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

Supreme Court. US

FILED

— SEP 1 0 2003

OFFICE OF THE CLERK

— _——-—--__

Case No. 02-626

In The

Supreme Court of the United States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

Vv.

MICCOSUKEE TRIBE OF INDIANS, ef ai.,

Respondents.

On a Writ of Certiorari

To The United States Court of Appeals For

The Eleventh Circuit

Brief of Amicus Curiae

National Association of Home Builders

In Support of the Petitioner

DUANE J. DESIDERIO VIRGINIA S. ALBRECHT*

THOMAS JON WARD ANDREW J. TURNER

NATIONAL ASSOCIATION OF HUNTON & WILLIAMS LLP

HOME BUILDERS 1900 K STREET, NW

1201 15™ STREET, NW WASHINGTON, D.C. 20006

WASHINGTON, D.C. 20005 (202) 955-1500

(202) 266-8200

*Counsel of Record

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TABLE OF CONTENTS

INTEREST OF AMICUS oo.ccccccccccscsescssesccsssesesescsssvesecesesesee l

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I. THE CLEAN WATER ACT REGULATES ONLY

THE DISCHARGE OF POLLUTANTS “INTO”

A.

B.

C.

The Clean Water Act Water Pollution Control

The Regulatory Design: Control the Dumping

of Wastes Into Navigable Waters. ........................9

MOVING WATER WITHIN THE DISTRICT’S

WATER MANAGEMENT SYSTEM DOES

NOT DISCHARGE POLLUTANTS INTO THAT

A.

C.

D.

The District is Not the Source of the

Ce eels

The District Does Not Add the Pollutants Into

The Act Does Not Regulate Water Movement. .. 14

Congress Specifically Provided for Water

ii

TABLE OF AUTHORITIES

Cases Page(s)

Catskill Mountains Chapter of Trout Unltd. v.

City of New York, 273 F.3d 481 (2d Cir. 2001)............. 15

Colautti v. Franklin, 439 U.S. 379 (1979) ......ccccccceeceeees 13

Dubois v. U. S. Dep't of Agric.,

162 F.38 1373 CE" Cle. PODER sceciccsicronevonneninusaaannine 15

Exxon Corp. v. Hunt, 475 U.S. 355 (1986)...........:cccccceee 13

International Paper Co. v. Ouellette,

S79 UB. GB1 (EGR 7) .cccccecccoseciccnovssnseensetenseieneniiaaaaa 10

Kungys v. United States, 485 U.S. 759 (1988).........c0000-. 13

Miccosukee Tribe of Indians v.

South Florida Water Mgmt Dist.,

280 F.3d 1364 (11" Cir. 2002)......ccccccccccseeeseseeee. 5,12, 13

Miccosukee Tribe of Indians v.

South Florida Water Mgmt Dist.,

1999 WL 33494862 (S.D. Fla.)..........:ccccceeseeeseeeees 12, 13

National Wildlife Fed’n v. Consumers Power,

SBS F BE FED CGR Ce. BaD cccccccusesescscieintssnseammemmatinas 15

National Wildlife Fed'n v. Gorsuch,

GB3 C26 156 COAG. Cay. BD ccceosscsniovensiasiiisamiiemmmania 15

Rake v. Wade, 508 U.S. 464 (1993) .......ccccccceceseeeseeeseeeeees 13

Rodriguez v. United States, 480 U.S. 522 (1987) ............. 5

Solid Waste Agency of Northern Cook County

v. U. §. Army Corps of Engrs,

FOE UB. ESP GIG Penccescunsescssstniinessienmedesiieiniammaiaal 10

- ——— —

ili

Statutes and Legislative History

Clean Water Act

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Refuse Act

instr ieeritericincccesncnennccnnsenoseeneceraces 8

iV

Sen. Debate on S. 2770 (1971), reprinted in 2 1972

Legis. Hist. at 1386 and 1 1972 Legis. Hist. at 177

(Senate Consideration of Conference Report on S.

