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

No. 02-626

IN THE

SUPREME COURT OF THE UNITED STATES

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

-V.-

MICCOSUKEE TRIBE OF INDIANS, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE THE CITY OF NEW YORK, THE

ASSOCIATION OF METROPOLITAN WATER AGENCIES,

THE NATIONAL ASSOCIATION OF FLOOD AND

STORMWATER MANAGEMENT AGENCIES, THE

AMERICAN WATER WORKS ASSOCIATION, AND THE

ASSOCIATION OF METROPOLITAN SEWERAGE

AGENCIES IN SUPPORT OF PETITIONER

MICHAEL A. CARDOZO,

Corporation Counsel of the

City of New York

Attorney for Amicus Curiae

The City of New York

100 Church Street

New York, NY 10007

(212) 788-1585

LEONARD J. KOERNER,*

SUSAN E. AMRON,

HILARY MELTZER,

WILLIAM S. PLACHE,

of Counsel.

*Counsel of Record

(Additional Counsel Listed on Inside Cover)

September 10, 2003

i)

ROBERT J. SANER

General Counsel for Amici

Association of Metropolitan Water Agencies and

National Association of Flood and Stormwater

Management Agencies

Powers, Pyles, Sutter & Verville, P.C.

1875 Eye Street N.W.

Washington, D.C. 20006

(202) 466-6550

KENNETH A. RUBIN

Counsel for

American Water Works Association

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 739-5140

ALEXANDRA DAPOLITO DUNN

General Counsel

Association of Metropolitan Sewerage Agencies

1816 Jefferson Place, NW

Washington, DC 20036

(202) 533-1803

1

QUESTION PRESENTED

Whether the transfer of untreated water from one

natural source to another constitutes an addition of

pollutants requiring a National Pollutant Discharge

Elimination System (NPDES) permit under the federal

Clean Water Act, 33 U.S.C. § 1342 (2003).

TABLE OF CONTENTS

Page

QUESTION PRESENTED.............,.cc.ccscsccoscosseessecesecseeees i

TABLE OF AUTHORITIES ..............ccccccseeeseeeseereeneeeneees iv

INTERESTS OF AMICI CURIAE ...........0:c0s0seeseesevenseeseees l

SUMMARY OF ARGUMENT ...........ccccccscescesseseeseneeneenes 5

TYPICAL BACKGROUND .............cccscesseeseneseeneeneeneeneees 8

ne ee 11

1.

THE NPDES PROGRAM WAS NOT

INTENDED TO APPLY TO TRANSFERS

AND DIVERSIONS OF UNTREATED

WATER FOR PUBLIC PURPOSES. .............-.+-++++: 11

A. The NPDES Program Is Not an Appropriate

Mechanism for Regulating Diversions of

B. Congress Did Not Intend to Apply the ‘

NPDES Permit Program to Transfers and

Diversions of Untreated Water. ....................000+ 14

iii

C. More Appropriate Regulatory

Mechanisms Exist Under Federal and

State Law for Addressing Diversions of

ey We crenccnsnnessenemaninunensineisnnnmmmeene 15

Il. RECENT DECISIONS OF THE FIRST,

SECOND AND ELEVENTH CIRCUITS,

UNLIKE THE ESTABLISHED

DECISIONS OF THE DISTRICT OF

COLUMBIA AND SIXTH CIRCUITS,

INTERPRET THE TERM “ADDITION”

Il. THE HOLDINGS OF GORSUCH AND

CONSUMERS POWER ARE NOT BASED

ON UNDUE DEFERENCE TO USEPA.................. 26

SE Bcnnssnecuzensncsocusssusnsmsnsnsensnsnsesvenneusescsantnasnent 30

IV

TABLE OF AUTHORITIES

Cases Page

Appalachian Power Co. v. Train, 545 F.2d 1351

SERGE SSS TNE epee 14

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York,

273 F.3d 481 (2 Cir. 2001)......ccecceccsessesseseesees passim

Catskill Mountains Chapter of Trou: Unlimited,

Inc. v. City of New York, 244 F.Supp.2d 41

eee SU rcensannnrsstnnanensememenesmevemansenee 9

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) ..........cccccecseeeeeeeee 26, 27

Christensen v. Harris County, 529 U.S. 576

GREED cnenssemneransencnnnuscsnmemmnaneemmensneemecnae 26, 27, 28

Committee to Save Mokelumne River v. East Bay

Municipal Utility Dist., 13 F.3d 305 (9 Cir.

1993), cert. denied sub nom. Members of Cal.

Reg 'l Water Quality Control Board v. Comm. to

Save Mokelumne River, 513 U.S. 873 (1994)........... 24

Dubois v. United States Dep't of Agric.,

102 F.3d 1273 (1% Cir. 1996)........ccececceseseees 11, 24-25

Miccosukee Tribe of Indians et. al v. South Florida

Water Management Dist.,

280 F.3d 1364 (11™ Cir. 2002) ......cccccceeseeeveees passim

National Wildlife Federation v. Consumers Power,

862 F.2d 580 (6™ Cir. 1988) .........ccsccescseeseesveeee passim

National Wildlife Federation v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982) ..0......cccecceceeeeeees passim

Vv

Northern Plains Resource Council v. Fidelity

Exploration and Development Co.,

325 F.3d 1155 (9™ Cir. 2003) .......eccccccecessesseseeseeseeees 25

United States v. Law, 979 F.2d 977 (4" Cir. 1992)........24

Statutes and Regulations

Federal Statutes

Rules of the Supreme Court of the United States, 28

cs NT CE scerrereenenscnnenetenenedeineomememennenens 1

Clean Water Act of 1972, Pub. L. 92-500, 86 Stat.

ey Gi Gia ncisccesnentntenennnnsnninntemmenmemnememeccsnnes 5

Clean Water Act, 33 U.S.C. §§ 1251 et seq.

