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

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13, FILED

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No. 02-626 SEP 1 0 2003

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

¢

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

V.

MICCOSUKEE TRIBE OF INDIANS, et al.,

Respondents.

e

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

BRIEF OF

IDAHO GOVERNOR DIRK KEMPTHORNE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

¢

*L. MICHAEL BOGERT

Counsel to the Governor

*Counsel of Record

OFFICE OF THE GOVERNOR

State Capitol

P.O. Box 83720

Boise, ID 83720

Telephone: (208) 334-2100

Fax: (208) 334-2175

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

This case raises important federalism issues. It

presents the Court with an opportunity to preserve the

ability of States to maintain their water quality responsi-

bilities under the express design of the federal Clean

Water Act and reaffirm their sovereign rights to manage

water as they believe is appropriate. The decision below

has far reaching impacts for water management through-

out the country, particularly in Idaho and the West. As a

matter of the fundamental construct between the state

and federal government, the decision below must be

reversed.

The question presented for review is:

Whether the pumping of water by a state water

management agency that adds nothing to the

water being pumped constitutes an “addition” of

a pollutant “from” a point source triggering the

need for a National Pollutant Discharge Elimina-

tion System permit under the Clean Water Act.

‘i

TABLE OF CONTENTS

Page

QUESTION PRESENTED.............:ccccseseeeeeeeeeeeeeeeenes i

TABLE OF AUTHORITIES ............::cceeeeeeeeeeeeeeeeneees iii

IDENTITY OF AMICUS CURIAE ............:cccceeeeeeeeees 1

INTEREST OF AMICUS CURIALE.............::cceeeeeeeeees 2

SUMMARY OF ARGUMENT.............:cccceeceeeeeeeeeeeneees 4

ARGUMENT ...ccccessoscccccoscccsccccccsscvesenssssesnnssneennannnanan 5

I. INTRODUCTION: IDAHO’S ADMINISTRA-

TION OF WATER QUALITY AND WATER

MANAGEMENT.....cccccccscoscecccccccsssscccscessescsssosseees 5

A. Idaho’s Water Quality Enforcement Au-

thority Under State Law............:ccccceeeeeeees 6

B. Idaho’s Water Management Authority Un-

Bee Beebe LAW cccececccccccccccsesecccesccsscnesennsenensens 8

II. IDAHO’S SOVEREIGNTY OVER ITS WATER

QUALITY AND WATER MANAGEMENT IS

DEGRADED BY THE DECISION BELOW...... 9

CONCLUSION .........cccrrcsccscccccscsecccnesscsseserororssssssosess 12

iii

TABLE OF AUTHORITIES

Page

CASES

Miccosukee Tribe v. S. Fla. Water Mgmt. Dist., 280

a 9

Shokal v. Dunn, 707 P.2d 441 (Idaho 1985) ...................... 11

Solid Waste Agency of N. Cook County (SWANCC)