TOUTED cscensavicnnimmesrnmmeminninnianiatemaiamneieniinniettiensapmeniinis 11

S. Rep. No. 92-414, at 76 (1971), reprinted in 2 Legis.

Bee, GB BE ccneneesnsensesensensssumeenssntnnnsennetinemmnninienienmnies 9

Conference Comm. Rep. No. 92-1236, at 139 (1972),

reprinted in | Legis. Hist. of the Water Pollution

Control Act Amendments of 1972, at 322 (1973)........... 9

Other

Oxford American Dictionary (Oxford University Press

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INTEREST OF AMICUS

The National Association of Home Builders

(“NAHB”) has received the parties’ written consent to file

this brief as amicus curiae in support of the Petitioners.

Letters of consent have been filed with the Clerk of the

Court.

NAHB represents over 211,000 builder and

associate members throughout the United States. Its

members include not only people and firms that construct

and supply single family homes, but also apartment,

condominium, multi-family, commercial, and industrial

builders, land developers, and remodelers. It is the voice of

the American shelter industry. Many of NAHB’s members

own and develop land. It is therefore concerned with any

judicial decision that affects the regulation of land

development, including the regulation of land development

under the Clean Water Act (“CWA”).2 CWA permits are

' Pursuant to Rule 37.6 of this Court, amicus states that its

counsel authored this brief and amicus paid for it. This brief was

not written in whole or part by counsel for a party, and no one

other than amicus made a monetary contribution to its

preparation.

? NAHB has been before the Court as an amicus curiae or as “of

counsel” representing the interests of property owners in a

number of cases. These include Agins v. City of Tiburon, 447

U.S. 255 (1980); San Diego Gas & Elec. Co. v. City of San

Diego, 450 U.S. 621 (1981); Williamson County Regional

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985);

MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340

(1986); Nollan v. California Coastal Comm'n, 483 U.S. 825

(1987); Yee v. City of Escondido, 503 U.S. 519 (1992); Lucas v.

South Carolina Coastal Council, 505 U.S. 1003 (1992); Dolan v.

City of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home

some of the most common permits that NAHB’s members

must obtain in their projects to provide housing for the

Nation’s citizens.

INTRODUCTION

This case centers on whether the movement of water

is inherently subject to regulation under the CWA.

The CWA regulates “discharges” of “pollutants”

“into” navigable waters. It prohibits such discharges unless

authorized and controlled by a permit. The Act defines

“discharge” as an “addition,” and it defines “pollutant” to

mean certain enumerated biological and chemical waste

materials, provided that they are “discharged into water.”

The Eleventh Circuit held that the South Florida Water

Management District’s movement of water between parts of

its water management system is a “discharge” of a

“pollutant” regulated by the Act. The holding outruns the

law.

Water by its nature carries a variety of chemical and

biological constituents, including sediment and plant and

animal matter from within the water, and elements that

naturally enter water after washing over land or passing

through air. Fluid and nature being what they are, the types

Chapter of Communities for a Greater Oregon, 515 U.S. 6 87

(1995); Suitum v. Tahoe Regional Planning Agency, 520 U.S.

725 (1997); City of Monterey v. Del Monte Dunes at Monterey,

Lid., 526 U.S. 687 (1999); Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001);

Palazzolo v. Rhode Island, 533 U .S. 606 (2001); Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning Agency,

535 U.S. 302 (2002); Borden Ranch P'ship v. U.S. Army Corps

of Eng 'rs, 537 U.S. 99 (2002).

and amounts of constituents within water vary from

virtually one molecule to the next, both laterally and

horizontally.

If water is stirred by a spoon, pushed by an oar, or

splashed by a hand, waterborne constituents could be said

to be “added” to a new location in the water. But such

movements of water could not be “additions” of pollutants,

and thus “discharges” within the meaning of the Act, unless

Congress intended to require a permit for virtually any

activity that disturbs the surface of water. The Act

demonstrates no such intent. Instead it evinces a clear intent

to regulate only a limited albeit significant realm of

activities: the disposal by a “source” of a “pollutant”

through a “discharge” “into” navigable water. Other water

pollution problems are addressed through other

nonregulatory programs, such as the billions of dollars in

authorized federal assistance for the construction of sewage

treatment plants and the establishment of “state water

pollution control revolving funds.”