[IIE cnsestionensnneianemesnnsestmnnnnmeenepninermimenuenten passim

Clean Water Act, 33 U.S.C. § 1251) .0.......:ccccccceseeeeeees 26

Clean Water Act, 33 U.S.C. § 1251(g) ..........cccccceeeeeeeee 26

Clean Water Act, 33 U.S.C. § 1311(a) .................000 11, 23

Clean Water Act, 33 U.S.C. § 1313(d) ...............020. 16, 17

Clean Water Act, 33 U.S.C. § 1314(f) 0.0.0... eeeees 7,14

Clean Water Act, 33 U.S.C. § 1329(a)(1)..............-.. 16, 17

Clean Water Act, 33 U.S.C. § 1342..............:.2000.:2 DGSSIM

Clean Water Act, 33 U.S.C. §1362(12) ..............:0000 11,24

Safe Drinking Water Act, 42 U.S.C. § 300(f) et seq.

ee? 19, 20, 21

Federal Regulations

ae Oe EE crccnsnccecerceccnnrenenmmecenmmens 18

se TEED cnrccrcteenmenmsannesemianeninmets 18

AO CLF.R. § 122.44(d)(1) cocccccecscccccesscsueccssscsssessucesseeen 9,13

vi

40 C.F.R. § 130.6(C)(4) .......cccscssscssssscsssersssseessesenserenseees 17

GO CPR. 6 ADI TID cccccccnccrpscccsscscssssensscsssssrsseesssssssseseeses 17

Surface Water Treatment Rule, 40 C.F.R. § 141.70

CF $0. (2003)......nscsceersrnscsessrerssressssessecsncosenees 19, 20, 21

Surface Water Treatment Rule, 40 C.F.R. §

I iiadaieah iene iin lincaatdina inti ninaiehiaiaadianlimal 20, 21

State Statutes

New York State Environmental Conservation Law

§ 15-0505 (McKinney 2003) ............cccesecereseeesereees 22

New York State Envifonmental Conservation Law

OB GE eousesssnssscsnsnecesnnscevesnsnssensetantipenmntanestsscesensee’ 22

New York State Environmental Conservation Law }

Le ee 22

New York State Environmental Conservation Law

Be Be ccernscesentconsennnsccsennimnmntenemeciesneitensonnecese’ 21

New York State Environmental Conservation Law

Qo sescsnescscsneqsasssenenessensessessensessene 22

New York State Environmental Conservation Law

Qo sa i iasiielitentaahiaasmiattantiiediineaiel 21

_New York State Environmental Conservation Law

i EDI cagsesncnsssecamsenstionpmnmemennemeennnetemmnasnete 22

State Regulations

N.Y. Comp. Codes R. & Regs. tit. 6, Part 670

(EIT acasencnmnanemnenisnnecnnnasasennmensnegnepnepeaunepsgnemupenseel 10, 22

N.Y. Comp. Codes R. & Regs. tit. 6, § 700 et seq.......... 21

N.Y. Comp. Codes R. & Regs. tit. 6, § 703.2...........00000+ 9

——

vii

Other

hitp://www.epa.gov/compliance/planning/data/ (last

updated April 8, 2003) .0.........ccccccccsecseeeeeeeeeeeeeeenees 12

USEPA, Fiscal Year 1998 Integrity Act Report to

the President and Congress,

http://epa.gov/ocfo/integrity/integrity.pdf (last

updated December 29, 1998) ..........:cccccccseresserereeeeees 12

http://epa.gov/ocfo/finstatement/2002ar/ar02_goal2

.pdf (last updated January 31, 2003).............000. 12-13

http://cfpub.epa.gov/npdes/permitissuance/backlog.

cfm (last updated July 15, 2003)............ccccceseeeeeeeees 13

http://epa.gov/npdes/images/permit_backlog.gif............ 13

http:www.epa.gov/ocfo/plan/2003goal2.pdf (last

updated March 5, 2003) .0.......ccccccecceeeeeeeeeeseeeeeeeeeeees 13

http://cfpub.epa.gov/npdes/home.cfm?

program _id=6 (last updated June 26, 2002) ............. 18

http://www.dec.state.ny.us/website/dow/

MS4Permit.pdf (last modified January 8, 2003)....... 19

INTERESTS OF AMICI CURIAE

Amici curiae submit this brief in support of

petitioner South Florida Water Management District

seeking reversal of the lower court’s decision in

Miccosukee Tribe of Indians, Sam Poole v. South Florida

Water Management District; Friends of the Everglades v.

South Florida Water Management District, 280 F.3d 1364

(11" Cir. 2002).

Amici represent local governments, public utilities,

‘water suppliers, and local water management agencies.

Amici al\ have direct roles in ensuring clean and safe water

in our country. However, amici also have an interest in

ensuring that their activities are regulated with suitable

laws, and believe that the Eleventh Circuit’s erroneous

decision interferes with appropriate local water

management.

Transfers and diversions of untreated water are

essential to the design and operation of public water supply

systems, municipal and regional flood contro] and water

management efforts, and structures designed to assist in

inland navigation. All surface water supply systems

involving more than a single source rely fundamentally on

local governments’ ability to move water from one source

to another to meet local water supply and safety needs.

Countless water management systems throughout the

' Pursuant to Rule 37.6 of this Court, amici represent that

counsel for amici authored this brief in its entirety and that no

person or entity other than amici and their representatives made

any monetary contribution to the preparation or submission of

this brief. The parties’ counsel have consented to the filing of

this brief, and letters reflecting that consent are submitted to the

clerk’s office with this brief.

2

country transfer water to areas that need water or away

from areas in danger of flooding. Operation of canals,

locks, and dams involves movement of water from one

body — whether natural or constructed — to others. Amici

support petitioner’s request that the Court reverse the

Eleventh Circuit Court of Appeals’ decision because it

threatens the operation of all such systems and is

inconsistent with the language and intent of the Clean

Water Act.

Amici are troubled by the Eleventh Circuit’s

decision and the earlier Second Circuit decision in Catskill

Mountains Chapter of Trout Unlimited, Inc. v. City of New

York, 273 F.3d 481 (2" Cir. 2001), on which the Eleventh

Circuit relied, because they dramatically change the

regulatory structure for local governments and other water

managers by holding that transfers of natural water, in the

context of routine water management activities, require

Clean Water Act permits (National Pollutant Discharge

Elimination System, or NPDES, permits). Virtually none

of the millions of dams, levees, aqueducts, canals, and

other structures used by the federal, state, and local

governments and public utilities for ordinary management

of water, for public water supply, flood control, navigation,

and other governmental and public purposes, currently

operates pursuant to such a federal permit. Based on the

numerous water management structures that predate the

enactment of the Clean Water Act in 1972, it was clear to

Congress when the statute was developed that the nation

depended on such facilities. There is no indication in the

language or history of the Clean Water Act that Congress

intended to interfere with these basic structures’ functions,

which are now threatened by the Eleventh Circuit’s

holding. The statute was comprehensively amended in

1987 and has been amended several times since. At no

time has Congress given any indication that it believed the

3

NPDES program should apply to these water management

structures.

Amicus the City of New York (the City), a political

subdivision of the State of New York, owns and operates a

water supply system that provides water of excellent

quality to some nine million residents of the City and State

of New York. The City’s water supply system depends on

transfers of natural, untreated water from each reservoir

downstream to the next. As discussed below, the City’s

ability to supply sufficient water to fulfill its demand is

threatened by the Second Circuit’s decision in Catskill

Mountains. In addition, as a result of that decision, the City

has already been assessed over $5.7 million in past

penalties for operating a water supply facility that has been

on line for nearly eighty years.

