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

} Supreme Court, U.S.

‘ FILED

2 NOV 12 2003

No. : 02-626 ene RAR ti

OFFICE OF 7 HE ¢ LERK

; In the

Supreme Court of the Anited States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

| Ve

MICCOSUKEE TRIBE OF INDIANS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE TROUT UNLIMITED INC.,

ATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED,

INC., THEODORE GORDON FLYFISHERS, INC., CATSKILL-

DELAWARE NATURAL WATER ALLIANCE, INC.,

DERATED SPORTSMEN’S CLUBS OF ULSTER COUNTY,

INC., RIVERKEEPER, INC., INSUPPORT OF RESPONDENTS

KARL S. COPLAN, Esq.,*

PACE ENVIRONMENTAL LITIGATION CLINIC

Attorney for Amicus Curiae

78 N. Broadway

White Plains, New York 10603

(914) 422-4343

. | of Record

November 12, 2003 Seager et Many

{Additional Counsel Listed on Inside Cover]

‘DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024

1-800-531-2028

I RFST AVANABIF COPY) __,

LEON SZEPTYCKI

GENERAL COUNSEL

Trout Unlimited

1500 Wilson Boulevard - Suite 310

Arlington, VA 22209

(434) 984-4919

MELINDA KASSEN

DIRECTOR, COLORADO WATER PROJECT

Trout Unlimited

1320 Pearl Street - #320

Boulder, CO 80302

(303) 440-2937

_~

a

i

QUESTION PRESENTED

Whether the transfer of water already containing pollutants

resulting from human activities, from one water body to

another water body not containing those pollutants, in

violation of State-established water quality standards,

constitutes an "addition" of pollutants requiring a National

Pollutant Discharge Elimination System (NPDES) permit

under the federal Clean Water Act, 33 U.S.C. §§ 1301,

1342?

——

> -_-o- orc

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .............ccccceeeceeeeeeeeee.

TABLE OF AUTHORITIES. ................cccce0eeeeeeeee- V

INTERESTS OF AMICI CURIAE...............000000e0000 1

SUMMARY OF ARGUMENT..............0.ccc0eeee0eeeeee 3

Le SPE Tena ee 5

L. TRANSFERS OF POLLUTED WATER THAT IS

MOVED FROM ONE WATER BODY AND THEN

DISCHARGED INTO A SEPARATE WATER

BODY MEET THE CLEAN WATER ACT’S

DEFINITION OF “DISCHARGE OF A

POLLUTANT” FROM A “POINT SOURCE.”

A. The Transfer of Polluted Water From One

Water Body and its Discharge into a Separate

Water Body by Means of a Point Source

Meets the Plain Meaning of the CWA § 301

Prohibition Against the Unpermitted

“Addition” of a “Pollutant” from a “Point

Source” to “Navigable

EIT seciiectsdiniinigustpinianiaiadisiiaianataieiiaduldn 5

Il.

ill

The Statutory Purpose, Legislative History

and Structure of the Clean Water Act

Compel a Conclusion that the Transfer of

Polluted Water From One Body of Water and

its Addition Into a Separate Body of Water Is

a Discharge of a Pollutant from a Point

National Wildlife Federation v. Gorsuch

and National Wildlife Federation v.

Consumer's Power Dealt Solely with”

Movement within a Water Body Segment,

and Gave Inappropriate Deference to an

Informal EPA Interpretation............... 11

A HOLDING THAT DISCHARGES OF

POLLUTED WATER INTO SPECIFIC WATER

BODIES DOES NOT REQUIRE A NPDES

PERMIT IF THAT WATER IS TRANSPORTED

FROM A SEPARATE WATER BODY WILL

RESULT IN THE SEVERE IMPAIRMENT OF

WATER BODIES RECEIVING SUCH

I biintiinssnepwedensassasenssnsecedousecs 13

A.

If Point Source Discharges of

Polluted Water Transferred

From Separate Water Bodies Are Exempted

From the CWA’s Permit Requirement,

Achieving Water Quality Standards in Some

Water Bodies Receiving Such Discharges

Will Become

BI ctinddcncspssicatsinntniinamnemenens 13

Il.

iV

B. The Catskill Mountains Case Exemplifies

The Need to Require Permits for Point

Source Discharges of Polluted Waters in

Order to Achieve Water Quality

ie ibininctnpincnnneninihinisinanniimenant 15

od A Proposed Transfer of Colorado River

Water Further Illustrates the Extent to

Which Transfers of Polluted Water

Damage Water Quality..................... 18

THE ELEVENTH CIRCUIT’S OPINION IN

MICCOSUKEE WILL ALLOW APPROPRIATE

WATER QUALITY REGULATION WITHOUT

INFRINGING ON STATE’S POWERS TO

FED Cg cccenininedisanissasicesscens 21

A. Clean Water Act Section 101(g) Presumes

Legitimate Regulation of Water

B. The Clean Water Act Requires State Water

Allocation System to Accommodate

Legitimate Water Quality

SEITE icthiiustnanasadiincondimedseuddunantiieiel 23

el Congress Never Intended to Preclude

Regulation of Water Rights for Water

Ee 25

SD ibcccscscesncccnccsensesenesseseosneess 28

TABLE OF AUTHORITIES

Cases Page

Alameda Water & Sanitation Dist. v. Reilly,

930 F.Supp. 486 (D. Colo. 1996)................ 26

Catskill Mountains Chapter of Trout Unlimited

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

Sk Se eee 16, 17

Catskill Mountains Chapter of Trout Unlimited

v. City of New York, 273 F.3d 481 (2d Cir.

Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984)................ 1]

Christensen v. Harris County, 529 U.S. 576 (2000) ..... 13

City of Thornton v. Bijou Irrigation Co., 926 P.2d 1

SID SI oc adiisegatninbbignieninnimnineunines 23

Connecticut Light & Power Co. v. Fed. Power

Comm'n, 324 U.S. 515 (1945)... .. 0c ccc cece 24

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

102 F.3d 1273 (1st Cir. 1996).................005. 11

EPA vy. California ex rel. State Water Res.