Congress’s careful use of the terms “pollution” and

“pollutant” reinforces the distinct regulatory versus non-

regulatory realms of the Act. For instance, the Act

establishes a national goal of eliminating the “discharge of

pollutants,” and prohibits the “discharge of any pollutant”

unless authorized by a permit. 33 U.S.C. §§ 1311(a);

1251(a)(1). The term “pollutant” is inextricably tied to

discharges: a substance meets the Act’s definition of

“pollutant” only if its is “discharged into water.” /d. §

1362(6).

The statutory term “pollution,” by contrast, is much

broader, and is not tied to discharges. The term “‘pollution’

means the man-made or man-induced alteration of the

4

chemical, physical, biological or radiological integrity of

water.” /d. § 1362(19). Water that is polluted may be the

result of “pollution” (man-induced change), but its

constituents will not meet the definition of “pollutant”

unless they have been “discharged” “into” the water “from”

a “point source.” /d. 1362(6), (12), (19).

The Act provides separately for water “pollution,”

including the goal of developing “programs for the control

of nonpoint sources of pollution,” recognizing the “rights of

States to prevent, reduce and eliminate pollution,” and

providing grants to States and interstate agencies for the

administrat‘~n of “programs for the prevention, reduction,

and elimination of pollution.” Jd. §§ 1251(a)(7); 1251(b);

1256(a). In fact, Congress specifically provided that the

federal government “shall co-operate w ith S tate and | ocal

agencies to develop comprehensive solutions to prevent,

reduce and eliminate pollution in concert with programs for

managing water resources.” /d. § 1251(g).

The facts before the Court indicate that the District

is not the source of the pollution in the water that it pumps

from the canal. Nor does pumping water from one part of

the District’s water management system to another part add

pollutants to water within the system any more than

paddling a boat across a canal would add pollutants to one

part of the canal and subtract them from another. Whether

water is moved from one point in a canal to a different

point in the canal, or to a different part of the water

management system on the other side of a berm, is a

distinction made nowhere in the Act. Of course, the Act

nowhere prohibits the mere movement of water.

The Court of Appeals simply ignored the plain

statutory language limiting the regulatory program to a

‘

a ee ee ~ _——

specific subset of polluting activities — i.e. the

“discharge” ofa “pollutant” froma “point source” “into”

navigable waters — and establishing other nonregulatory

mechanisms to address nondischarge forms of “pollution.”

But Congress’s specific choices as to what falls within the

regulatory program must be honored. “[N]o legislation

pursues its purposes at all costs. Deciding what competing

values will or will not be sacrificed to the achievement of a

particular objective is the very essence of legislative

choice—and it frustrates rather than effectuates legislative

intent simplistically to assume that whatever furthers the

statute’s primary objective must be the law.” Rodriguez v.

United States, 480 U.S. 522, 525-26 (1987).

Requiring the District to obtain a permit for the

movement of water between its structures not only exceeds

the reach of the statute, but also requires the District to

engage in an empty act. The District does not itself

introduce the pollution into the water that moves through its

system, nor does it determine the nature of that pollution.

Rather, the type of pollution that is carried in the water is

determined by the actual sources of the pollution. A permit

establishing e ffluent | imitations for w ater p assing through

the pump today would not necessarily treat the pollution

that will pass through the pump tomorrow.

. Perhaps betraying its confusion, the second sentence of the

Court of Appeals’s opinion states that the Water District is

alleged to have discharged pollutants “without a national

pollution discharge elimination system (“NPDES”) permit.”

Miccosukee Tribe of indians v. South Florida Water Mgmt Dist.,

280 F.3d at 1366 (emphasis added). The Act, of course,

establishes the “national pollutant discharge elimination system”

permit program. 33 U.S.C. § 1342.

The CWA regulatory program implements a basic

concept: the nation’s navigable waters are not to be used for

the disposal of wastes unless the disposal is authorized and

controlled by a permit. Far from disposing of a waste, the

District's movement of water is central to its primary

mission of managing water flows. Congress did not set out

to regulate the millions of land owners, vessel operators,

water suppliers, and others who simply move water in the

course of their activities but discharge nothing “into” that

water. Rather, it chose to regulate discharges of pollutants

“into” the nation’s waters by the actual “sources” of those

pollutants.

The Eleventh Circuit’s holding threatens to force a

staggering range of activities that simply move or circulate

water into the prohibitions and permit requirements of the

Act. This result was neither specified nor envisioned by

Congress. The holding must be reversed.