The Association of Metropolitan Water Agencies

(AMWA) represents the nation’s largest publicly-owned

municipal drinking water suppliers. AMWA’s 168

members include agencies and divisions of city

governments, and special purpose commissions, districts,

agencies and authorities created under state law to supply

drinking water to the public. AMWA’s members provide

drinking water to over 110 million people throughout the

country. Many AMWA member agencies own or operate

lakes, reservoirs, dams, aqueducts, tunnels, pipelines and

other conveyances in and through which source waters are

collected, stored, moved and otherwise managed as part of

their mission to supply adequate supplies of drinking water

to the populations they serve. Water management activities

in the facilities of many AMWA members involve transfers

from one water source or body to another.

The National Association of Flood and Stormwater

Management Agencies (NAFSMA), established in 1979,

4

represents more than 100 local and state flood control and

stormwater management agencies. NAFSMA members are

public agencies whose function is the protection of lives,

property and economic activity from the adverse impacts of

storm and flood waters. NAFSMA member activities are

also focused on the improvement of the health and quality

of our nation’s waters. The mission of the association is to

advocate public policy, encourage technologies and

conduct education programs to facilitate and enhance the

achievement of the public service functions of its members.

NAFSMA is concerned that routine flood management

activities would require NPDES permits under the Circuit

Court’s decision.

The American Water Works Association (AWWA)

is an international, nonprofit, scientific and educational

society dedicated to the improvement of drinking water

quality and supply. Founded in 1881, the Association is the

largest organization of water supply professionals in the

world. AWWA’s 57,000-plus members are leaders in

water quality analysis, technology development, treatment

and distribution of drinking water, water management, and

water use. Its members represent the full spectrum of the

drinking water community, including utility managers,

plant operators, environmental advocates, state and federal

regulators, scientists, academicians, and others who hold a

genuine interest in water supply and public health.

AWWA’s membership includes approximately 4,800 local

or regional drinking water utilities, which collectively

provide safe drinking water to more than 80 percent of the

American people.

The Association of Metropolitan Sewerage

Agencies (AMSA) represents the nation’s publicly-owned

wastewater treatment agencies (POTWs). AMSA’s nearly

300 member agencies provide the majority of the U'S.

5

population with reliable sewer service and collectively treat

and reclaim over 18 billion gallons of wastewater each day.

AMSA members operate their POTWs under the Clean

Water Act’s NPDES permitting program. AMSA members

are concerned, however, that the Eleventh Circuit’s

decision unnecessarily will subject new aspects of their

operations to NPDES permitting for the first time.

SUMMARY OF ARGUMENT

This case is of great importance to the nation’s

municipal water management agencies. The ruling of the

Eleventh Circuit, if not overturned, will burden tens of

thousands of water authorities and municipal water

departments and agencies with unnecessary, and in many

cases unattainable, regulatory requirements. In perhaps the

majority of cases, local water management agencies will be

unable to obtain or comply with NPDES permits for

facilities that are essential to many public uses, including

flood control, ensuring a reliable supply of water for

domestic, commercial, and industrial uses, and fire

suppression. Where it is possible to comply with permit

terms and conditions, the cost of doing so is incalculable.

The harm to the public will be enormous and direct if the

Eleventh Circuit decision is upheld, while in most cases the

decision will not lead to any measurable environmental

benefit.

Municipal and regional water management systems

existed in the United States for decades before the

enactment of the Clean Water Act in 1972. Pub. L. 92-500,

86 Stat. 880 (Oct. 18, 1972). These systems are designed

to move water from one natural body to another, or to

change the flow of water. During the 30 years since its

enactment, the Clean Water Act has never, until recently,

been interpreted to regulate such transfers and diversions of

6

natural, untreated water. The United States Environmental

Protection Agency (EPA) has never required that such

transfers and diversions operate pursuant to Clean Water

Act NPDES permits. Similarly, none of the more than 40

states with delegated authority to administer the Clean

Water Act permit program by EPA has historically required

Clean Waiter Act permits for these water transfers and

diversions. As demonstrated in this brief, the NPDES

program is the wrong tool for regulating water transfers and

diversions. The consequences of requiring NPDES permits

for such activities could be devastating to water suppliers,

local governmental water managers, and the citizens they

serve every day across the nation.

Amici emphasize that at the core, our fundamental

interest is in protecting our nation’s waters. We and our

member organizations, governments, and utilities are all

engaged in activities intended to protect, treat, reclaim, and

otherwise improve water quality. In arguing that the

NPDES program is not the appropriate mechanism for

regulating transfers and diversions of untreated water, we

do not suggest that such transfers and diversions should not

be subject to regulation. However, as discussed below,

there are numerous existing provisions in both federal and

state law that were designed to assure that water transfers

and diversions are managed in ways that avoid pollution.

In most cases, these other provisions can regulate transfers

and diversions more appropriately and effectively than the

ill-suited NPDES program. We believe that proper use of

these existing measures will address the fundamental

concerns of respondents in this case and avoid the

significant problems created by the appellate courts’ recent

attempts to apply the NPDES program to these water

transfers in a new way, far outside the program’s intended

scope.

7.

7

Indeed, in promulgating the Clean Water Act itself,

Congress established a separate provision — independent of

the NPDES program -— that specifically addresses water

transfers and diversions. Congress directed EPA to

develop “processes, procedures, and methods to control

pollution resulting from ... changes in the movement, flow,

or circulation of any navigable waters or ground waters,

including changes caused by the construction of dams,

levees, channels, causeways, or flow diversion facilities.”

33 U.S.C. § 1314(f)(2)(F). This provision makes clear that

Congress recognized that flow diversion facilities should be

treated differently from facilities subject to NPDES

permits.

This provision shows that Congress recognized the

need for flexibility in regulating water diversions to ensure

that water management for such purposes as water supply,

flood control, and navigation was not unreasonably

restricted simply because of naturally occurring water

quality conditions. In contrast, the NPDES program places

significant pollutant removal responsibilities on the

operators of permitted facilities to assure compliance with

water quality standards. Where the water manager is

simply moving water, without introducing pollutants,

requiring NPDES permits may have the anomalous effect

of essentially requiring treatment of natural water.

Moreover, requiring flow diversions to receive

NPDES permits will overwhelm the already under-

resourced NPDES permit program. Over the past 30 years,

EPA and the NPDES-delegated states combined have

issued some 135,000 Clean Water Act permits for existing

discharges. If, as the Eleventh Circuit’s decision in

Miccosukee suggests, the over two million dams and

diversion structures across the nation require NPDES

permits, a fundamental restructuring of the administration

8

of sucl, permits-far beyond what Congress envisioned when

it created the NPDES program-unquestionably will be

required.

TYPICAL BACKGROUND

The facts of the Catskill Mountains case provide an

example of the types of diversions and transfers frequently

undertaken by municipal and regional water management

agencies for water supply, flood control, and other local

water management purposes. We thus describe the facts in

Catskill Mountains in some detail to illustrate the types of

facilities currently operating today throughout the United

States without NPDES permits.

