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

crm rt us. |

biti bD

No. 02-626 | NOV 13 2003 |

|

‘

veapet

Jn The

Supreme Court of the Anited States

°

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

Vv.

MICCOSUKEE TRIBE OF INDIANS, ET AL.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

¢

AMICUS BRIEF OF THE ASSOCIATION

OF STATE WETLAND MANAGERS AND

THE TROPICAL AUDUBON SOCIETY

IN SUPPORT OF RESPONDENTS

¢

PATRICK A. PARENTEAU*

JULIA LEMENSE HUFF

ENVIRONMENTAL AND

NATURAL RESOURCES

LAW CLINIC

VERMONT LAW SCHOOL

Chelsea Street

South Royalton, VT 05068

(802) 831-1000

*Counsel of Record

Attorney for Amici Curiae

= ——— —— —— eee

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

$4 fe +

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ...................cccsseeceeeeeees 1

SUMMARY OF ARGUMENT.................:scseceeseeeeeeeees 2

TET sicibusiisuiticiintietmintesnisnunictinmmnemenmnmnacnnetes 3

I. REDUCTION OF PHOSPHORUS IN THE

II.

EVERGLADES IS CRITICAL TO RESTOR-

en

A. The Everglades Is a Unique, Interna-

tionally Important Ecosystem .................

1.

The Everglades Is an Extremely Sen-

sitive Oligotrophic System .................

ND Oe

SE

Development Has Destroyed Half of

the Everglades and Now Threatens

eee

B. Phosphorus Is Killing the Everglades

and Endangering Water Supplies............

C. Petitioner’s Stormwater Collection Sys-

tem Is a Significant Source of Phospho-

THE ELEVENTH CIRCUIT CORRECTLY

CONCLUDED THAT S-9 REQUIRES A

NPDES PERMIT UNDER § 301(a) OF THE

i, Be Oe re ID scccccccccacccesccccoscsodecese

B. C-11 and WCA-3 Are Physically Separate

BE icitnitsndennssnmmescensmemecouneniacsens

10

11

14

li

TABLE OF CONTENTS -— Continued

Page

1. Petitioner’s Unitary Waters Theory

Does Not Hold Water.............:.cseeseeeee 18

2. Florida Manages C-11 and WCA-3A as

Separate and Distinct Waterbodies......... 19

3. S-9 Pumps Stormwater Uphill from

Co11 into WOACBA ...cccccccsccccscccccscscccsse 20

C. S-9 Adds Pollutants to Waters of the

Cette BbeOe® ..coccocccccscecncsscesseonesnenennennans 20

1. Plain Meaning of Addition.................. 21

2. Petitioner’s Argument Distorts the

Plain Meaning of Addition.................. 21

3. The Solicitor General Has Taken In-

consistent Positions on the “Addition”

eene....cccoocccocssesooesesnsnssneensenennneaeana 22

Ill. ALTERNATIVELY, S-9 SHOULD BE REGU-

LATED AS A STORMWATER DISCHARGE

UNDER 402(p)(2)(E)........:ccccsseseeeeeeeeeeeeeseneeees 24

IV. REGULATION OF S-9 IS COMPATIBLE

WITH THE TMDL PROGRAM ..........00000000e08 26

CONCLUSION ...cccccsccsccccccesccccccccocncscoscnsseconsosssssssonss 29

DN og) Ge App. 1

ili

TABLE OF AUTHORITIES

CASES

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715

a 23

Borden Ranch P’ship v. United States Army Corps

of Eng’rs, 261 F.3d 810 (9th Cir. 2001), aff’d, 537

Concerned Area Residents for the Env’t v. South-

view Farm, 34 F.3d 114 (2d Cir. 1994)..................... 17, 18

Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.

Mackey v. Lanier Collection Agency & Serv., Inc.,

ER 22

Miccosukee Tribe of Indians v. South Fla. Water

Mgmt. Dist., 280 F.3d 1364 (11th Cir. 2002) .................. 3

Morales v. Trans World Airlines, Inc., 504 U.S. 374

National Wildlife Fed’n v. Consumers Power Co.,

862 F.2d 580 (6th Cir. 1988)...............cccccccceceeeeeeeeeees 17, 18

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 -

EEE 17

Northern Plains Res. Council v. Fidelity Explora-

tion & Prod. Co., 325 F.3d 1155 (9th Cir. 2003),

cert. denied, 72 U.S.L.W. 3148, 72 U.S.L.W. 3277,

72 U.S.L.W. 3280 (U.S. Oct. 20, 2003) (No. 03-

South Fla. Water Mgmt. Dist. v. Miccosukee Tribe

of Indians, 280 F.3d 1364 (S.D. Fla. 2002) ...............00+. 18

iv

TABLE OF AUTHORITIES -— Continued

United States v. Deaton, 209 F.3d 331 (4th Cir.