ARGUMENT

I. THE CLEAN WATER ACT REGULATES ONLY

THE DISCHARGE OF POLLUTANTS “INTO”

WATERS.

A. The Clean Water Act Water Pollution Control

Framework.

Congress passed the Clean Water Act in 1972 in

order to control discharges of untreated industrial and

municipal wastes into the Nation’s waterways. 33 U.S.C.

§§ 1251-1387 (2000). The goals of the Clean Water Act

are ambitious (to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters”),

but Congress—as it usually does—selected with care the

means to pursue those goals. /d. § 1251(a). The Act uses a

mix federal financial assistance, incentives, and regulation

to pursue its pollution abatement goals while, at the same

time, emphasizing “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 ....” /d. §§ 1251(a)-(b).*

The regulatory permitting program is one of the

Act’s primary water pollution control components. Section

301 prohibits the “discharge” of any pollutant unless

specifically permitted under the Act. /d. § 1311(a). The

Act defines the term “discharge” as an “addition” of a

pollutant to navigable waters “from” any “point source.”

Id. § 1362(12). “Point source” is defined in terms of

conveyance: “any discernible, confined and discrete

conveyance . . . from which pollutants are or may be

discharged.” /d. § 1362(14). The Act does not define

“source,” but the dictionary defines it as “a place, person, or

thing from which something originates.” Oxford American

* It authorized billions of dollars in federal assistance for the

construction of municipal sewage treatment plants to end a

principal cause of water pollution—the discharge of raw sewage

into our Nation’s waterways. /d. § 1281. It established a

massive program of “State Revolving Funds” for state pollution

control programs, /d. § 1381, and a State-led program for

areawide waste treatment management planning. /d. § 1288,

The Act launched comprehensive programs to reduce water \

pollution in specific navigable waters of national significance. \

See /d. §§ 1258, 1268 (Great Lakes); /d. § 1266 (Hudson River);

Id. § 1267 (Chesapeake Bay); /d. § 1269 (Long Island Sound);

Id. § 1273 (Lake Pontchartrain). The Act also created pollutant-

specific programs. See, e.g., Id. § 1257 (mine water pollution);

Id. § 1265 (toxic pollutants); /d. § 1321 (oil pollution); /d. §

1345 (sewage sludge).

Dictionary, 964 (1999). Finally, the definition of pollutant

includes a variety of municipal, agricultural, chemical and

biological spoils, wastes, and residues, garbage, rock, sand,

and cellar dirt when “discharged into water.” 33 U.S.C. §

1362(6) (emphasis added).

Section 402 provides one exception to the discharge

prohibition. It authorizes EPA and delegated States to issue

permits for discharges of pollutants such as industrial and

municipal waste. 33 U.S.C. §§ 1342, 1362(6). Section 404

is another exception to the discharge prohibition. — It

authorizes the Corps of Engineers to issue permits for the

“discharge of dredged or fill material into the navigable

waters at specified disposal sites.” Id. § 1344 (emphasis

added).

B. Refuse Act Origins.

The 1899 Refuse Act makes it unlawful to

throw, discharge, or deposit, or cause, suffer, or

procure to be thrown, discharged, or deposited

from or out of any ship, barge, or other floating

craft of any kind, or from the shore, wharf,

manufacturing establishment, or mill of any

kind, any refuse matter of any kind . . . into any

navigable water of the United States.

33 U.S.C. § 407. The focus of the prohibition is on the

dumping (‘“throw, discharge or deposit”) of waste

(“refuse”) “from” a ship or shore “into” navigable water.

°33 USC. § 407 is one section of the Rivers and Harbors Act of

1899, 33 U.S.C. § 401 ef seq.

ies

The CWA prohibition on the “discharge” of a

pollutant “into” water can be traced to the 1899 Refuse Act.

In the Report of the Senate Committee on Public Works,

the committee explained that it had “extracted from the

Refuse Act the basic formula . . . so that before any material

can be added to the navigable waters authorization must

first be granted by [EPA] under Section 402.°° Indeed, the

1972 Conference Committee Report states, and the Act

provides, that permits issued or applied for under the

Refuse Act of 1899 are to be considered permits issued or

applied for under section 402 of the CWA upon enactment.’

