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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A29

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 957

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A29. Public record. Not legal advice.