# 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

~ 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
hi \"

ee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A20. Public record. Not legal advice.