Control Bd., 426 U.S. 200 (1976)..............645 14

Miccosukee Tribe of Indians v. South Florida

Water Management District, 280 F.3d

er

ee

See CRO es AO ce ccccenscscnenissent ave 1, 10

N. Plains Res. Council v. Fid. Exploration and

Dev. Co., 325 F.3d 1155 (9th Cir. 2003)........... 7

Nat'l Wildlife Fed’n v. Gorsuch,

693 F.2d 156 (D.C. Circ. 1982)............... passim

Nat'l Wildlife Fed’n v. Consumers Power,

862 F.2d 580 (6th Cir. 1988)...................08 11

PUD No. 1 v. Washington Dep't of

Ecology, 511 U.S. 700 (1994)..............4. passim

Riverside Irrigation Dist. v. Andrews,

Fe Fee See SOP Ce sccsvnccccnccescccees 25, 25

United States v. Akers, 785 F.2d 814

SPE, Tiiciceshicnesssessttonamemmcnanmeuemnaneaniaill 24

Weinberger v. Romero-Barcelo, 456 U.S. 305

IEE i nsccnnesdanienneneneidemeseisessmeanniandiane: 24

Statutes and Regulations Page

Federal Statutes

Rules of the Supreme Court of the United States, 28 U.S.C.

ee iccciscesadnsiniesensisdatuceianenaiiiaain l

Clean Water Act, 33 U.S.C. § 1251(a)................ 4, 5,8

Clean Water Act, 33 U.S.C. § 1251(a)(2)............ 14, 17

Vil

Clean Water Act, 33 U.S.C. § 1251(g)...... 4, 21, 22, 23

Clean Water Act, 33 U.S.C. § USED ..ncccccccccccccescosess 10

Clean Water Act, 33 U.S.C § 1311(a)................... 3,5

Clean Water Act, 33 U.S.C. § 1312Z......cccccccccceees 10, 14

Clean Water Act, 33, U.S.C. § 1313............... 3, 10, 14

Clean Water Act, 33 U.S.C. § 1313(d)(4)................ 10

Clean Water Act, 33 U.S.C. § 1313(e)..............e0see 14

Clean Water Act, 33 U.S.C. § 1315..............cccceecees 14

Clean Water Act, 33 U.S.C. § 1315(b)............... 0.0 18

Clean .. £. BS: Lt Coll | See »

Coe Tee PAGE, Bo WI. © Beir cccccccccccescecescscess 5

Clean Water Act, 33 U.S.C. § 1344(a)..................... 9

Clean Water Act, 33 U.S.C. § 1344(f)(2)(F)............... 12

Clean Water Act, 33 U.S.C. § 1362(6)................. 5, 6,9

Clean Water Act, 33 U.S.C. § 1362(7)................06. 3,5

Clean Water Act, 33 U.S.C. § 1362(12)............... 3, 5,8

Clean Water Act, 33 U.S.C. § 1362(14)............... 5, 6, 7

Safe Drinking Water Act, 42 U.S.C. § 300(f)............ 17

Vill

Federal Regulations

a ee Ce i ctcdcsrcnticccccsscscicscceveies 10

FG le 6 BF Oe eit vecesncccsesceceecacesecen 18

State Regulations

5 COLO. CODE REGS. § 1002-31.16, Table 1: Physical and

Biological Parameters (2001)..............6.. 008 19

5 COLO. CODE REGS. § 1002-39.2 (2001)...............004 19

N.Y. COMP. CODES R. & REGS. TIT. 6, § 703.2

EE siblareninasintevencentiepiuenitnndioninanseiouiouitundieta 17

Other Authorities

Brief Amici Curiae of the States of Colorado and New

Re ene re ee heen mES 21, 25, 27

Brief Amici Curiae of City of New York, et al........... 17

Brief Amici Curiae of the National Water Resources

pS UE Rs oe cM 21, 26

Brief for the United States as Amicus Curiae

Supporting Petstiomed............0cccseecseecceees 11, 20

Clean Water Act, 3 Leg. Hist. 532

(Senate Debate, Dec. 15,1977)................44. 26

ix

Colorado Water Conservation Board Power Point

Presentation, Colorado River return Project

Facilities, available at:

http:/cwcb.state.co.us?SecB/Open%20House

%20Exhibits%20show _files/frame.htm (slides

Colorado Water Conservation Board (CWCB), Scope of

Work for a Study of the Colorado River Return

Project (CRRP) at 2, available at

http//www.cwcb.state.co.us/SecB/CRRS

_Final _Seope. ait visited November 9,

H.R. REP. NO. 92-911, at 76-77 (1972)........c.ssscccccsesees 9

THE HISTORY OF ULSTER COUNTY 368-69

(Alphonso T. Clearwater ed.,

We Pee GIO Pic necdkdccsiescconcsccdinn 15

Nearby Spots Where Skilled Fishermen Find Trout,

km FS renee 16

National Water Quality Inventory Report to Congress, 19

available at: EPA Web Site----, (last visited:

Ne iis SE cnniciticsctineidnnesescmateseonsinnn 20

Petitioner’s Brief, South Florida Water Management

District v. Miccosukee Tribe of Indians,

2003 WL 22137015

CE iitcciceniiodnitinebimisednes 12, 21

R.M. Crowfoot et. al., USGS, National Water Quality

Assessment Program, Water Resources Data,

Colorado, Water Year 2002 Vol. 2 Colorado

IRE Irena oe emer erm 19, 20

S.B. 03-110 § 15, 64th Colo. Gen. Assem. Reg. Sess.,

CT ee ies akan 19

U.S. EPA, 2000 NATIONAL WATER QUALITY

INVENTORY REPORT at ES-3 (2002), available at

http://www.epa.gov/305b/2000report/

execsum.pdf (last visited November 9,

USGS National Water Quality Assessment Data Upper

Colorado River Basin, Station # 09163500

Colorado River near the Colorado-Utah State

line, http://waterdata.usgs.gov/co/nwis (last visited

gg ESE 20

U.S.G.S. — N.A.W.Q.A. Water Quality in the Upper

Colorado River Basin, Major Findings, available

at:http://water.usgs.gov/pubs/circ/circ 1214/major

_ findings2.htm (last visited November 4, 2003)

(USGS Upper Colorado River Basin

PR incisicensenecsicihnicdecideabatinianniedadtiiaipaieansisaintearsinciibias 20

Where To Go For Trout, N.Y. Times,

Ds I cla 16

123 Cong. Rec. 39, 212 (1977), 1977 Leg. Hist. 532.... 26

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“ditt

l

INTERESTS OF AMICI CURIAE

Amici curiae submit this brief in support of

respondents Miccosukee Tribe of Indians, et al., and ask the

Court to affirm Miccosukee Tribe of Indians v. South Florida

Water Management District, 280 F.3d 1364 (11th Cir.

2002).'

Amici include organizations of recreational anglers as

well as local and national environmental protection groups,

all of whom have a direct interest in safeguarding the quality

of water in the United States. Among these amici are

organizations whose members have had their ability to fish

and otherwise enjoy specific natural rivers impaired by the

transfer of polluted waters from one water body to another.

The transfers of waters containing pollutants from

one water body to another threaten the quality of rivers and

their fisheries throughout the United States. The Eleventh

Circuit Court of Appeals decision should be affirmed

because it is consistent with both the unambiguous language

and the statutory purposes of i. e Clean Water Act (“CWA”).