C. The Regulatory Design: C ontrol the Dumping

of Wastes Into Navigable Waters.

Like its Refuse Act predecessor, the C WA defines

“pollutant” in terms plainly directed to wastes, byproducts

and other unwanted materials dumped into water:

The term “pollutant” means dredged spoil,

solid waste, incinerator residue, sewage,

garbage, sewage sludge, munitions, chemical

wastes, biological materials, radioactive

materials, heat, wrecked or discarded

equipment, rock, sand, cellar dirt and

industrial, municipal and agricultural waste

discharged into water.

° S. Rep. No. 92-414, at 76 (1971), reprinted in 2 Legis. Hist. at

1494.

” Conference Comm. Rep. No. 92-1236, at 139 (1972), reprinted

in | Legis. Hist. of the Water Pollution Control Act Amendments

of 1972, at 322 (1973); 33 U.S.C. § 1342(a)(4) and (5).

10

33 U.S.C. § 1362(6). The definition nowhere suggests that

discharge includes the recirculation of waterborne

constituents inherent in the movement of water.

Congress clearly targeted the industrial and

municipal entities that were dumping chemicals, sewage

and other pollutants into the nation’s waterways when it

passed the CWA in 1972. The discharge prohibition and

permitting program is specifically designed to control

pollution by regulating and requiring the treatment of

polluted effluent.’ In fact, section 301 is titled “Effluent

limitations” and, after setting out the Act’s general

discharge prohibition, requires the development of effluent

limitations for the treatment of pollutants discharged from

point sources. 33 U.S.C. § 1311(b).'° Congress’s intent to

regulate the “disposal” of pollutants into water is reinforced

by the terms of section 404, which direct that permits for

* Waterways burned in the years leading up to the CWA’s

enactment. “In 1969, the Cuyahoga River in Cleveland, Ohio,

coated with a slick of industrial waste, caught fire. Congress

responded to that dramatic event, and to others like it, by

enacting the [CWA].” Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 174-75

(2001) (Stevens, J., dissenting);

” See Int'l Paper Co. v. Ouellette, 479 U.S. 481, 489 (1987)

(“One of the primary features of the [Clean Water Act is] a

federal permit program designed to regulate the discharge of

polluting effluents.”).

'° Effluent limitations are “any restriction . . . on quantities,

rates, and concentrations o f c hemical, physical, b iological, and

other constituents which are discharged from point sources into

navigable waters.” 33 U.S.C. § 1361(11).

discharges of dredged and fill material specify the

“disposal” site."

The plain language selected by Congress in framing

the discharge prohibition, permit exceptions and definitions

of key terms within those provisions clearly demonstrates

its intent: to prohibit the discharge “into” navigable water

of waste unless the source of the waste treats and is

authorized to discharge the waste under a permit. It did not

create a new scheme whereby a permit is required for the

mere movement of water, even polluted water. Indeed, if

Congress intended such a sweeping permitting requirement,

one would expect explicit language to that effect in the

statute and its legislative history. Prohibiting or requiring a

permit for the mere movement of water and accompanying

incidental changes in waterborne constituents goes far

beyond the language or purpose of the Act.

1] ‘ , ““ ® . 2 ” °

Congress's use of the term “specified disposal sites” is

consistent with the common dredging practice of excavating

material from one place and dumping it info another area—viz.,

the “specified disposal site.” See Sen. Debate on S. 2770

(1971), reprinted in 2 1972 Legis. Hist. at 1386-90 (colloquy

among Senators Ellender, Muskie, and Stennis) (disposal of

dredged material in open water is “essential since the Secretary

of the Army is responsible for maintaining and improving the

navigable waters of the United States”) and 1 1972 Leg. Hist. at

177 (Senate Consideration of Conference Report on S. 2770)

(EPA “should have the veto over the selection of the site for

dredged spoil disposal and over any specific spoil to be disposed

of in any selected site.”’).