v. U.S. Army Corps. of Eng’rs, 531 U.S. 159

EEE 3,12

CONSTITUTIONS AND STATUTES

ee 1

EE 5

a 5

ee 6

a 3

a 10

a 10

IDAHO CODE § 39-103(16) (Michie 2002) .................:ccccccceeees 7

IDAHO CODE § 39-105(e) (Michie 2002) .0.............cccccccceeeeeees 6

IDAHO CODE § 39-3601 (Michie 2002) ................:cc0c0000+ 2,6, 7

IDAHO CODE §§ 39-3601-39-3624 (Michie 2002 and

hte a cc cernccecencstsennnsnsccooscssecceseeees 6

IDAHO CODE § 39-3602(28) (Michie 2002) ...............cccceeeeees 7

IDAHO CODE §§ 39-3601-3612 (Michie 2002 and

Tce trrcercccencssctesssseeesessososcosscosse 7

IDAHO CODE § 39-3611 (Michie 20038) .00............:.c.ccccecceeeees 7

iv

TABLE OF AUTHORITIES -— Continued

Page

IDAHO CoDE § 39-3611(2) (Michie 2003) .................cccceeseeees 7

IDAHO CODE § 39-3611(5) (Michie 2003) ...............s00ssees000 7

IDAHO CODE § 39-3612 (Michie Supp. 2003).............--s--+++ 7

IDAHO CODE § 42-202B (Michie 20038)...............cccccccccseeeeeeees y

IDAHO CODE § 42-202B(3) (Michie 2003) ...............cccccceseees 8

IDAHO CODE § 42-222 (Michie 2003) ...............cccccceeeeeeees 8,11

IDAHO CODE § 42-222(1) (Michie Supp. 2003)..................++ 9

OTHER AUTHORITIES

H.B. 164, 56th Leg. Ist Sess., 2001 Idaho Sess. Laws

Se 2

H.B. 284, 57th Leg. 1st Sess., 2003 Idaho Sess. Laws

—=—ww 8,9

Resolution of the Western States Water Council

Regarding Water Transfers and National Pollut-

ant Discharge Elimination System Discharge

Permits (August 1, 2003) ............:ccssseeeseersessenneresesassnenneees 2

- ee ——<_<

1

BRIEF OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Amicus Curiae

Governor Dirk Kempthorne submits this brief in support

of Petitioner South Florida Water Management District,

having obtained the written consent of the Petitioner and

Respondents. The letters of consent have been filed with

the Clerk of this Court.’

+

IDENTITY OF AMICUS CURIAE

Amicus Curiae is Idaho’s chief executive with respon-

sibility, through the State’s executive branch agencies,

over Idaho's water quality and water management.

Dirk Kempthorne is the duly elected Governor of the

State of Idaho and a former United States Senator. As

Idaho’s Governor, he is required to see that the laws are

“faithfully executed.” IDAHO CONST. art. IV, § 5.

In 2001, Governor Kempthorne signed into law House

Bill 164, legislation which was necessitated after Idaho's

primary agency charged with protecting environmental

quality was elevated to department status. The legislation

furthered the laudable goal of advancing “the expressed

intent of congress to control pollution” by defining the

responsibilities of public agencies in “the control, and moni-

toring of water pollution, and through implementation of

* Pursuant to Supreme Court Rule 37.6, Amicus affirms that no

counsel for any party in this case authored this brief in whole or in part

and that furthermore, no person or entity has made a monetary

contribution specifically for the preparation or submission of this brief.

-_

this chapter, enhance the state’s economic well-being.” H.B.

164, 56th Leg. Ist Sess., 2001 Idaho Sess. Laws 253 (codified

as amended as IDAHO CODE § 39-3601 (Michie 2002)).

The Idaho Department of Environmental Quality

(IDEQ), a state department, is responsible for leading efforts

to preserve the quality of Idaho's air, land and water for

use and enjoyment today and in the future. The Director of

IDEQ serves at the pleasure of Governor Kempthorne on a

number of state commissions, including the Western

States Water Council,’ the Basin Environmental Im-

provement Project Commission, the Pesticide Management

Commission, and the Idaho Rural Partnership. The Idaho

Department of Water Resources (IDWR), another executive

branch agency, is responsible for water administration in the

State.

+

INTEREST OF AMICUS CURIAE

Amicus is mindful of the sensitive setting of this

particular application of the federal Clean Water Act. The

* The Western States Water Council recently resolved, inter alia:

[TJhat the transport of water through ditches, canals, tun-

nels, pipelines and other constructed water conveyances in

order to supply municipal, agricultural, industrial and other

beneficial uses, as opposed to waste disposal purposes, in

compliance with state law, should not trigger federal

NPDES permit requirements, simply because the trans-

Resolution of the Western States Water Council Regarding Water

Transfers and National Pollutant Di charge Elimination System

Discharge Permits (August 1, 2003) (See App. at 1).

Florida Everglades is a natural resource treasure, not only

to the State of Florida but also the United States. Just as

Amicus is dedicated to preserving the great natural

resources in the State of Idaho, so too does he strongly

support all efforts to protect the environmental values of

the Everglades.