Amicus Trout Unlimited (TU) is a not-for-profit

organization whose mission is to preserve, restore and

protect North America’s trout and salmon fisheries and their

watersheds. TU has 135,000 members in the United States

organized into more than 450 local chapters. TU members

and chapters around the country work for improved fish

habitat and water quality, including implementation of 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

Clean Water Act, in hundreds of watersheds across the

country. One of TU’s chapters is the Catskill Mountains

Chapter (““CMCTU”), which is dedicated to conserving,

protecting, and restoring the fisheries of the Catskills region,

including the Esopus Creek, which was the subject the

Second Circuit’s decision in Catskill Mountains Chapter of

Trout Unlimited v. City of New York, 273 F.3d 481 (2d Cir.

2001) (Catskill Mountains). In addition, Trout Unlimited

operates the Western Water Project in five intermountain

west states. Its mission is to work primarily in state level

water allocation and water quality processes to ensure

healthy flows for trout fisheries.

Theodore Gordon Flyfishers, Inc., (TGF), The

Catskill-Delaware Natural Water Alliance (C-DNWA), and

Federated Sportsmen’s Clubs of Ulster County, Inc., (FSC)

are each regional organizations dedicated at least in part to

conserving, preserving, and protecting the fisheries of New

York’s Catskill Mountains region. Riverkeeper, Inc., is a

not-for-profit organization dedicated to the protection of the

ecological, economic, aesthetic and recreation qualities of

the Hudson River, its tributaries and watersheds.

CMCTU, TGF, C-DNWA, FSC, and Riverkeeper are

the plaintiffs in Catskill Mountains. In that case, the Second

Circuit held that the discharge of mud and silt through a

water supply tunnel constitutes the discharge of a pollutant

from a point source and therefore requires a permit under

section 402 of the Clean Water Act. See Catskill Mountains

v. City of New York. The Catskill Mountains plaintiffs

subsequently prevailed at trial and established that New

York City had discharged pollutants without a permit,

ruining the Esopus Creek as a recreational trout fishery.

3

SUMMARY OF ARGUMENT

The plain language of the CWA supports the

Eleventh Circuit’s decision and compels affirming this case.

The relevant language of the CWA prohibits the “addition”

of a “pollutant” from a “point source” to “waters of the

United States” without a permit. 33 U.S.C. §§ 1311(a),

1362(7), (12). Transporting a pollutant from one body of

water and then discharging it through a point source into a

separate body of water meets this definition squarely. The

CWA does not qualify the permit requirement based on

where the pollutant came from, nor does it create an

exception to the permit requirement for transfers of polluted

water from one water body to another. Indeed, the other two

Circuit Courts of Appeals that have addressed this issue

reached the same result as the Eleventh Circuit in this case.

Both the structure of the CWA and its declared

national goal to restore and preserve the “integrity” of the

nation’s waters support affirming the Eleventh Circuit’s

holding that transferring and discharging polluted water falls

within the National Pollutant Discharge Elimination System

(NPDES) program. The paramount goal of the CWA is “to

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). One

of the primary means of achieving this goal is the

implementation of water quality standards by each of the

states under CWA section 303. 33 USC. § 1313.

Successful implementation, primarily by the states, of the

NPDES permit program has been the primary successful

method of moving towards achieving water quality

standards. Reversing the Eleventh Circuit’s decision in this

case would allow water diversion facilities, including ski

snowmaking systems, industrial cooling systems, and water

supply systems, to discharge potentially highly polluted

water into unpolluted waters, all without any effective

4

regulation under the CWA. This will result in the violation

of water quality standards in numerous water bodies around

the country, while at the same time eliminating the states’

primary tool for correcting water quality standards

violations. The destruction of the recreational trout fishery

on Esopus Creek in New York’s Catskill Mountains — in

violation of the water quality standards for turbidity

established by the State of New York -- illustrates the need

to enforce water quality standards at these inter-basin point

source discharges, as do other examples across the country.

Section 101(g) of the Clean Water Act, 33 U.S.C. §

1251(g), which preserves to the States the authority to

allocate water quantity and water rights, does not preclude

the regulation of water quality through the NPDES permit

program. This Court has previously upheld the primacy of

the CWA’s water quality regulations over the reservation of

water allocation authority in PUD No. | v. Washington Dep't

of Ecology, 511 U.S. 700 (1994). CWA regulation of water

quality is perfectly consistent with State authority to allocate

water quantities.

-—-—- ——_—— re

5

ARGUMENT

I

TRANSFERS OF POLLUTED WATER THAT IS

MOVED FROM ONE WATER BODY AND THEN

DISCHARGED INTO A SEPARATE WATER BODY

MEET THE CLEAN WATER ACT’S DEFINITION OF

“DISCHARGE OF A POLLUTANT” FROM A “POINT

SOURCE.”

A. The Transfer of Polluted Water From One Water

Body and its Discharge into a Separate Water

Body by Means of a Point Source Meets the Plain

Meaning of the CWA § 301 Prohibition Against

the Unpermitted “Addition” of a “Pollutant” from

a “Point Source” to “Navigable Waters.”

The bedrock objective of the Clean Water Act is “to

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); see

generally PUD No.1, supra. The primary means Congress

included in the CWA to achieve that goal is a requirement

that discharges of pollutants from point sources have

permits. See 33 U.S.C. §§ 1311(a), 1342.

The phrase “discharge of a pollutant” is defined in

the Act as “any addition of any pollutant to navigable waters

from any point source.” See 33 U.S.C. § 1362(12). The Act

further elaborates the definitions of “pollutant,” “navigable

waters,” and “point source.” See 33 U.S.C. §§ 1362(6), (7),

(14). The definition of a “pollutant” specifically includes

“dredged spoil,” as well as “rock” and “sand.” 33 U.S.C. §

1362(6). A “point source” subject to regulation “means any

discernible, confined and discrete conveyance,” and its

definition specifically includes a “tunnel” as well as a

“channel” or “conduit.” 33 U.S.C. § 1362(14).

6

The language of these provisions covers the transfer

of pollutants from one water body and their discharge into a

separate water body through a pipe, channel, or tunnel. In

the case before the Court, the S-9 pumping station causes an

“addition” of phosphorous to water conservation area 3A by

means of a “discernible, confined, and discrete conveyance,”

namely a pipe. In the Catskill Mountains case, a

“discernible, confined, and discrete conveyance,” namely the

Shandaken Tunnel, caused an “addition” of sediments and

turbidity to the clear waters of the Esopus Creek. See 273 F.

3d at 493-94. In both situations, the point source adds to a

water body a pollutant that was not there before, and that

would not be there but for the point source.

