida Commissioner of

Agriculture

407 S. Calhoun St., 520 Mayo Bldg.

Tallahassee, FL. 32399

(850) 245-1000

September 10, 2003