However, section 101 of the Clean Water Act (CWA)

declares that “it is the policy of Congress to recognize,

preserve, and protect the primary responsibilities and

rights of states to prevent, reduce, and eliminate pollution

[and] to plan the development and use of land and water

resources.” 33 U.S.C. § 1251(b) (2003) (emphasis added).

See also Solid Waste Agency of N. Cook County (SWANCC)

v. U.S. Army Corps. of Eng’rs, 531 U.S. 159, 175 (2001)

(acknowledging “the States’ traditional and primary power

over land and water use.”)

Governor Kempthorne and Idaho's executive branch

agencies responsible for protecting water quality are also

interested in maintaining the responsibility of the States —

as recognized by Congress in the clear text of the Clean

Water Act — to regulate water quality and management

activity through the State-oriented statutory infrastruc-

ture Idaho has appropriately developed.

~ Amicus has responsibility for overseeing the State’s

regulatory infrastructure protecting water quality without

weakening Idaho's ability to balance the essential compo-

nents of water quality and water management. As a public

official who resides in the West, he can offer the Court an

informed case study on an application of the decision

below which better illuminates an unwise intrusion of

federal law into the affairs of the States.

4

The essential holding of the Eleventh Circuit below,

that the CWA is expansive enough to require a National

Pollutant Discharge Elimination System (NPDES) permit

upon the mere movement of water between state transport

systems, has undermined state authority in an area where

cooperative federalism has proven to be an optimum

method to protect the environment. Encroachment of

federal power through interpretation of an act of Congress

undermining settled expectations of the States must be

accomplished, if necessary in the first instance, with

exacting precision. In the present case, that has not

occurred.

¢

SUMMARY OF ARGUMENT

The State of Idaho has an extensive and well-

developed body of state law aimed squarely at protecting

water quality. The Idaho Department of Environmental

Quality is responsible for developing water quality standards

under an infrastructure sanctioned by the Clean Water

Act.

Similarly, the Idaho Department of Water Resources,

through newly-amended legislation, considers water

quality in its management of transfers of water between

basins. Each of these schemes is protective of the envi-

ronmental values embodied in a National Pollutant Dis-

charge Elimination System (NPDES) permitting process.

The holding of the Eleventh Circuit will disrupt the

careful balance between the appropriate role of the states

and the federal government proscribed by Congress under

the Clean Water Act. The Idaho Department of Environ-

mental Quality and Department of Water Resources must

5

now administer the remainder of its water quality infra-

structure mindful of the shift in authority back to a federal

command-and-control structure. Such interference and

disruption with appropriate State functions cannot be the

state of the law under the Clean Water Act.

¢

ARGUMENT

I. INTRODUCTION: IDAHO’S ADMINISTRATION

OF WATER QUALITY AND WATER MANAGE-

MENT

In Idaho, the use and management of water is pro-

tected within the framework of the state constitution. For

example, appropriated water in Idaho is declared subject

to regulation by the state as a public use, IDAHO CONST.

art. XV, § 1; the right to divert and appropriate unappro-

priated waters “shall never be denied,” IDAHO CONST. art.

XV, §3; and the state water resource agency has its

organic genesis in the state constitution. IDAHO CONST. art.

XV, § 7.

The Idaho Departments of Environmental Quality and

Water Resources jointly govern water quality and man-

agement through IDEQ’s development and implementa-

tion of State water quality standards and Total Maximum

Daily Load allowances (TMDLs) and IDWR’s water trans-

fer authority, each of which is further described below.