Nowhere does the Clean Water Act exempt from the

NPDES permit requirement the transfer of polluted waters to

a different water body segment. That they are in fact

covered by the program is demonstrated by language in a

number of provisions in the statute. For example, the

definition of “point source” in section 502 of the CWA

includes tunnels, channels, and conduits — all water transfer

structures, 33 U.S.C. § 1362(14).

Further, the statute does exclude certain specific

water transfers from the NPDES permit requirement, without

providing a blanket exception for all water transfers. For

example, section 502 of the Act explicitly excludes from the

category “discharge of a pollutant” from a point source two

types of water transfer. First, "[t]he term ‘pollutant’ ... does

not mean ... (B) water ... injected into a well to facilitate

production of oil or gas, or water derived in association with

oil or gas production and disposed of in a well ... if [the]

State determines that such injection or disposal will not

result in the degradation of ground or surface water

resources." 33 U.S.C. 1362(6). Second, “[t]he term ‘point

source’ ... does not include agricultural stormwater

7

discharges and return flows from irrigated agriculture." 33

U.S.C. § 1362(14). Both of these exempted activities

involve transferring water in circumstances in which they are

likely to contain pollutants, and then discharging the

potentially polluted water somewhere other than where it

was withdrawn.

Since Congress specifically excluded these water

transfers from the definition of a "point source,” other water

transfers must be presumed to be "point sources." This

would be consistent with the result reached recently by the

Ninth Circuit, where that court required a permit for the

discharge of polluted ground water through a point source to

a surface stream. N. Plains Res. Council v. Fid. Exploration

and Dev. Co., 325 F.3d 1155 (9th Cir. 2003); cert. den. 72

U.S.L.W. 3280 (Oct. 20, 2003). A contrary interpretation in

Miccosukee would render the exclusions of certain water

transfers in section 502 superfluous.

8

B. The Statutory Purpose, Legislative History and

Structure of the Clean Water Act Compel a

Conclusion that the Transfer of Polluted Water

from One Body of Water and its Addition into a

Separate Body of Water is a Discharge of a

Pollutant from a Point Source.

Petitioner argues that the addition of phosphorus into

Water Conservation Area 3A does not constitute an

“addition of any pollutant [in]to navigable waters” 33

U.S.C. § 1362(12), because the phosphorus is already

present in another navigable water, the C-11 basin. As

explained above, this argument has no support in the plain

language of the statute. It also is contrary to the purposes of

the CWA, its legislative history, and its structure.

The core objective of the Clean Water Act is “to

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a)

(emphasis added). The “integrity” language was critical io

the Act’s framers. As stated by the House Committee on

Public Works in a report accompanying the House Bill on

the Act:

The word "integrity" as used is intended to

convey a concept that refers to a condition in

which the natural structure and function of

ecosystems is maintained.... Although man is

a "part of nature” and a product of evolution,

"natural" is generally defined as that condition

in existence before the activities of man

invoked perturbations which prevented the

system from returning to its original state of

equilibrium.... Any change induced by man

that overtaxes the ability of nature to restore

9

conditions to “natural” or "original" is an

unacceptable perturbation.

H. R. Rep. No, 92-911, at 76-77 (1972).

The transfer of water containing pollutants from one

water body into another, unpolluted water body where that

polluted water would never naturally flow destroys the

“integrity” of the receiving water body. This is exactly the

sort of “perturbation” of the natural order that the legislative

history declared “unacceptable.”

The wording of other relevant portions of the CWA

shows Congress’s intent to regulate the discharge of

pollutants even though those pollutants may already be

present in waters of the United States. Section 502 of the

CWA includes “dredged spoil” in the definition of a

“pollutant” subject to regulation, 33 U.S.C. § 1362(6), and

section 404 of the CWA requires a permit for the deposit of

“dredged . . . material” into navigable waters. 33 U.S.C. §

1344(a). Dredged spoil and dredged materials are materials

typically removed from one body of water and deposited in

another, or elsewhere in the same, body of water. Such

pollutants are already present in navigable waters, yet their

reintroduction is regulated by the CWA.

Finally, petitioner’s argument that the addition of a

pollutant to one body of water from another does not meet

the definition of “discharge of a pollutant” is inconsistent

with the provisions of the CWA related to water quality -

based permitting and water quality standards. Those

provisions likewise compel the conclusion that the CWA

regulates the introduction of pollutants by point sources into

individual water bodies.

10

The CWA provides for NPDES permit standards

based both on what is technologically achievable for

particular point sources (technology based permitting) and

the permit limitations needed to achieve water quality

standards. See 33 U.S.C. § 1311. The statute’s mechanisms

for implementing water quality based permitting take place

on a_ water-body-by-water-body basis, in a fashion

completely inconsistent with the petitioner’s argument.

Section 303 requires states to establish water quality

standards for each water body in the state. 33 U.S.C. § 1313;

see also 40 C.F.R. § 131.20 (2003). These water quality

standards then form the basis for water quality - based permit

limitations for point sources discharging into those

individual bodies of water. See 33 U.S.C. § 1312, 40 C.F.R.

§ 131.20 (2003). Further, section 303(d) requires each state

to identify each water body segment in the state that fails to

meet water quality standards, and, among other things, to

revise NPDES permits so that their effluent limitations are

designed to achieve the water quality standards for those

specific bodies of water. 33 U.S.C. § 1313(d)(4).

The water quality standards and standard-based

permitting require evaluating individual bodies of water and

setting permit limitations for discharges into individual

bodies of water. This structure fully supports the Eleventh

Circuit’s conclusion that “addition” of a pollutant means

addition from the outside world, where “outside world”

includes “any place outside the particular water body to

which pollutants are introduced.” See Miccosukee Tribe,

280 F.3d at 1368 n.5 (quoting Catskill Mountains, 273 F.3d

at 491) (emphasis added).

CWA section 303 not only requires the vast array of

water quality standards that states have adopted for their

thousands of water body segments, but its mandate requires

this Court to reject the notion that “’the waters of the United

* . “2

wae

11

States’ should be viewed as a whole for purposes of NPDES

permitting requirements” proffered in the Solicitor’s amicus

brief in support of petitioner. Brief for the United States as

Amicus Curiae supporting Petitioner, p. 19. To suggest that

a polluted water body’s water is not a pollutant when

discharged into a pristine water body because they are part of

“a whole” makes a mockery of the states’ efforts to adopt

different classifications and criteria on a segment-by-

segment basis.

c. National Wildlife Federation v. Gorsuch and

National Wildlife Federation v. Consumer’s Power

Dealt Solely with Movement of Water Within a

Water Body Segment, and Gave Inappropriate

Deference to an Informal EPA Interpretation

Petitioner and its supporting amici arcue that the

decisions of the First, Second, and Eleventh Circuits in

Dubois v. United States Dep't of Agriculture, 102 F.3d 1273,

1296-99 (Ist Cir. 1996), cert. denieu, 521 U.S. 1119 (1997),

Catskill Mountains, and Miccosukee, respectively depart

from the “established” precedents of Nat'l Wildlife Fed'n v.