12

II. MOVING WATER WITHIN THE DISTRICT'S

WATER MANAGEMENT SYSTEM DOES NOT

DISCHARGE POLLUTANTS INTO THAT WATER,

The C-11 Canal (C-11) and Water Conservation

Area-3A (WCA-3A) are components of the Central &

Southern Florida Flood Control Project. Miccosukee, 280

F.3d at 1366. The District manages the Project through the

operation of numerous levees, canals and water

impoundment areas. /d. The C-11, WCA-3A and other

Project components were “part of the historical Everglades .

.. a single body of navigable water.” /d. at 1369, n. 8. The

C-11 was dug by the Army Corps of Engineers in the early

1900's and is now separated from the WCA-3A to its west

by a levee. /d. at 1366. The C-11 collects water that seeps

from the WCA-3A through the levee into the C-11, as well

as runoff from the land surrounding the C-11. /d. The S-9

pump station then “backpumps” water from the canal

through three pipes connecting the C-11 to the WCA-3A.

1999 WL 33494862, *1 (district court opinion); 280 F.3d at

1366. Thus, the C-11 and WCA-3A comprise part of the

Project’s system of keeping at bay the water that would

otherwise flow eastward from the Everglades and flood

populated areas of South Florida “within days.” /d. at

13606.

The S-9 “adds no pollutants to the water which it

conveys” to the WCA-3A. /d. at 1366. Water in the C-11,

however, “contains higher levels of phosphorous than that

naturally occurring in WCA-3A” as a result of runoff from

surrounding land. /d.; see 1999 WL 33494862, *7.

Finding that the pumping results in the “addition of low

levels of phosphorus to WCA-3A,” the court of appeals

held that “the release of water caused by the S-9 pump

station’s operation constitutes an addition of pollutants

13

from a point source.” /d. at 1368-71. But several critical

elements of a regulated discharge are missing.

A. The District is Not the Source of the Pollutants.

The discharge prohibition applies to additions of

pollutants from “point sources.” 33 U.S.C. §§ 1311,

1362(12) and (14). The S-9 pump may be the point at

which pollutants enter the WCA-3A, but as the Court of

Appeals recognized, itis not the source of the pollutants.

280 F.3d at 1366. Thus, the court's holding reads the word

“source” out of the statutory term “point source” contrary to

the fundamental statutory construction principle that words

in a statute are to be given effect rather than treated as

surplusage'” Because the CWA permitting requirement

applies to the “point source” of a discharge and the District

is not the source of the pollution, the District's pumping of

water between its control structures is not a regulated

discharge.

B. The District Does Not Add the Pollutants into the

Water.

The court of appeals specifically recognized that the

S-9 “adds no pollutants to the water which it conveys” to

the WCA-3A. /d. at 1366. Rather, the facts demonstrate

that the water in the C-11, including phosphorous and other

12

~ It is a “cardinal rule of statutory interpretation that no

provision should be construed to be entirely redundant.” Kungys

v. United States, 485 U.S. 759, 778 (1988) (plurality by Scalia);

see, e.g. Rake v. Wade, 508 U.S. 464 (1993): Colautti v.

Franklin, 439 U.S. 379, 392 (1979). Every word and phrase is

presumed to add something to the statutory command. See

Exxon Corp. v. Hunt, 475 U.S. 355, 369 n.14 (1986).

14

constituents, is the product of runoff from surrounding

lands and seepage from the WCA-3A itself. Thus, the

pollution in the C-11 is not “added” by the District, but

instead results from a wide variety of activities that are not

controlled by the District — e.g., a resident washing his car

in his drivews: or a farmer applying pesticides to her

fields. Such »civities, and the types of pollution they

produce, could vary significantly from one day to the next.

Finally, the discharge prohibition is focused on the

disposal of pollutants — “spoil . . . waste . . . residue,

sewage, garbage, sewage sludge . . . wrecked or discarded

equipment . . . industrial, municipal and agricultural waste”

— through discharges into navigable waters. 33 U.S.C. §

1362(6). The District's management of water within its

system components, including continuously backpumping

to the west water that would otherwise flow to the east and

flood populated areas of South Florida, 1s not the disposal

of a pollutant. Indeed, if it were, any conveyance of water

from one part of a water management system to another

would require a permit — a result in no way suggested by

the definition of pollutant and at odds with the statute's use

of terms such as “discard{],” “dispose” and “waste.” 33

U.S.C. §§ 1344, 1362(6).