6

-

A. Idaho’s Water Quality Enforcement Author-

ity Under State Law

Idaho’s commitment to controlling water pollution is

embodied in the following legislative prose from the State’s

water quality control statute:

The legislature, recognizing that surface water is

one of the state’s most valuable natural resources,

has approved the adoption of water quality stan-

dards and authorized the director of the depart-

ment of environmental quality ... to implement

these standards.... [I]t is the purpose of this

chapter to enhance and preserve the quality and

value of the surface water resources of the state of

Idaho. ... In consequence of the benefits to the

public health, welfare, and economy, it is hereby

declared to be the policy of the state of Idaho to

protect this natural resource by monitoring and

controlling water pollution.

IDAHO CODE § 39-3601 (Michie 2002) (emphasis added).

The Idaho Legislature has provided to the Idaho

Department of Environmental Quality broad authority to

develop a system to safeguard the quality of the waters of

the state, including authority to adopt and enforce rules

relating to the discharge of effluent into the waters of the

state, and to adopt and enforce state water quality stan-

dards that designate uses and provide criteria to protect

those uses. See generally IDAHO CODE § 39-105(e) (Michie

2002); §§ 39-3601-39-3624 (Michie 2002 and Supp. 2003).

In providing this authority to the IDEQ, the state

legislature very broadly defined “waters or water body” to

mean “all accumulations of surface water, natural and

artificial, public and private, or parts thereof which are

wholly or partially within, flow through or border upon

7

this state.” IDAHO CODE § 39-3602(28) (Michie 2002). See

also IDAHO CODE § 39-103(16) (Michie 2002) (defining

“water” almost identically).

While providing IDEQ authority to regulate water

quality with respect to a very broad definition of waters of

the state, the Idaho Legislature also intended “that the

state of Idaho fully meet the goals and requirements of the

federal clean water act and that rules promulgated under

this chapter not impose requirements beyond those of the

federal clean water act.” IDAHO CoDE § 39-3601 (Michie

2002).

As authorized by Congress through the Clean Water Act,

Idaho has developed water quality standards and Total

Maximum Daily Loads (TMDL). See IDAHO CoDE §§ 39-3601-

3612 (Michie 2002 and Supp. 2003).

Under state law, “and as required by the federal Clean

Water Act,” the Idaho Department of Environmental

Quality is required to develop a total maximum daily load

to control point source and non-point sources of pollution.

IDAHO CODE § 39-3611 (Michie 2003) (emphasis added).

Inherent within this authority is the power to identify

pollutants impacting the water body; IDAHO CoDE §39-

3611(1) (Michie 2003); to inventory all point and non-point

sources of the identified pollutant, IDAHO CoDE § 39-

3611(2) (Michie 2003); and to develop pollution control

strategies for both point’sources and non-point sources for

reducing those sources of pollution, IDAHO CODE § 39-

3611(5) (Michie 2003). After the TMDL process provided

by state law is completed, the Director of IDEQ shall

“integrate such processes into the state’s water quality

management plan developed pursuant to the federal clean

water act.” IDAHO CODE § 39-3612 (Michie Supp. 2003).

8

Accordingly, Idaho’s authority to analyze, adopt, and

implement water quality standards and TMDLs - activi-

ties which complement the goals of the federal Clean

Water Act -— are vigorously pursued within the State’s

statutory construct.

B. Idaho’s Water Management Authority Un-

der State Law

Due to the scarcity of the resource, it is not uncommon

in Idaho for water users to change certain attributes of

their water uses. State law provides a transfer procedure

to change one or more of the following elements: the point

of diversion, the place of use, the period of use, and the

nature of use. IDAHO CODE § 42-222 (Michie 2003).

During the 2003 legislative session, Idaho enacted

House Bill 284, which was signed into law by Governor

Kempthorne. H.B. 284, 57th Leg. 1st Sess., 2003 Idaho

Sess. Laws 806. The legislation amended the definition of

the “local public interest” criterion used to evaluate

certain administrative decisions, including basin water

transfers, within Idaho’s statutory water management

infrastructure. The “local public interest” is “the interests

that the people in the area directly affected by a proposed

water use have in the effects of such use on the public

water resource.” IDAHO CODE § 42-202B(3) (Michie 2003).