Gorsuch, 693 F.2d 156 (D.C. Circ. 1982), and Na’l Wildlife

Fed'n v. Consumers Power, 862 F.2d 580 (6th Cir. 1988).

This argument ignores the important factual distinction

between Gorsuch and the water transfers involved in the

more recent cases, as well as the fact that Gorsuch was

decided based on Chevron-style deference to which EPA

regulatory documents would not be entitled under current

law. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842-843 (1984).

Gorsuch considered whether dams through which

water passed from upstream to downstream constituted point

12

sources under the CWA.” Consumers Power addressed the

same issue with respect to a pump storage station that

pumped water uphill and then returned it to the same water

body. The Second Circuit in Catskill Mountains held that

these two cases did not apply to the transfer of polluted water

from one water body into a completely different one.

Catskill Mountains, 273 F. 3d at 491-93.

While acknowledging the Gorsuch gloss on the

statutory term of “addition” to require an addition “from the

outside world,” the Second Circuit drew the inescapable

conclusion that polluted water transferred miles under a

mountain range is indeed an addition from the world outside

the receiving waters:

The present case, however, strains past the

breaking point the assumption of "sameness"

made by the Gorsuch and Consumers Power

courts. Here, water is artificially diverted

from its natural course and travels several

miles from the Reservoir through Shandaken

Tunnel to Esopus Creek, a body of water

utterly unrelated in any relevant sense to the

? The D.C. Circuit held in Gorsuch that the discharge from the dam did

not constitute an addition of a pollutant. See Gorsuch, 693 F.2d 156. As

a result, dam discharges of the type reviewed in Gorsuch are today

considered nonpoint sources of pollution. Petitioners argue that CWA §

304(f)(2)(F), 33 U.S.C. § 1344(f)(2)(F) should govern the transfer of

pollutants through a point source to a different water body. (Petitioner’s

Brief [hereinafter “Pet’r Br.”] at 29-30, 33, South Florida Water Mgmt.

Dist. V. Miccosukee Tribe of Indians, 2003 WL 22137015 (2003 (No. 02-

626) This Court should reject this interpretation as a gross expansion of

the reach of CWA § 304 (f)(2)(F), 33 U.S.C. § 1344(f)(2)(F), which

properly reaches those fact situations analogous to the ones at issue in

Gorsuch or Consumers Power, but not situations involving the point-

source discharge of pollutants from one water to another, such as

presented in the instant case or Catskill Mountains.

~--

13

Schoharie Reservoir and its watershed. No

one can reasonably argue that the water in the

Reservoir and the Esopus are in any sense the

"same," such that "addition" of one to the

other is a logical impossibility.

Id. at 492.

Moreover, the Gorsuch decision was based almost

exclusively on deference to informal EPA interpretations of

the term “addition.” See Gorsuch, 693 F.2d at 167-74.

Those types of informal agency interpretations are no longer

entitled to Chevron deference under this Court’s decision in

Christensen v. Harris County, 529 U.S. 576 (2000).

Gorsuch and Consumer’s Power not only presented critically

different facts, they are also of questionable precedential

value under current law.

A HOLDING THAT DISCHARGES OF POLLUTED

WATER INTO SPECIFIC WATER BODIES DOES

NOT REQUIRE AN NPDES PERMIT IF THAT

WATER IS TRANSPORTED FROM A SEPARATE

WATER BODY WILL RESULT IN THE SEVERE

IMPAIRMENT OF WATER BODIES RECEIVING

SUCH DISCHARGES.

A. If Point Source Discharges of Polluted Water

Transferred from Separate Water Bodies are

Exempted from the CWA’s Permit Requirement,

Achieving Water Quality Standards in Some

Water Bodies Receiving Such Discharges will

Become Impossible.

14

As discussed above, in order to implement its

statutory goal of “water quality which provides for the

protection and propagation of fish, shellfish, and wildlife and

provides for recreation in and on the water,” 33 U.S.C. §

1251(a)(2), the CWA establishes a system of water quality-

based point source permitting and directs states to establish

water quality standards for all water bodies. See 33 U.S.C. §

1313; see generally PUD No. 1 v. Washington Dep't of

Ecology, 511 U.S. 700, 704-705 (1994). Clean Water Act

section 302 specifically provides for incorporation of more

stringent water quality-based effluent limitations when

uniform, technology based limitations are insufficient to

achieve water quality standards. 33 U.S.C. § 1312.

As noted by this Court in EPA v. California ex rel.

State Water Res. Control Bd., 426 U.S. 200, 205n.12 (1976),

“numerous point sources, despite individual compliance with

[technology based] effluent limitations, may be further

regulated to prevent water quality from falling below

acceptable levels.” The CWA also sets up a number of

planning measures and programs designed to allow each

state to focus its efforts on water bodies that do not achieve

water quality standards. See, e.g., 33 U.S.C. § 1313(e)

Continuing planning process [for achieving water quality];

33 U.S.C. § 1315 (state reports on water quality).

The position argued by petitioners and their

supporting amici in this case would, in effect, nullify these

programs for waters receiving polluted water from separate

water bodies. The total maximum daily load allocations set

out in section 303(d) are specifically designed to operate

through individual point source permits on individual water

bodies. If transfers of polluted waters between distinct water

bodies are immune from NPDES permitting, as proposed by

the petitioners, then there will always be some portion of

pollution in the receiving water body that cannot be

- ~~ mm me eS -

15

addressed through either point source or non-point source

programs, since the water transfer is clearly a point source

but would be exempt from regulation as such. Under the

best of circumstances, the state and other polluters will have

to incur considerable additional expense to further reduce

other sources of the pollutant in the watershed. In many

cases, this may require permitted point sources which have

already invested in pollution controls to reconfigure or

replace those controls to address new water quality

conditions created by an inter-basin transfer of pollutants the

state has neither planned for nor approved. In situations

where the unpermitted point source discharge by itself

causes a water quality standard violation (as in the Catskill

Mountains case discussed below), then there will be no

means of addressing the violation other than attempted

voluntary measures, which have proven ineffective.

B. The Catskill Mountains Case Exemplifies the Need

to Require Permits for Point Source Discharges of

Polluted Waters in Order to Achieve Water

Quality Standards.

In Catskill Mountains, the Second Circuit applied the

plain meaning of the CWA § 301 prohibition to require

regulation of New York City’s transfer of muddy, silt laden

water into a pristine trout stream. See Catskill Mountains

Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.