2000), aff’d on reh’g, 332 F.3d 698 (4th Cir. 2003)........ 22

United States v. M-C.C. of Fla., Inc., 772 F.2d 1501

(11th Cir. 1985), vacated on other grounds, 481

U.S. 1034 (1987), readopted in relevant part, 848

F.2d 1133 (11th Cir. 1968) ....................cccccccccrersssesssessesees 22

United States v. Riverside Bayview Homes, Inc.,

GBS UB. BBE (RGGI ncccccccccosccsccscscsssesssesssssessscsvscssssseseses 5,6

STATUTES AND REGULATIONS

$3 U.S.C. $ 125 1(a) (BOOB) ......2.....0...ccccccccescrccccsvcscesccseosees 17

EEE 17

SB U.B.C. § IBIDEN IMA) ..cccececcccccscccscsccccccccscocccccsesssssssosors 15

SB UB.C. § IBID DD) nnceccccccccccreccecccccccccescosccsccsscssescossss 15

OU 24

33 U.S.C. § 1342(pX2MA)-(D).........ccccccceeeeereeceeeeeereeeeneneeees 25

BB UG.C. § IDB NIE) ..cccccccccccccecccccccoscsccsccccccssssssscssssees 25

GB UDG. 6 BBG IED ccccccccsccsensnsescnscsscscsssccssssesccsssessssssssenens 17

yy 17, 21

40 CBR. § 1BB.B (BBGG) .nccccccccecccscccccscccccsccsscsssescsssssssscsesses 18

40 CBR. $ 1BB.BONM ISB). ...ccccececcccecccccccccsscccesccccccsscscsccsssees 24

Plt 8) OD 15

GD OBR, © BBB.BB ccccccccecccccccsescssesccccccscssesssssssssesssssssessscsnees 27

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS

Alden, Peter, et al., National Audubon Society:

Field Guide to Florida (1998) ..............ccccccceeeeeeeeeeeeeeeee 5,8

Brief for the Solicitor General, Borden Ranch v.

Army Corps of Eng’rs, 537 U.S. 99 (2002) (No. 01-

DeAngelis, Donald L., et al., Modeling Ecosystem

Hydroscape, in The Everglades, Florida Bay and

Coral Reefs of the Florida Keys: An Ecosystem

Sourcebook (James W. Porter & Karen G. Porter

in, Se cnnreencnnicennsnennisnsninensvemitnmemeeneennnastapennenss 6

Douglas, Marjory S., The Everglades: River of Grass

eee eee 4

Environmental Protection Agency, South Florida

Ecosystem Assessment Vol. 1 Final Technical

Report Phase I, Monitoring for Adaptive Man-

agement: Implications for Ecosystem Restoration,

available at http://www.epa.gov/region4/sesd/

reports/epa904r98002. html ................cccceeeeeeeeeeeeees 8, 9, 10

Florida Department of Environmental Protection,

1998 303(d) Report, available at http://www.dep.

state. fl.us/water/tmdl/docs/303(d)-2.pdf 303 .....15, 26, 27

vi

TABLE OF AUTHORITIES -— Continued

Fiorida Department of Environmental Protection,

Florida’s Water Quality Assessment 2002 305(b)

Report, available at http://www.dep.state.fl.us/

water/docea/2002_305b.pdf..................ccccssessscesessereees 19, 26

Florida Department of Environmental Protection,

Florida Water Plan: Implementing Watershed

Management (Dec. 2001), available at http://

www.dep.state.fl.us/water/waterpolicy/docs/FWP

_Dec_2001_DO_NOT_EDIT. pdf.................ccccsceeeeseseeeeeees 19

Lodge, Thomas E., The Everglades Handbook:

Understanding the Ecosystem (1994) ............+++0+++: passim

McCormick, Paul V., et al., Effects of Anthropogenic

Phosphorus Inputs on the Everglades, in The Ever-

glades, Florida Bay and Coral Reefs of the Florida

Keys: An Ecosystem Sourcebook (James W. Porter

& Karen G. Porter eds., 2002) ..............00000+ 8,9, 11, 12, 13

Memorandum from Dan Scheidt, Senior Scientist,

South Florida Initiative, to John H. Hankinson,

Jr., Environmental Protection Agency Regional

Administrator (Jan. 19, 2001), available at

http://www.epa.gov/region04/southflorida/miccos

ee RSTRGERO IG cccccccccssseccccsscsssssnesceceresescossetssssseneesecss 7

Memorandum from James R. Elder, Director, Office

of Water Enforcement Permits, Environmental

Protection Agency (Aug. 8, 1990)..............eeeeeeees 25, 26

National Park Service, Everglades National Park:

A Park for the World, at http://www.nps.gov/

National Park Service, Everglades National Park:

A Park In Danger, at http://www.nps.gov/ever/eco

——

Vii

TABLE OF AUTHORITIES - Continued

National Park Service, Everglades National Park:

Park Establishment, at http://www.nps.gov/ever/

I ietnniitniiiiietnenntennteinteinateenmeedl 5, 28

Niering, William A., National Audubon Society

Nature Guides: Wetlands (1998) ..............ccccsscccceeeeeeeeeees 9

Press Release, Environmental Protection Agency,

EPA Approves Tough Phosphorous Limit for

Ramsar Convention on Wetlands, The Annotated

RAMSAR List: United States of America, at

http://www.ramsar.org/profiles_usa.htm .....................+- 6

Report to the Working Group of the South Florida

Ecosystem Restoration Task Force, South Florida

Ecosystem Restoration: Scientific Information

Needs 369 (1996), available at http://everglades.

fiu.edu/taskforce/scineeds/sub9.pdf (last visited

Santaniello, Neil, ‘Glades Element at Center of

Dispute: Life-Giving Phosphorus Carries Dan-

gers, Sun-Sentinel (May 25, 2003) at Al ....................... 13

South Florida Water Management District, 2003

Everglades Consolidated Report (Jan. 1, 2003) ............ 24

South Florida Water Management District, Central

Everglades, available at http://www.sfwmd.gov/

ft) _evg/2_wrp_evg_glades/central.htm!......... 13

see

TABLE OF AUTHORITIES -— Continued

Page

South Florida Water Management District, Eco-

logical Impacts of Drought in the Water Conser-

vation Areas (Apr. 13, 2001), available at

http://www.sfwmd.gov/org/wrp/ wrp_evg/reports/

drought_0401/generalinfo. pdf.................sssseeseeeeeneeeerens 15

Texas Natural Resource Conservation Commission,

What Is A Part Per Billion? at http//www.

tnrcc.state.tx.us/permitting/remed/site/ssdap/jon

esroad/ppb_chart. pdf.............:cssesesseeereceensnensneneeseensensnnes 7

Webster’s Third New International Dictionary

rr 21

Wetlands International, A Directory of Wetlands of

International Importance: Everglades National

Park, at http://www.wetlands.org/RDB/Ramsar_

Dir/USA/USO05D02. htam. ................cccccccssseseeceeresessseeeeeneee 6

United States Geological Survey, An Overview of

the Southern Inland and Coastal System Project

of the U.S. Geological Survey South Florida Eco-

system Program (2000), available at http://time.

United States Geological Survey, Calendar Year

Streamflow Statistics for Florida, available at

http://nwis.waterdata.usgs.gov/fl/nwis/annual/?si

te_no=02232400&agency_cd=UG............cccceseeereeeeeeeeenes 16

1

STATEMENT OF INTEREST

The Association of State Wetland Managers

(“ASWM”) and the Tropical Audubon Society submit this

brief amicus curiae in support of Respondents Miccosukee

Tribe of Indians and Friends of the Everglades, Inc.’

ASWM is a nonprofit federal 501(c\3) membership

organization dedicated to the protection and management

of the Nation’s wetland resources. The goals of the Asso-

ciation include the following: translate wetland science

into fair and reasonable government policies; help states

develop and implement wetland regulatory and manage-

ment programs; improve the coordination of wetland

programs and policies at all levels of government; facili-

tate the integration of wetlands into water resources and

watershed management; and build conservation and

restoration partnerships among states, tribes, local gov-

ernments, not-for-profits, and other interested parties.

The Tropical Audubon Society is a nonprofit conserva-

tion and education organization established in 1947 to

protect the natural world, promote wise stewardship of

natural resources and foster - among members and the

public in general — an understanding and appreciation of

nature and ecological relationships. Many of its members

use and enjoy the Everglades for bird watching and other

nature study oriented recreation.

+

* Counsel for the parties consented to the filing of this brief and

letters reflecting that consent are filed in the clerk’s office. No counsel

for a party in this case authored any part of this brief, and no person

other than amici or their representatives made any monetary contribu-

tion to the preparation or submission of this brief. Sup. Ct. Rule 37.

2

SUMMARY OF ARGUMENT

This case has important implications for the restora-

tion of the Everglades, one of the most unique wetland

resources in the world. Half of the Everglades has already

been destroyed by agricultural and urban development.