New York City owns and operates a water supply

system in upstate New York. The Shandaken Tunnel

transfers water from the Schoharie reservoir, one of the two

reservoirs that comprise New York City’s Catskill water

supply system, to the other, the Ashokan reservoir.

Specifically, the Tunnel moves water from the Schoharie

reservoir to the Esopus Creek, the main tributary to the

Ashokan. New York City’s average demand for water is

about 1.2 billion gallons per day, of which the Catskill

system generally provides about 40%. Approximately 40%

of the Catskill supply, or 16% of New York City’s drinking

water, originates in the Schoharie reservoir. The Ashokan

reservoir went into service in 1915. The Shandaken Tunnel

and the Schoharie reservoir were both on iine by 1926.

New York City does not treat water collected in the

Schoharie reservoir before diverting it through the

Shandaken Tunnel. However, the mountains surrounding

the Schoharie reservoir are characterized by extensive

deposits of silts and clays, which are often exposed by

erosion, particularly during storms. As a result, water from

the Schoharie reservoir that is released from the Tunnel

9

regularly contains elevated levels of suspended solids, and

thus turbidity. Extensive research and analysis indicate that

even with reasonable structural and programmatic measures

in place, the releases from the Shandaken Tunnel regularly

will continue to be visibly more turbid than the receiving

water, the Esopus Creek.

Clean Water Act permits must include effluent

limits to “achieve water quality standards ... including

State narrative criteria for water quality.” 40 C.F.R.

§ 122.44(d)(1) (2003). The state water quality standard for

discharges of turbid waters in New York is: “no increase

that will cause a substantial visible contrast to natural

conditions.” N.Y. Comp. Codes R. & Regs. tit. 6, § 703.2

(2003). Because there may not be a practicable way to

ensure that water released from the Shandaken Tunnel is

never more turbid than the receiving waters, it is possible

that New York City will be unable to obtain a Clean Water

Act permit for its transfer of water through the Tunnel.

Under the reasoning of the Eleventh Circuit, which adopted

that of the Second Circuit in Catskill Mountains, New York

City is in violation of the Clean Water Act every time it

transfers water through the Tunnel.’ This could lead to a

prohibition against New York City’s continued use of this

source of approximately 16% of its water supply,

jeopardizing the City’s ability to ensure an adequate supply

of water to meet its daily demand.

Similarly, if the Eleventh Circuit’s decision is left to

stand, the myriad water management facilities involved in

analogous diversions and transfers of natural, untreated

water for water supply and flood control purposes

? Indeed, in the Catskill Mountains case, on remand, the District

Court assessed the City over $5.7 million in penalties for past

violations. 244 F. Supp. 2d 41 (N.D.N.Y. 2003).

10

(including other portions of New York City’s water supply

system) face a similar impossible dilemma: either to be

subject to continual enforcement actions under the Clean

Water Act, potentially involving extensive civil and even

criminal penalties, or to be required to cease fundamental

public water supply and water management activities.

Moreover, it is not always simple to assess the

overall impacts of water management activities. In many

cases, historic diversions or transfers of natural, untreated

water are now vital to sustaining a healthy aquatic

environment in the receiving water body. For instance, the

generally cold water from the Shandaken Tunnel is

essential to maintaining the exceptional trout fishery in the

Esopus Creek, especially during the summer when

temperatures in the Creek rise and “natural” flow (without

the Tunnel’s contribution) is diminished.’ If the reasoning

of the Second and Eleventh Circuits is upheld, operators of

water supply or flood control infrastructure may be forced

to alter or even eliminate diversions or transfers of water in

order to avoid liability under the Clean Water Act. The

result in many cases will be a net detriment to ecosystems

that have come to depend on such diverted flows. Such a

result runs counter to the goals of the Clean Water Act.

The biochemical constituents of distinct, untreated

bodies of water will be different from one to another,

whether the water bodies are in naturally connected

watersheds or not. Thus, diversions or transfers of

untreated water are likely to involve transfers of water

* Indeed, as noted below, New York State requires the City to

release specified volumes of water from the Shandaken Tunnel

pursuant to its authority to protect natural resources and

recreational use of water. N.Y. Comp. Codes R. & Regs. tit. 6,

Part 670 (2003).

ll

containing different constituents, and constituents in

different concentrations, than may occur in the receiving

waters, such as turbidity in the Catskill Mountains case or

the nutrients at issue in Miccosukee. For the reasons set

forth herein, however, amici urge this Court to find that

such incidental movement of the natural constituents of

untreated water are not “additions” of pollutants requiring

NPDES permits under the Clean Water Act.

ARGUMENT

The Clean Water Act provides that unless a

discharge permit is obtained, “the discharge of any

pollutant by any person shall be unlawful.” 33 U.S.C.

§§ 1311(a), 1342. A NPDES permit is required when (1) a

pollutant is (2) added (3) to navigable waters (4) from (5) a

point source. 33 U.S.C. §§ 1311(a), 1342, 1362(12); see

also National Wildlife Federation v. Consumers Power,

862 F.2d 580, 582 (6" Cir. 1988). In Miccosukee, Catskill

Mountains, and Dubois v. United States Dep't of Agric.,

102 F.3d 1273 (1" Cir. 1996), Courts of Appeals have

abandoned an established line of appellate cases and have

determined that a transfer of untreated water can be an

“addition” under the Clean Water Act. This interpretation

was wrong for a number of reasons.

THE NPDES PROGRAM WAS NOT

INTENDED TO APPLY TO

TRANSFERS AND DIVERSIONS OF

UNTREATED WATER FOR PUBLIC

PURPOSES.

Because the NPDES program lacks both the

administrative capacity and the regulatory flexibility

necessary to deal appropriately with transfers and

12

diversions of natural, untreated water, Miccosukee and

similar decisions like Catskill Mountains compromise the

continued operation of water supply and management

systems across the nation. There are numerous federal and

state laws that more appropriately and effectively regulate

water transfers and diversions than the NPDES provisions

of the Clean Water Act.

A.The NPDES Program Is Not an Appropriate

Mechanism for Regulating Diversions of Water.

The recent appellate decisions at issue here threaten

the continued operations of certain facilities that are vital

for water supply, local government water management,

flood control, and navigation. These decisions run counter

to Congress’ intent that states and local governments retain

primary control over local water management decisions.