3d 481 (2001). The factual circumstances of Catskill

Mountains illustrate the necessity of including these transfers

in the CWA permitting scheme to achieve water quality

standards.

The Esopus Creek is a world class trout stream that

has attracted anglers to New York’s Catskill Mountains since

the nineteenth century. See, eg., THE HISTORY OF

ULSTER COUNTY 368-69 (Alphonso T. Clearwater ed.,

16

W.J. Van Deusen) (1907); Nearby Spots Where Skilled

Fishermen Find Trout, N.Y. Times, Apr. 7, 1912 at 11;

Where To Go For Trout, N.Y. Times, June 1, 1874 at 8.

Above the Shandaken Tunnel, the Esopus Creek is naturally

clearer than the water reaching the creek through the

Shandaken Tunnel. See Catskill Mountains, 273 F.3d at 485.

New York City operates the Shandaken Tunnel as

part of its water supply system. The eighteen mile long

tunnel traverses a mountain range and diverts water from the

Schoharie Reservoir to the Esopus Creek. The Esopus Creek

and the Schoharie Reservoir are two different and distinct

water bodies located in two different and distinct watersheds.

Water from the Schoharie Reservoir naturally flows north

into the Mohawk River, whereas the Esopus Creek naturally

flows southeast into the Ashgkan Reservoir and the Hudson

River. /d.

The waters of the Schoharie Reservoir are polluted

with fine red clay particles, which cause visible turbidity.

This pollution is not purely “natural,” but is caused in

significant part by human activities in the Schoharie

watershed. See Catskill Mountains Chapter of Trout

Unlimited v. City of New York, 244 F.Supp.2d 41, 46-47

(N.D.N.Y. 2003).

The discharge of this muddy water transforms the

Esopus Creek from a clear mountain trout stream to a muddy

torrent. As established at the trial of the Catskill Mountains

case, the turbid discharge to the Esopus Creek has made dry

fly fishing difficult, because the trout cannot see cast flies,

and dangerous, because the fishermen cannot see the bottom

of the creek. /d. at 46. This turbid discharge violates New

York’s water quality standards, which preclude any turbidity

“that will cause a substantial visible contrast to natural

17

conditions.” N.Y. COMP. CODES R. & REGS. TIT. 6, § 703.2

(1999).

New York City’s transfer of polluted water through

the Shandaken Tunnel thus precludes the achievement of the

water quality standards needed to protect the trout fishery

and recreational uses of the Esopus Creek. The only hope of

achieving this standard is for the New York State

Department of Environmental Conservation to develop a

permit with appropriate turbidity limits for the Shandaken

Tunnel discharge — exactly the relief ordered by the District

Court in the Catskill Mountains case. 244 F.Supp. 2d at 55-

56.

New York City, in its amicus brief in support of

petitioners, argues that the water quality violations caused by

its inter-basin transfers should be addressed by controls on

non-point sources, or under the Safe Drinking Water Act, 42

U.S.C. § 300(f), rather than permitting these transfers as

point source discharges under CWA § 301. Brief Amici

Curiae of City of New York, et al. at 15-21. New York City

ignores the fact that neither the non-point source

management programs contemplated by 33 U.S.C. § 1329,

nor the Safe Drinking Water Act addresses the water quality

standards violations caused by inter-basin transfers.

The non-point source controls invoked by New York

City simply have not been effective to restore the nation’s

waters as sought by the Clean Water Act. The CWA

declares the “interim” goal of assuring water quality

sufficient to protect recreational uses (such as trout fishing

on the Esopus Creek) no later than 1983. 33 U.S.C. §

1251(a)(2). Yet 20 years later, despite the non-point source

control provisions of 33 U.S.C. § 1329, water quality

violations persist on the Esopus Creek as well as in the

Water Conservation Area 3A of the Everglades; in each case

18

due to discharges from clearly identifiable point sources.

Indeed, EPA, in its latest report under CWA § 305(b),

identifies siltation and nutrients (such as phosphorous) as the

top causes of impairment of the nation’s waters, and

identifies uncontrolled nonpoint source pollution as the

“leading source” of impairment of the nation’s waters. See

U.S. EPA, 2000 NATIONAL WATER QUALITY INVENTORY

REPORT at ES-3 (2002) available at

http://www.epa.gov/305b/2000report/execsum.pdf (last

visited November 9, 2003); 33 U.S.C. § 1315(b). Clearly,

non-point source management practices are no substitute for

regulation of these transfers as point sources.

Similarly, the Safe Drinking Water Act provides no

possible solution to these violations of water quality

standards. The SDWA imposes water quality standards at

the point of entry to a closed water supply distribution

system — the first point of disinfection — and makes no effort

to control the water quality upstream. 40 C.F.R. §

141.71(a)(2) (2003). Regulation of surface water quality for

recreational use and fisheries protection is the ambit of the

Clean Water Act, not the SDWA, and it is the Clean Water

Act’s regulation of point sources that applies to these cases

by its terms and by its comprehensive scheme for

achievement of water quality standards.

on A Proposed Transfer of Colorado River Water

Further Illustrates the Extent to Which Transfers

of Polluted Water Damage Water Quality.

Were this Court to reverse the 11" Circuit’s holding

in Miccosukee, states would lose the ability to protect some

of their cleanest waters from potentially devastating

discharges of polluted waters through diversion structures.

For example, in 2003, the Colorado General Assembly

appropriated $500,000 to the Colorado Water Conservation

19

Board (CWCB) to do a reconnaissance study for the

Colorado River Return Project,” a 250,000 to 750,000 acre-

foot water diversion from the 15-mile reach of the Colorado

River between its confluence with the Gunnison River and

the Utah border. The diverted water would be piped to the

Continental Divide and then discharged, some back into the

headwaters of the Colorado River, but most to the

headwaters of the South Platte or Arkansas Rivers to run via

gravity down to Colorado’s population centers.’

The project would discharge levels of salinity and

selenium too high, and water too warm for the receiving

headwaters’ cold water fisheries. The discharges would

cause violations of the water quality standards for these

headwaters streams, and would damage their ecological

health. The project’s source segment is warm water while

the receiving headwaters are cold. Under Colorado water

quality standards, cold water fisheries must maintain

temperatures below 20°C, whereas warm water fisheries can

sustain temperatures no higher than 30°C. 5 CoLo. CopE

REGS. § 1002-31.16, Table 1: Physical and Biological

Parameters (2001). The State’s Salinity Regulation

explains, “Salinity ... occurs at low concentrations in the

headwaters ... however, salinity concentrations increase

downstream.” 5 COLO. CoDE REGS. § 1002-39.2 (2001).