C. The Act Does Not Regulate Water Movement.

The statute by its plain terms regulates the discharge

of pollutants “into” navigable water. 33 U.S.C. §§ 1311,

1362(6). The statute nowhere regulates the movement of

polluted water. For over twenty years the caselaw has held

that when water is conveyed through a water control

structure, such as where water is conveyed from a lake

behind a damtoa river below or is circulated between a

1S

lake and a water storage reservoir, no addition of pollutants

occurs regardless of any water quality changes that result.

The DC. Circuit held in National Wildlife

Federation v. Gorsuch that no addition of a pollutant occurs

where water behind a dam passes through the dam and

continues with “dam induced water quality changes” in the

stream below because no pollutant ts introduced “into water

from the outside world.” 693 F.2d 156, 161-175 (D.C. Cir.

1982). Similarly, in National Wildlife Federation v.

Consumers Power, water mn Lake Michigan was passed

through a storage reservoir and turbines on the shore for

hydropower and back to Lake Michigan with pollutants not

present before the diversion. The court held that no

addition of pollutants occurred because the facility “merely

changes the movement, flow or circulation” of the w ater,

but it “never loses its status as a water of the United States”

during the diversion. 862 F.2d 580, 588-89 (6th Cir.

1988)."* e

* The Court of Appeals cast off Gorsuch and Consumers Power

in a footnote with the nonsequitur observation that it “know[s] of

no instance” extending the rule upheld in those cases to

“facilities like the S-9 pump station.” 280 F.3d at 1368, n.4.

The court of appeals likened its holding to Catskill M ountains

Chapter of Trout Unltd. v. City of New York and Dubois v. U.S.

Dep't of Agric., but those cases did not involve the movement of

water within a single water management system constructed

within “a single body of navigable water.” /d. at 1369, n. 8; 273

F.3d 481 (2d Cir. 2001), 102 F.3d 1273 (Ist Cir. 1996).

Furthermore, Catskill and Dubois appear to stretch the Act

beyond regulating the disposal “into” water of wastes “from”

sources and into the regulation of the incidents of water

movement, and therefore NAHB does not concede that their

holdings are correct.

16

The required statutory element is a discharge into

water. Mere movement of waterborne constituents within

the District's water management system does not discharge

pollutants info water.

D. Congress Specifically Provided for Water

Management Systems.

There is an obvious reason that attempting to force

the District's management of its water resources into the

Act’s permitting program causes statutory problems at

every turn. Congress never intended it. In fact, Congress

specifically provided the means for addressing the

District's water management actions, and in doing so

illustrated the inaptness of the permitting program.

After emphasizing “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. . . .,” the Act specifies that “Federal agencies

shall co-operate with State and local agencies to develop

comprehensive solutions to prevent, reduce, and eliminate

pollution in concert with programs for managing water

resources.” 33 U.S.C. § 1251(b), (g).

Thus, the Act mandates a cooperative approach to

addressing pollution through water management programs,

not the coercive control of the permitting program. T hat

section 301 prohibits the discharge of “pollutants” while

sections 101(b) and (g) address water “pollution” is

particularly telling. 33 U.S.C. §§ 1251 (b) and (g), 131 1(a).

The Act generally defines “pollutants” as wastes discharged

“into” navigable water, yet “pollution” is defined as “the

man-made or man-induced alteration of the chemical,

physical, biological, and radiological integrity of water.”

17

Id. at § 1362(6) and (19). The Act's plain language

supports the conclusion that the District's movement of

water does not belong under the Act's permitting program.

CONCLUSION

For all of the foregoing reasons, the Eleventh

Circuit's decision should be reversed.

DATED: September 10, 2003

Respectfully submitted,

DUANE J. DESIDERIO VIRGINIA S. ALBRECHT*

THOMAS JON WARD ANDREW J. TURNER

NATIONAL ASSOCIATION OF HUNTON & WILLIAMS LLP

HOME BUILDERS 1900 K STREET, N.W.

1201 FIFTEENTH STREET, N.W. WASHINGTON, D.C. 20006

WASHINGTON, D.C. 20005 (202) 955-1500

(202) 266-8200 *Counsel of Record

Attorneys for Amicus Curiae

National Association of Home Builders