If these decisions are not reversed, the scope of the

Clean Water Act’s NPDES permit program will far exceed

the capacities of EPA and states with delegated authority to

administer the program. According to EPA, “more than

135,000 facilities nationwide” currently have NPDES

permits. See http://www.epa.gov/compliance/planning/

data/ (last updated April 8, 2003). Even with the current

universe of permitted entities, EPA and the delegated states

have not been able to administer the NPDES program in

accordance with the statutory requirement that NPDES

permits be issued for no more than five years. See 33

U.S.C. § 1342(b)(1)(B). In fact, in December 1998, EPA

identified NPDES permit backlog as a “material weakness”

at the Agency. See USEPA, Fiscal Year 1998 Integrity Act

Report to the President and Congress, http://epa.gov/

ocfo/integrity/integrity.pdf at B-3 (last updated December

29, 1998). The deficiency has not been cured as of the

Fiscal Year 2002 Report. See http://epa.gov/ocfo/

DP ceca as a,

13

finstatement/2002ar/ar02_goal2.pdf (last updated January

31, 2003). EPA has established a goal of reducing the

backlog of all permits to 10 percent by the end of 2004.

See http://cfpub.epa.gov/npdes/permitissuance/backlog.cfm

(last updated July 15, 2003). As of March 31, 2003, 18

percent of the approximately 116,000 NPDES permits

analyzed had expired. See http://epa.gov/npdes/images/

permit backlog.gif. EPA’s draft Strategic Plan for 2003-

2008 includes reducing the NPDES permit backlog as a key

Clean Water Act goal. See http:www.epa.gov/ocfo/

plan/2003goal2.pdf (last updated March 5, 2003).

Under Miccosukee and Catskill Mountains, more

than two million dams, and countless other diversion

structures, across the nation currently operating without

NPDES permits will be added to the backlogged and

overburdened NPDES program. See, e.g., National

Wildlife Federation v. Gorsuch, 693 F.2d 156, 182 (D.C.

Cir. 1982). In light of the manifest administrative problems

with the NPDES program today, a 15-fold increase in the

number of entities requiring Clean Water Act permits

would without question overwhelm permitting agencies

across the nation. The scope of the NPDES program under

Miccosukee is an order of magnitude greater than either

Congress or EPA has envisioned in the more than 30 years

since the Clean Water Act took effect.

Moreover, because NPDES permits must include

effluent limits to “achieve water quality standards ...

including State narrative criteria for water quality,” 40

C.F.R. § 122.44(d)(1), the NPDES program lacks the

flexibility to deal appropriately with transfers of untreated

water. Where the transferred water contains pollutants that

are not introduced by the entity operating the transfer, as in

Miccosukee (where the water contains phosphorus from

urban runoff) and Catskill Mountains (where the water

14

contains naturally occurring turbidity), this requirement can

place an impossible burden on the transferor.* The Catskill

Mountains case is illustrative. As noted above, there may

be no feasible mechanism for ensuring that Schoharie water

released from the Shandaken Tunnel meets the New York

State water quality standard of no substantial visible

increase in turbidity. If the City proves to be unable to

obtain a NPDES permit and this Court does not reverse the

decisions of the Eleventh and Second Circuits, 16% of the

City’s water supply may be in jeopardy.

B. Congress Did Not Intend to Apply the NPDES

Permit Program to Transfers and Diversions of

Untreated Water.

Under the Clean Water Act, Congress directed EPA

to study and make recommendations concerning “changes

in the movement, flow, or circulation” of navigable waters,

including those caused by “flow diversion facilities,” in one

of several statutory provisions addressing nonpoint sources

of pollution. 33 U.S.C. § 1314(f)(2)(F). In recommending

consultation with appropriate Federal and State agencies on

processes and methods to control pollution resulting from

flow diversion facilities, including dams and levees, 33

U.S.C. § 1314(f), Congress clearly contemplated that

facilities that change the flow of water would be evaluated

differently from point sources of pollutants. See

Consumers Power, 862 F.2d at 588 (“This supports ... the

. Moreover, this burden is unfair. The Clean Water Act was

intended to regulate entities that introduce pollutants, not entities

that merely move water that already contains pollutants. See,

e.g., Appalachian Power Co. v. Train, 545 F.2d 1351, 1377-78

(4" Cir. 1976) (Clean Water Act does not make industrial

dischargers responsible for removing constituents occurring

naturally in intake water or introduced by upstream discharges).

15

view that generally water quality changes caused by the

existence of dams and other similar structures were

intended by Congress to be regulated under ‘nonpoint

source’ category of pollution’’) (citing Gorsuch, 693 F.2d at

177).

In other words, while Congress clearly

contemplated that pollutants might be moved within the

nation’s waters as a result of facilities diverting flow, like

the S-9 pumps and the Shandaken Tunnel, the Clean Water

Act is structured to address transfers of pollutants resulting

from such diversions in a different manner from additions

subject to the NPDES permitting requirements of 33 U.S.C.

§ 1342.

C.More Appropriate Regulatory Mechanisms Exist

Under Federal and State Law for Addressing

Diversions of Untreated Water.

In urging rejection of the NPDES program as the

tool to manage the incidental water quality impacts of

myriad water movement structures such as the S-9 pumps

at issue in Miccosukee, amici do not suggest that such

structures should not be evaluated and regulated to address

water quality impacts. Rather, we ask the Court to

recognize that many other provisions of federal and state

law provide sufficient, and in fact more appropriate,

regulatory frameworks to address any water quality impacts

of transfers of untreated water. The following section

provides examples of such other provisions.

16

1. Federal Programs

a. Total Maximum Daily Loads and State Water

Quality Management Plans

In most cases, a receiving water that fails to meet

applicable water quality standards for a particular pollutant

will be placed on the state’s impaired waters list under the

Clean Water Act and therefore subject to the development

of total maximum daily loads (TMDL). 33 U.S.C.

§ 1313(d). TMDLs are a management tool for identifying

sources of pollutants of concern and for allocating those

pollutants to their various contributors. TMDLs are

implemented for point sources via NPDES permits and for

nonpoint sources through state best management practices.

The TMDL program, in contrast to the NPDES

permitting program, is an appropriate means to assess ways

to-regulate and control pollutants in the water bodies at

issue in both Miccosukee and Catskill Mountains, because,

in both cases, the pollutants are generally added by

nonpoint sources, and the TMDL program, unlike the

NPDES program, considers the relative constituents of both

point and nonpoint sources of pollution, as well as a

“margin of safety” to protect water quality and account for

any uncertainties.

In addition to the TMDL program, states must

establish Water Quality Management (WQM) Plans to

address water bodies for which water quality standards

cannot be attained or maintained without the control of

nonpoint sources. 33 U.S.C. § 1329(a)(1)(A). A WQM

Plan “identifies those categories and subcategories of

nonpoint sources, or, where appropriate, particular

nonpoint sources which add significant pollution ... in

amounts which contribute” to the failure to meet water

quality standards. 33 U.S.C. § 1329(a)(1)(B). A WQM

17

Plan includes a process for identifying best management

practices to reduce pollution from the significant individual

nonpoint sources or categories of sources, and describes the

programs that have been implemented to control pollution

from those sources. 33 U.S.C. §§ 1329(a)(1)(C) and (D).