Measured levels of salinity in the source segment average

600-700 milligrams per liter. The healthy cold water

fisheries of Colorado’s headwaters, where salinity levels

* $.B. 03-110 § 15, 64th Colo. Gen. Assem. Reg. Sess., (Colo. 2003).

* Colorado Water Conservation Board (CWCB), Scope of Work for a

Study of the Colorado River Return Project (CRRP) at 2. (available ai

http//www.cwcb.state.co.us/SecB/CRRS Final Scope.pdf) (last visited

November 9, 2003).

* USGS National Water Quality Assessment Data Upper Colorado River

Basin, Station # 09163500 Colorado River near the Colorado-Utah State

line, available at http.//waterdata.usgs.gov/co/nwis (last visited

November 9, 2003)

20

average 50 mg/l, cannot survive at such levels.° Finally, data

compiled by the U.S. Geological Survey in October 2002

revealed that concentrations of another pollutant, selenium,

measure approximately 5.8 micrograms per liter, exceeding

the source segment’s water quality standard.

Concentrations between 4.6 and 5.0 micrograms per liter

would be toxic to cold water fish.*

Because of the enormously detrimental implications

of putting large quantities of saline, selentum-laced warm

waters into healthy coldwater fisheries, the project currently

proposes treatment to address the disparities in quality and

temperature between the source and receiving waters.”

However, if this Court were to hold that the discharge of

polluted water diverted from one water segment to another

does not require an NPDES permit, Colorado would no

longer have to require a discharge permit for the Colorado

River Return Project, resulting in devastation to whichever

headwaters streams would be forced to receive the warm,

polluted Colorado River water.

® See, U.S.G.S. - N.A.W.Q.A. Water Quality in the Upper Colorado

River Basin, Major Findings, available at:

http://water.usgs.gov/pubs/circ/circ 1214/major_findings2.htm (last

visited November 4, 2003) (USGS Upper Colorado River Basin

Findings).

” R.M. Crowfoot et. al., USGS, National Water Quality Assessment

Program, Water Resources Data, Colorado, Water Year 2002 Vol. 2

Colorado River Basin. ~

* USGS Upper Colorado River Basin Findings, supra.

* Colorado Water Conservation Board Power Point Presentation,

Colorado River return Project Facilities, available at:

http:/cweb. state.co.us?SecB/Open%20House%20Exhibits%20show files

/frame.htm (slides 3,6,7).

a

wel.

21

iil

THE ELEVENTH CIRCUIT’S OPINION IN MICCOSUKEE WILL

ALLOW APPROPRIATE WATER QUALITY REGULATION

WITHOUT INFRINGING ON STATES’ POWERS TO ALLOCATE

WATER.

In the proceedings below, no party argued the

primacy of state water allocation systems before the 11"

Circuit, and that court’s opinion is silent on the issue.

However, before this Court, petitioner argues under section

101(g) of the CWA that the 11" Circuit’s decision impinges

upon water allocation issues reserved solely to the states.

Pet'r Br. at 34-35; 33 U.S.C. § 1251(g). Several of the amici

who filed in support of petitioner have gone further,

suggesting that a ruling to uphold Miccosukee would weaken

the Clean Water Act’s reservation of state power over water

allocation and wreak havoc on the exercise of water rights.

Brief Amici Curiae of the States of Colorado and New

Mexico (CO-NM Brief) at 20, Brief Amici Curiae of the

National Water Resources Association, et al. (NWRA Brief)

at 17.

This Court must reject petitioner’s and its amicis’

water rights arguments as contrary both to the Clean Water

Act and the reality of current state implementation. First, the

Clean Water Act does not exempt the exercise of water

rights from permitting for water pollution control objectives;

in fact, this Court has expressly affirmed a state’s ability to

condition the exercise of water rights for water pollution

control purposes. PUD No. | v. Washington Dep't of

Ecology, 511 U.S. 700, 701-702 (1994). Second, water

rights transfers are in fact already widely subject to CWA

permitting without significant adverse effect, albeit pursuant

to CWA §404, governing discharges of dredged and fill

material.

22

A. Clean Water Act Section 101(g) Presumes

Legitimate Regulation of Water Quality.

As noted, the CWA seeks its ultimate goals of

achieving acceptable water quality throughout the nation

through a mix of related programs, including the

requirements: (1) to adopt water quality standards protective

of all waters of the United States, (2) to implement

mandatory permits for discharges of pollutants from point

sources, and (3) to address diffuse sources of pollution

through non-point programs, which may be voluntary. The

Act assigns primary responsibility for implementation of this

program to the states, with periodic oversight from EPA.

Notwithstanding the breadth of the Act, in 1977

amendments to the CWA, Congress declared its policy that

neither state authority “to allocate quantities of water’ nor

state-established “rights to quantities of water” would be

“superceded, abrogated or impaired” by virtue of the CWA.

33 U.S.C. § 1251(g). Even here, however, Congress

recognized the connection between water quality and water

quantity, adding into this declaration that: “Federal agencies

shall cooperate with State and local agencies to develop

comprehensive solutions to prevent, reduce and eliminate

pollution in concert with programs for managing water

resources.” /d. (emphasis added). Thus, Congress coupled

its admonition against interference with state authority over

water rights with a directive to develop solutions that respect

existing water allocation systems while simultaneously

preventing and reducing pollution of the nation’s waters.

Requiring permits for transferring polluted water in

no way impairs state authority to allocate water or infringes

on water rights themselves. A party holding a right in water

that happens to be polluted still holds that right; the permit

requirement simply means that if the party wishes to exercise

Py

23

that right in a specific way — by moving the water to another

water body and discharging it through a point source — the

party will have to obtain a permit relating to the quality (but

not the quantity) of the water being moved.

Nor does state water allocation law provide an

adequate substitute to ensure protection of water quality

standards. For example, in Colorado, other water rights

holders may be protected from the discharge of water so

polluted as to make it impossible for these water rights

holders to apply the water to their beneficial uses. City of

Thornton v. Bijou Irrigation Co., 926 P.2d 1, 91 (Colo.

1996). However, this principle will not protect instream

recreation and fisheries uses because, with very limited

exceptions, Colorado does not allow instream recreation or

fishery water rights. Jd. at 93-94. Moreover, state water

quality law is subordinate to state water law. /d. at 90.

B. The Clean Water Act Requires State Water

Allocation Systems to Accommodate Legitimate

Water Quality Controls.

