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

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## Record

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

## Text

} 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

-—_—-~

“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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A30. Public record. Not legal advice.