A WQM Pian includes both regulatory and non-regulatory

means to control nonpoint source pollution. 40 C.F.R.

§§ 130.6(c)(4)(i) and (ii) (2003). Moreover, the TMDLs

that are established under 33 U.S.C. §1313(d) are

incorporated into a state's WQM Plan. 40 C.F.R.

§ 130.7(a).

The major source of the pollutant at issue in

Miccosukee, phosphorus, generally originates from

nonpoint sources. Similarly, in Catskill Mountains, the

turbidity and suspended solids of concern enter the

Schoharie Reservoir mainly through nonpoint sources, and

result from both the natural conditions in the Schoharie

watershed and human activity, such as farming, logging,

development and disturbances to streambanks and

streambeds. The appropriate place to address the pollutants

in both cases is where they enter the water. The means to

address them are the Clean Water Act’s nonpoint source

programs, including the TMDL program and state WQM

plans.

Regulators, environmental advocates, and the

scientific community continually stress that it is far more

effective to address pollutants at their source than to try to

remove them, or compensate for their impacts, after they

have been added to the nation’s waters. The decisions in

Miccosukee and Catskill Mountains run counter to this

fundamental principle by endorsing an impractical

approach, seeking to address pollutants at the wrong end of

the conveyance. By attempting to address pollutants when

water is transferred rather than when the pollutants are

18

introduced-after the fact rather than at their sources-the

Eleventh and Second Circuits have failed to solve the

actual environmental problem—reducing pollution in the

nation’s waters.

b. Municipal

Permits

Separate Storm Sewer System

The NPDES program itself includes provisions that

are better tailored to addressing pollutants originating in

urban runoff, such as those at issue in Miccosukee, than

requiring individual NPDES permits for the transfers of

water containing such pollutants.” Under the stormwater

provisions of the Clean Water Act, EPA has established

permit programs to protect water quality by reducing the

pollutants in stormwater runoff from municipalities and

other populated areas — initially for areas with populations

of 100,000 or greater® (the Phase I Program, implemented

in the early 1990s) and more recently for areas designated

as “urbanized” by the latest census’ (the Phase II Program,

implemented earlier this year).

Municipalities required to obtain permits for their

municipal separate storm sewer systems (MS4s) are

required to implement best management practices to reduce

* Many stormwater discharges are regulated as “point sources”

under the NPDES program because stormwater from activities

most likely to cause pollution is typically controlled by storm

sewers or other stormwater management systems with controlled

discharge points. See, e.g., http://cfpub.epa.gov/npdes/home.

cfm?program_id=6 (last updated June 26, 2002).

° See 33 U.S.C. § 1342(p)(2); 40 C.F.R. § 122.26.

” See 33 U.S.C. § 1342(p)(6); 40 C.F.R. § 122.32(a)(1).

“A nm

19

stormwater pollutants to the “maximum extent practicable.”

33 U.S.C. § 1342(p)(3)(B)(iii).*

Thus, to the extent that the pollutants of concern in

a water transfer or diversion come from urban stormwater

runoff, the MS4 permit program as well as nonpoint source

best management practices can appropriately address the

pollutants at their sources. The Eleventh Circuit’s decision,

in contrast, would instead regulate such pollutants once

they are already in the waters of the United States,

essentially requiring water transfer facilities to “treat” these

pollutants in the course of diverting, pumping, or moving

the water. This indirect and impractical approach to

addressing the underlying water quality concern places

regulation at the wrong location, and may place pollutant

removal responsibilities on the wrong parties.

c. The Safe Drinking Water Act and Surface Water

Treatment Rule

Municipal water supply systems are closely

regulated under the federal Safe Drinking Water Act

(SDWA), 42 U.S.C. § 300(f) et seg., and its implementing

regulations, the Surface Water Treatment Rule (SWTR), 40

C.F.R. § 141.70 et seg. The SDWA and SWTR, among

other things, set the maximum level of contaminants that

are allowed in public water systems, and set forth the

® New York State law goes even further than the Clean Water

Act, requiring MS4s to “take all necessary actions to ensure

future discharges do not cause or contribute to the violation of a

water quality standard.” New York State Department of

Environmental Conservation SPDES General Permit for

Stormwater Discharges from Municipal Separate Stormwater

Sewer Systems, Permit No. GP-02-02, http://www.dec.state.ny.

us/website/dow/MS4Permit.pdf, at 9 (last modified January 8,

2003).

20

criteria that must be met for a public water system to avoid

filtration. See 40 C.F.R §§ 141.70 and 141.71. As part of

the criteria to avoid filtration, the SWTR limits turbidity to

5 NTU immediately prior to the first point of disinfection.

40 C.F.R. § 141.71(a)(2).

The facts of the Catskill Mountains case again

provide an example of how water transfers are already

appropriately reviewed, managed, and regulated. New

York City’s Catskill system supplies unfiltered water to the

City of New York, and thus operates under a Filtration

Avoidance Determination (FAD) issued by the EPA under

40 C.F.R. §§ 141.71 and 141.171. The City’s most recent

FAD, which was issued in November 2002, contains

several provisions that require the City to address and

control pollution entering the City’s Catskill and Delaware

water supply systems from both point and nonpoint

sources. The FAD specifically requires the City to address

suspended solids and turbidity entering the source waters of

the Schoharie Reservoir. The requirements include a

stream management program to restore streambanks and

streambeds, an agricultural program to reduce pollution

from farms near the watershed, and a forestry program to

address erosion resulting from logging. Most importantly,

the FAD requires the City to study and implement any

feasible, effective and cost-effective means to reduce

turbidity in waters released through the Shandaken Tunnel.

Thus, the pollutants at issue in Catskill Mountains

are being addressed under the SDWA and SWTR, both at

the location where they enter the water system and after

water is released through the Shandaken Tunnel. The FAD

program administered under the SDWA and SWTR not

only imposes more effective environmental controls than

the NPDES permitting program, it also resolves the

underlying issues without losing sight of the fact that the

21

main purpose of the Catskill system is to provide a safe and

adequate supply of drinking water to the public. Because

the entire supply system, including the Shandaken Tunnel,

is effectively regulated under the SDWA and SWTR, it

should not be subjected to the intransigence and

inflexibility of the NPDES point source permitting program

which, if applied to the City’s water supply system, will

jeopardize the City’s ability to provide a safe supply of

water to the nine million residents, and countless

commercial users and workers, who rely on it. While the

specific source control measures in New York City’s FAD

would not be required of filtered public water systems

under the SDWA, many filtered systems throughout the

country employ similar measures under state or local law or

regulation.