In PUD No. | of Jefferson County v. Washington

Dept. of Ecology, 511 U.S. 700, this Court rejected the

assertion that water quality control pursuant to the Clean

Water Act cannot affect some aspects of the manner in

which a water right is exercised. The Court found the

distinction between water quality and water quantity control

to be “artificial ... since a sufficient lowering of quantity

could destroy all of a river's designated uses, and since the

Act recognizes that reduced stream flow can constitute water

pollution.” PUD No. / at 701. Further, this Court stated that

§ 101(g) of the Act “preserve[s] the authority of each State to

allocate water quantity as between users, [but does] not limit

tt ope of water pollution controls that may be imposed on

users who have obtained, pursuant to state law, a water

24

allocation." Jd. at 720. Rather, this Court noted that permit

or license conditions imposed through Clean Water Act

authorities "merely determine[] the nature of the use to

which that proprietary nght may be put under the Clean

Water Act." PUD No. /, at 721.

Lower courts have uniformly come to the same

conclusion — that §101(g) does not limit water restrictions on

the exercise of water rights, provided that the restriction

serves a legitimate purpose under the Clean Water Act and

does not abrogate the underlying water right or water

allocation system. For example, in United States v. Akers,

785 F.2d 814 (9th Cir. 1986), the 9th Circuit held that any

incidental effect of a Clean Water Act permit requirement on

a farmer's rights’ to state-allocated water was justified

because protection of wetlands providing seasonal refuge for

numerous species, including endangered species, was the

type of "legitimate purpose" for which the Clean Water Act

was intended. Akers at 818 (quoting Weinberger v. Romero-

Barcelo, 456 U.S. 305, 315 (1982)).

The court further determined that the statute as a

whole makes clear that, "where both the state's interest in

allocating water and the federal government's interest in

protecting the environment are implicated, Congress

intended an accommodation. Such accommodations are best

reached in the individual permitting process." Akers, 785

F.2d at 821.

Similarly, in Riverside Irrigation Dist. v. Andrews,

the 10th Circuit defined § 101(g) merely as a "general policy

statement" which could not nullify an express permitting

provision even if the provision seemed inconsistent with the

broadly stated purpose of the policy statement articulated in

101(g). Riverside, 758 F.2d 508, 513 (1985) (quoting

Connecticut Light & Power Co. v. Fed. Power Comm'n, 324

_

25

U.S. 515, 527 (1945)). While in Riverside, the permit at

issue was pursuant to CWA § 404, the logic applies equally

to the section 402 permitting at issue in this case.

Even in Nat'l Wildlife Fed’n v. Gorsuch, 693 F. 2d

156 (1982), a case petitioners cite to support their arguments,

the D.C. Circuit interpreted section 101 (g) not to foreclose

regulators from imposing pollution dontrol requirements on

the exercise of water rights. The court stated that section

101(g) indicated that Congress did not want to interfere “any

more than necessary” with state water management. Gorsuch

693 F.2d at 178. Thus, to the extent that the D.C. Circuit

determined that the Clean Water Act required no NPDES

permit for a dam that blocks water in a river channel, stores

it and then releases it back downstream, the Court did not

find that Clean Water Act regulation could not reach the

exercise of a water right, but rather that there was no

addition of a pollutant in that factual situation. /d. at 179,

183.

c. Congress Never Intended To Preclude

Regulation of Water Rights For Water Quality

Protection.

The legislative history of section 101(g) provides

further support for Congress’ intent not to preclude

regulation of transfers of polluted water to achieve water

pollution control objectives. Senator Wallop, who sponsored

'° The States of Colorado and New Mexico argue in their amicus brief in

support of petitioners that upholding the | 1 Circuit’s opinion in

Miccosukee would lead to violations of inter-state water compacts. Brief

of Colorado & New Mexico, pp. 20-22. The court in Riverside disagreed

with a similar argument made there, noting that the requirement for a

permit “has not denied Colorado its right to water use under the South

Platte River Compact.” 758 F.2d at 513-14.

26

the amendment adding section 101(g), stated that it was not

intended to "take precedence over legitimate and necessary

water quality considerations." 123 Cong. Rec. 39, 212

(1977), 1977 Leg. Hist. 532. Senator Wallop explained that

the requirements of section 402 and 404 permits; for

instance, may incidentally affect individual water rights; that

it was not the purpose of the amendment to prohibit those

incidental effects so long as those effects were prompted by

legitimate and necessary water quality considerations; and

that he did not intend section 101(g) to interfere with the

legitimate water pollution control purposes of the Clean

Water Act. 3 Leg. Hist. 532 (Senate Debate, Dec. 15, 1977).

In addition, to the extent that petitioner and some of

its amici suggest that Congress intended for the Clean Water

Act never to affect the exercise of a water right, they simply

overstate their case. See, e.g., NWRA Brief at 14. This is so

because diversion and transfer facilities constructed to allow

entities to exercise their water rights are in fact widely

regulated pursuant to CWA § 404, which requires entities

discharging dredged or fill material into the nation’s waters

to obtain a permit. 33 U.S.C. § 1344. As was the case in

Riverside, supra, most such activities operate pursuant to

general permits which require no more than notification.

However, most larger diversion and transfer facilities do

require individual permits. Yet, it is rare indeed that this

permit program interferes with the exercise of the water

right. See, Alameda Water & Sanitation Dist. v. Reilly, 930

F.Supp. 486, 493 (D. Colo. 1996).

Just as the 404 permit program has not stopped water

diversions and transfers, nor will broader application of the

NPDES program. Notwithstanding amici’s claims that water

projects across the West will be shut down, see, e.g., CO-NM

Brief at 3-4, the requirements of the CWA are unlikely to

produce such dire results. This is so not only because most

ee ee Se

27

produce such dire results. This is so not only because most

water transfers that would require permits would operate

pursuant to general NPDES permits, just as do hundreds of

thousands of stormwater discharges operating under NPDES

permits, but also because, as amici note, most water transfers

do not result in violations of water quality standards.

Therefore, even where an activity might need an individual

NPDES permit, most such activities’ permit conditions will

not require treatment to meet water quality standards. Only

where the discharge of pollutants causes violations of a

receiving stream’s water quality standards will there be any

treatment required. And, in those relatively limited, but

important situations, the CWA will require treatment to

protect the integrity of the nation’s waters.

28

CONCLUSION

For the foregoing reasons, amici respectfully urge the

Court to affirm the decision of the Eleventh Circuit Court of

Appeals applying the Clean Water Act’s point source

permitting requirements to the transfer of polluted water

between distinct water bodies.

Dated: November 12, 2003 Respectfully Submitted,

KARL S. COPLAN, ESQ.*

Attorney for Amicus Curiae

Pace Environmental Clinic

78 N. Broadway

White Plains, NY 10603

(914) 422-4343

* Counsel of Record

LEON SZEPTYCKI

General Counsel

Trout Unlimited

1500 Wilson Blvd., Suite 310

Arlington, VA 22209

(434) 984-4919

MELINDA KASSEN

Director, Colorado Water Project

Trout Unlimited

1320 Pearl St., #320

Boulder, CO 80302

(303) 440-2937