House Bill 284 also added a new separate “economic

effects” criterion intended to apply in the event of an out-

of-basin transfer of water from one watershed or local area

to another. Under Idaho law, such movement of water may

not “adversely affect the local economy of the watershed or

local area within which the source of water for the pro-

posed use originates, in the case where the place of use is

9

outside of the watershed or local area where the source of

water originates.” IDAHO CODE § 42-202B (Michie 2003).

The Director of IDWR may consider trans-basin

transfers if it will not adversely affect the local economy of

the original source of the transfer, which is a new element

enacted as a part of House Bill 284.°

II. IDAHO’S SOVEREIGNTY OVER ITS WATER

QUALITY AND WATER MANAGEMENT IS DE-

GRADED BY THE DECISION BELOW

The essential holding of the case at bar is that the

CWA requires NPDES treatment for outside contributions

to impacted point sources. “[BJecause the pollutants would

not have entered the second body of water but for the

change in flow caused by the point source, an addition of

pollutants from a pofnt source occurs.” Miccosukee Tribe of

* That part of the statute provides in pertinent part that:

The director of the department of water resources shall ex-

amine all the evidence and available information and shall

approve the change in whole, or in part, or upon conditions,

provided no other water rights are injured thereby, the

change does not constitute an enlargement in use of the

original right, the change is consistent with the conserva-

tion of water resources within the state of Idaho and is in

the local public interest as defined in section 42-202B, Idaho

Code, the change will not adversely affect the local economy

of the watershed or local area within which the source of wa-

ter for the proposed use originates, in the case where the

place of use is outside of the watershed or local area where

the source of water originates, and the new use is a beneficial

use, which in the case of a municipal provider shall be satis-

fied if the water right is necessary to serve reasonably an-

ticipated future needs as provided in this chapter.

IDAHO CODE § 42-222(1) (Michie 2003) (emphasis added).

10

Indians v. S. Fla. Water Mgmt. Dist., 280 F.3d 1364, 1369

(11th Cir. 2002) (emphasis in original).

However Congress, through the Clean Water Act,

spoke directly to the authority of States to continue

responsibility over its water management.’ Each of the

previously described organic missions of IDEQ and IDWR

under state law, specifically, protection of water quality

through development of TMDLs and consideration of the

public interest in water transfers, is severely undermined

if the fundamental premise of such administration is now

enveloped by an artificial emphasis on preventing the

cause of pollution at its source through an NPDES context.

At present, Idaho does not maintain and administer

an approved NPDES program under the Clean Water Act.

See 33 U.S.C. § 1342(b) (2003) (providing for state program

approval by the United States Environmental Protection

Agency). But, as previously discussed, the State already

aggressively protects water quality through its TMDL

* The Clean Water Act states clearly that:

It is the policy of Congress that the authority of each State

to allocate quantities of water within its jurisdiction shall

not be superseded, abrogated or otherwise impaired by this

chapter. It is the further policy of Congress that nothing in

this chapter shall be construed to supersede or abrogate

rights to quantities of water which have been established by

any State. Federal agencies shall co-operate with State and

local agencies to develop comprehensive solutions to pre-

vent, reduce and eliminate pollution in concert with pro-

grams for managing water resources.

33 U.S.C. § 1251(g) (2003).

11

processing and “local public interest” review in administer-

ing water management.’

The dichotomy presented by the instant case is that

the delicately calculated equipoise of state-federal coopera-

tion under the Clean Water Act — as fully represented by

the State of Idaho through its state programs protecting

the same environmental values served by direct NPDES

permitting — has been destabilized by the holding below.

For example, it is now possible that the simple act of

requesting a transfer of a water right under Idaho Code

section 42-222 will involve some level of consultation with

the federal government as a process step in the State’s

undertaking to complete the transfer.