2. State Laws and Regulations

As noted above, in addition to the federal

requirements, a number of state laws and regulations

address and control pollutants in the context of municipal

water management and water transfers. We describe

regulatory programs in New York as illustrative of the

types of programs that exist throughout the nation. These

provisions operate independently from the NPDES

program.

Consistent with its delegated authority to administer

the Clean Water Act, New York State has adopted and

enforces water quality standards. See New York State

Environmental Conservation Law (ECL) § 15-1313(2)

(McKinney 2003); see also ECL § 17-0301, N.Y. Comp.

Codes R. & Regs. tit. 6, § 700 et seg. The State classifies

bodies of water in accordance with their best use, and

adopts and enforces water quality standards for specific

water bodies, including the Esopus Creek, based on those

22

classifications. See id. Releases that violate the state water

quality standards are subject to enforcement by the

Commissioner of the New York State Department of

Environmental Conservation. ECL § 17-0501. Releases

from the Shandaken Tunnel are subject to these provisions,

independent of the NPDES or New York’s State Pollutant

Discharge Elimination System (SPDES) program.

New York State law also prohibits changing,

modifying or disturbing the course, channel or bed of any

stream without a permit. ECL § 15-1501. Under another

provision, a permit is required to excavate or place fill in

navigable waters. ECL § 15-0505. These laws, if enforced

properly, are specifically tailored to address many of the

activities that create turbidity in source waters of the

Schoharie reservoir, and thus in releases from the

Shandaken Tunnel.

Finally, New York State regulates releases from

reservoirs in order to protect natural resources and

recreational uses in the receiving waters. ECL §§ 15-0801

and 15-0805.’ Again, amici urge this Court to consider that

applying the NPDES permit program to water transfers and

diversions will only further complicate and burden these

local water management activities, contrary to Congress’

intent and in many cases, unnecessarily duplicate existing

state requirements.

* Indeed, New York City is required, under regulations

promulgated by New York State pursuant to these statutes, to

make releases from its Shandaken Tunnel, to enhance

recreational use of the Esopus Creek. N.Y. Comp. Codes R. &

Regs. tit. 6, Part 670.

23

Il

RECENT DECISIONS OF THE FIRST,

SECOND AND ELEVENTH CIRCUITS,

UNLIKE THE ESTABLISHED

DECISIONS OF THE DISTRICT OF

COLUMBIA AND SIXTH CIRCUITS,

INTERPRET THE TERM “ADDITION”

INCORRECTLY.

The transfers or movement of natural, untreated

water is not an “addition” of pollutants under the Clean

Water Act. In holding that the release of natural, untreated

water is governed by the Clean Water Act’s permitting

requirements as set forth in 33 U.S.C. §§ 1311(a) and 1342,

the Miccosukee court, as well as the First and Second

Circuits, departed from the longstanding interpretation of

the term “addition” adopted by District of Columbia and

Sixth Circuits in the 1980s. No case law prior to 1996

supports the proposition that the mere diversion or transfer

of untreated water, from one water body to another, is, in

and of itself, an “addition” of pollutants requiring a Clean

Water Act permit. These prior Clean Water Act cases all

acid Gass cece Gite 0 maese Grenten of Sow Sem ene Sety

to another is necessary to constitute an “addition”

pollutants must be “added” or introduced ot the point

source itself.

In Gorsuch, 693 F.2d at 164, the District of

Columbia Circuit Court addressed whether dam-induced

water quality changes are “addition{s] that tigger the

NPDES permit requirement.” The Court agreed with EPA

that they were not, because a pollutant was not physically

introduced “into the water from the outside world.” /d. at

175. Once a pollutant already exists in navigable water,

transferring that water from one body of navigable water to

24

another does not “add” the pollutant. Similarly, in

Consumers Power, the Sixth Circuit held that the release of

fish and fish parts from a hydroelectric plant downstream

from the source of the intake water did not constitute an

“addition” because the plant simply moved those pollutants

already in the water. Other courts have recognized that an

addition does not occur where pollution is merely passed

“from one body of navigable water to another.”"° See, e.g.,

Committee to Save Mokelumne River v. East Bay Municipal

Utility Dist., 13 F.3d 305, 308 (9" Cir. 1993), cert. denied

sub nom. Members of Cal. Reg’l Water Quality Control

Board v. Comm. to Save Mokelumne River, 513 U.S. 873

(1994).

In contrast, the Eleventh Circuit held in Miccosukee

that the South Florida Water Management District needed a

NPDES permit to move water over a levee for flood control

and water supply purposes. This “mere diversion in the

flow of waters” is not the type of activity that Congress

intended to cover in the NPDES program. See United

States v. Law, 979 F.2d 977, 979 (4 Cir. 1992) (“Where

‘pollutants’ exist[{] in the waters of the United States before

contact with these facilities, the mere diversion in the flow

of the waters [does] not constitute ‘additions’ of pollutants

to the water”). The Eleventh Circuit followed the Second

Circuit decision in Catskill Mountains, concerning the

releases of untreated water from New York City’s

Shandaken Tunnel, and the First Circuit decision in Dubois

'° This is consistent with the language of the statute, which refers

to the addition of a pollutant to navigable “waters” rather than to

navigable “water.” 33 U.S.C. § 1362(12). The use of the

collective term “waters” suggests that an “addition” requiring a

permit would be an addition to the system of navigable waters as

a whole, rather than the incidental transfer of pollutants from one

body of water to another.

25

v. US. Dep't of Agric., a case involving a private

company’s diverting water from a pond and two other

sources to create snow for skiing, and then returning the

water to the pond. 280 F.3d at 1369, n.7.""

'' Subsequent to the Eleventh Circuit decision in Miccosukee, the

Ninth Circuit held that the release of groundwater pumped

during the process of mining into surface waters required a

NPDES permit. Northern Plains Resource Council v. Fidelity

Exploration and Development Co., 325 F.3d 1155 (9" Cir.

2003). Dubois and Northern Plains Resource Council are

distinguishable from Miccosukee and Catskill Mountains.

Amici represent cities and other public entities engaged in

water supply, flood control, and other water management

activities. In contrast to the activities of the defendants in

Miccosukee and Catskill Mountains, as well as those of other

amici, Dubois defendant Loon Mountain Recreation Corporation

was processing the diverted water through snowmaking

equipment and Northern Plains defendant Fidelity Exploration

and Development Company was extracting groundwater in

The First Circuit found it significant in Dubois that the water

was “commercially exploited” between the time of its intake into

the snowmaking equipment and the time it was released. 102

F.3d at 1297. The commercial exploitation meant that water was

removed from the waters of the United States, and then was

released into the waters of the United States after it was

processed in the snowmaking equipment. /d.

The underlying water discharge in Northern Plains is even

more distinct from the transfers at issue in Miccosukee and

Catskill Mountains. In determining that groundwater was a

“pollutant” in Northern Plains, the Ninth Circuit emphasized

that, because defendant was engaged in commercial activity, the

groundwater qualified as “industrial waste.” 325 F.3d at 1161.

26

The Eleventh Circuit (and the First and Second

Circuits before it) departed from the well-reasoned

principle, established in Gorsuch and Consumers Power,

that more than a mere diversion of flow is necessary to

constitute an “addition” under the Clean Water Act. The

First, Second, and Eleventh Circuits’ decision to extend the

reach of the NPDES program was irrational and contrary to

the language and purpose of the Act.

THE HOLDINGS OF GORSUCH AND

CONSUMERS POWER ARE NOT

BASED ON UNDUE DEFERENCE TO

USEPA.

In its attempt to reconcile Gorsuch and Consumers

Power with its decision in this case, the Eleventh Circuit

noted that the District of Columbia and Sixth Circuits in

those earlier cases may have accorded EPA’s interpretation

of “addition” undue deference, since they were decided

under the standard of deference established in Chevron

U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S.

837 (1984). 280 F.3d at 1368, n.5. The Eleventh Circuit

relied upon Christensen v. Harris County, 529 U.S. 576

(2000) for the proposition that EPA’s interpretation is

entitled to only a limited degree of deference, rather than

great deference, because its interpretation was not subjected

to the rigors of notice and comment rulemaking.

Distinguishing between governmental water management

activities and commercial exploitation of water is consistent with

the goals and policy of the Clean Water Act. 33 U.S.C.

§§ 1251(b) and (g).

27

Although in Gorsuch, the District of Columbia

Circuit Court of Appeals stated that the EPA interpretation

was entitled to “great deference” (Gorsuch, 693 F.2d at

170), the decision itself demonstrates that the court did not

simply defer to EPA. Rather, it contains a detailed analysis

of the specific language of the Clean Water Act and its

legislative history, as well as an evaluation of policy,

weighing the interests of preserving the integrity of the

waters of the United States against the interests of states in

water management. Instead of giving undue deference to

the EPA interpretation, the Gorsuch court labored to ensure

that it evaluated the competing interests of the Clean Water

Act against local water management issues. Thus, Gorsuch

is consistent with the Christensen standard of deference

because the court gave deference to the EPA position, but

only to the extent that it was persuaded that EPA’s position

was consistent with its analysis of the language, legislative

history, and policy behind the Clean Water Act.

Because the Gorsuch court did not simply defer to

the EPA interpretation of the Clean Water Act, Christensen

does not support_the Eleventh Circuit’s departure from the

principle that the mere transfer of untreated water that

naturally contains pollutants is not regulated by the Clean

Water Act. Similarly, in Consumers Power, while it

discussed EPA’s position in light of the then-applicable

Chevron standard, the Sixth Circuit relied on a detailed

analysis of congressional intent in reaching its decision that

transfers of water from a dam used as a hydroelectric

facility were not “additions” under the Clean Water Act.

862 F.2d at 586-88.

In contrast to the District of Columbia and Sixth

Circuit Courts of Appeals, which considered several factors

in addition to the EPA interpretation, the Eleventh Circuit

did not conduct such a detailed analysis. Rather, it used

28

Christensen to support its departure from the long line of

cases interpreting the Clean Water Act, without any

consideration of the legislative history or weighing of

interests.'? For the reasons discussed above, amici urge the

'2 The Second and Eleventh Circuits assumed that confining

water in a dam or reservoir, and then releasing that water, is

fundamentally different from diverting water so that it flows

from one body into another. In Catskill Mountains, the Second

Circuit distinguished Gorsuch and Consumers Power on the

theory that in those situations, unlike the discharges from New

York City’s Shandaken Tunnel, “the water from which the

discharges came [in those cases] is the same as that to which

they go.” 273 F.3d at 492. Similarly, in Miccosukee, the

Eleventh Circuit found this distinction between inter-basin and

intra-basin transfers significant: “When a point source changes

the natural flow of a body of water which contains pollutants and

causes that water to flow into another distinct body of navigable

water into which it would not have otherwise flowed, that point

source is the cause-in-fact of the discharge of pollutants.” 280

F.3d at 1368-69. There is no language in the Clean Water Act,

however, that suggests that the question of whether a transfer of

untreated water requires a NPDES permit turns on whether the

transfer of water is within the same basin or between separate

basins.

Deciding whether the NPDES program applies based on the

distinction between inter- and intra-basin transfers, rather than

on whether pollutants are in fact being introduced to the nation’s

waters, reflects a fundamental misunderstanding of the Clean

Water Act. The Second Circuit concluded that confining water

in a dam or reservoir, and then releasing that water, is so

fundamentally different from diverting water so that it flows

from one body into another that the latter requires a permit while

the former does not. To illustrate this point, the Second Circuit

described the dam situation as analogous to lifting soup with a

ladle from a pot and then returning the ladleful to the same pot,

Catskill Mountains, 273 F.3d at 492. That is, the Second Circuit

implicitly suggested that an inter-basin transfer would

a

29

Court to recognize the validity of the Sixth and District of

Columbia Circuits’ analyses of the Clean Water Act

NPDES requirements and to reject the contrary conclusions

of the Eleventh, First, and Second Circuits.

necessarily involve tainting a different pot. But while waters

from different sources may have different constituents, or

constituents in different concentrations, so may water above and

below an impoundment. The natural constituents of untreated

water do not trigger the permit provisions of the Clean Water

Act. The fundamental purpose of the NPDES provisions is to

ensure that new pollutants, such as those from wastewater

treatment plants or industrial facilities, cannot be introduced to

the nation’s waters without a permit.

30

CONCLUSION

For all the foregoing reasons, amici respectfully

urge the Court to reverse the decision of the Court of

Appeals for the Eleventh Circuit to avoid serious negative

consequences for the many public agencies and authorities

nationwide involved in water management for water supply

and flood control and related public purposes.

Respectfully submitted,

MICHAEL A. CARDOZO

Corporation Counsel of the

City of New York

Attorney for Amicus Curiae

The City of New York

100 Church Street

New York, New York 10007

(212) 788-1585

LEONARD J. KOERNER,*

SUSAN E. AMRON,

HILARY MELTZER,

WILLIAM S. PLACHE,

of Counsel.

*Counsel of Record

31

OTHER AMICI

ROBERT J. SANER General Counsel for Amici

Association of Metropolitan Water Agencies and

National Association of Flood and Stormwater

Management Agencies

Powers, Pyles, Sutter & Verville, P.C.

1875 Eye Street N.W.

Washington, D.C. 20006

(202) 466-6550

KENNETH A. RUBIN

Counsel for .

American Water Works Association

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 739-5140

ALEXANDRA DAPOLITO DUNN

General Counsel

Association of Metropolitan Sewerage Agencies

1816 Jefferson Place, NW

Washington, DC 20036

(202) 533-1803