Similarly, it is now likely that the careful development

of certain TMDLs aimed at improving water quality in

impaired stream segments in Idaho — heretofore a perfectly

* The Idaho Supreme Court has spoken to the differing functions of

IDEQ and IDWR and came to the conclusion that water quality cannot

be undermined or degraded by the administration of separate statutory

schemes:

[We] add a word of caution regarding the differing functions

of [IDWR] and the [IDEQ)]. [IDWR] must oversee the water

resources of the state, insuring that those who have permits

and licenses to appropriate water use the water in accor-

dance with the conditions of the permits and licenses and

the limits of the law. It is not the primary job of [IDWR] to

protect the health and welfare of Idaho’s citizens and visi-

tors — that role is vested in the [IDEQ]. . . . Nevertheless, al-

though these agencies may have separate functions, [IDWR]

is precluded from issuing a permit for a water appropriation

project which, when completed, would violate the water

quality standards of the [IDEQ].

Shokal v. Dunn, 707 P.2d 441, 451-452 ( Idaho 1985).

12

lawful and appropriate State function focused on assessing

the tolerable impact of human activities on the environ-

ment — could now be unduly marginalized in favor of direct

action by the United States Environmental Protection

Agency.

Without the Congress “expressing a desire to readjust

the federal-state balance in this manner,” SWANCC, 531

U.S. at 174, the Idaho Department of Environmental

Quality and Idaho Department of Water Resources must

now administer the remnants of its water quality

infrastructure mindful of the shift of authority back to a

federal command-and-control structure. Such interference

and disruption with appropriate State water quality

functions cannot be the state of the law under the Clean

Water Act. ‘

CONCLUSION

For the reasons set forth above, the Court should

reverse the decision below by the Eleventh Circuit Court

of Appeals.

Respectfully submitted,

*L. MICHAEL BOGERT

Counsel to the Governor

*Counsel of Record

OFFICE OF THE GOVERNOR

State Capitol

P.O. Box 83720

Boise, ID 83720

Telephone: (208) 334-2100

Fax: (208) 334-2175

ee

App. 1

APPENDIX

RESOLUTION of the WESTERN STATES WATER

COUNCIL regarding WATER TRANSFERS

and

NATIONAL POLLUTANT DISCHARGE

ELIMINATION SYSTEM DISCHARGE PERMITS

August 1, 2003

WHEREAS, certain courts have ruled that the

movement of water containing pollutants from one distinct

body of navigable water to another can constitute a point

source discharge subject to National Pollutant Discharge

Elimination System (NPDES) permitting under the Clean

Water Act; and

WHEREAS, in June 2003, the United States Su-

preme Court granted certiorari to review Miccosukee Tribe

of Indians v. South Florida Water Management District,

280 F.3d 1364 (11th-Cir. 2002); and

WHEREAS, there are numerous interstate, inter-

basin and intrabasin water transfers westwide that are

essential to the social, economic and environmental well-

being of the region; and

WHEREAS requiring NPDES permits for water right

holders to transfer water to a location of need, in the

exercise of their water rights, though no pollutant is added

to the water and the transfer is not for waste disposal

purposes, would inappropriately encumber necessary

water transfers and the enjoyment of private property

rights; and

WHEREAS the federal government has long recog-

nized the right to use water as determined under the laws

of the various states; and

App. 2

WHEREAS Sections 101(g) and 510 of the Clean

Water Act clearly leave water decisions to the states; and

WHEREAS Congress did not intend to regulate the

mere movement of water from one basin or sub-basin to

another in the legitimate exercise of water rights as point

source discharges of pollutants.

NOW, THEREFORE, BE IT RESOLVED that the

Western States Water Council declares that the transport

of water through ditches, canals, tunnels, pipelines and

other constructed water conveyances in order to supply

municipal,- agricultural, industrial and other beneficial

uses, as opposed to waste disposal purposes, in compliance

with state law, should not trigger federal NPDES permit

requirements, simply because the transported water

contains different chemical concentrations and physical

constituents.

BE IT FURTHER RESOLVED that each Western

State shall retain its discretion to use any available

authorities to place appropriate conditions on transfers of

water for water supply purposes so as to implement its

water quality protection requirements.