The remainder is under assault from a variety of causes,

but phosphorous is the major problem. Phosphorus is

turning the fabled “River of Grass” into a dead zone where

cattails are the “markers on the grave.” Petitioner’s

stormwater management system, including the S-9 Pump

Station (“S-9”) at the center of this dispute, is feeding more

and more phosphorous to an already overstressed ecosys-

tem.

The question presented is whether the Clean Water

Act (“CWA” or the “Act”) requires Petitioner to obtain a

National Pollutant Discharge Elimination System

(“NPDES”) permit to operate S-9. The answer to that

turns on a very narrow question of whether the phospho-

rous that is undeniably being discharged from S-9 meets

the technical definition of an “addition” under the Act.

Plainly, it does.

Contrary to Petitioner’s assertion that phosphorous

simply “passes through” S-9 on its way to the Everglades,

the purpose of S-9 is to force the polluted water to go

where it would not otherwise go. S-9 is part of an elaborate

stormwater and flood control system for Broward County.

S-9 takes massive quantities of stormwater out of the C-11

canal (“C-11”) and pumps it uphill, five to six feet, and into

Water Conservation Area (“WCA”)-3A, a section of the

Everglades. The C-11 Basin and WCA-3A are physically

separate water bodies, that are managed separately by the

State of Florida under its water quality programs. Thus,

3

there is no merit to the “unitary waters” theory advanced

by Petitioner, and unfortunately endorsed by the Solicitor

General. The normal weight that ought to be accorded the

Solicitor’s view is inappropriate here because of the

conflicting positions the United States has taken before

this Court in other cases involving the same question.

Alternatively, S-9 should be regulated as a stormwa-

ter discharge under Section 402(p)(2)(E) of the CWA. That

provision requires a NPDES permit for any stormwater

discharge that is a “significant contributor of pollutants to

the nation’s waters.” The record indisputably establishes

that S-9 does exactly that. This constitutes an alternative

ground for upholding the Eleventh Circuit’s decision in

Miccosukee Tribe of Indians v. South Fla. Water Mgmt. Dist.,

280 F.3d 1364 (11th Cir. 2002), or for remanding the case in

the event the Court reverses on the primary ground.

Finally, and contrary to Petitioner’s “sky is falling”

assertions, regulation of S-9 under the NPDES program

will strengthen, not weaken, the overall restoration effort

for the Everglades. Indeed, requiring all point sources to

reduce phosphorous discharges is exactly the medicine the

Everglades needs to recover.

+

ARGUMENT

I. REDUCTION OF PHOSPHORUS IN THE

EVERGLADES IS CRITICAL TO RESTORING

THE ECOSYSTEM.

The greater Everglades ecosystem (the “Everglades”)

is an international treasure. However, anthropogenic

loading of phosphorus is destroying the Everglades. J.A

165-68. Reducing the amount of phosphorus entering the

4

Everglades is crucial to the success of Everglades restora-

tion programs. See J.A. 165-68. The NPDES program

provides the necessary mechanism to reduce phosphorus

loading in the Everglades.

A. The Everglades Is a Unique, Internation-

ally Important Ecosystem.

Before humans interfered, water in the Everglades

flowed independently of channels, rivers and other con-

veyances. The integrity of the Everglades depends on

“sheet flow” — a wide, shallow flow of water that once

originated near Orlando but now begins south of Lake

Okeechobee. J.A. 178, 190-97. As the sheet flow moves

south toward Florida Bay it creates a vast sawgrass

wetland — the “River of Grass” immortalized by Marjory

Stoneman Douglas — that is home to an overwhelming

variety of habitats, flora and fauna. Marjory Stoneman

Douglas, The Everglades: River of Grass 10 (1947). This is

the only example of a sheet flow ecosystem in the world.

Thomas E. Lodge, The Everglades Handbook: Understand-

ing the Ecosystem 10 (1994).

In 1947, President Harry S. Truman captured the

significance of the Everglades during his dedication of

Everglades National Park (“ENP”):

Here are no lofty peaks seeking the sky, no

mighty glaciers or rushing streams wearing

away any uplifted land. Here is land, tranquil in

its quiet beauty, serving not as a source of water,

but as the last receiver of it. To its natural abun-

dance we owe the spectacular plant and animal

5

life that distinguishes this place from all others

in our country.’

ENP is the only national park in the Western hemi-

sphere designated as an International Biosphere Reserve,

a World Heritage Site, and a Ramsar Wetland of Interna-

tional Importance. J.A. 147 7 14; National Park Service,

Everglades National Park: A Park In Danger, at http://

www.nps.gov/ever/eco/threats2.htm (last visited Nov. 4,

2003). However, the Everglades transcends the boundaries

of ENP and contains ecologically important areas includ-

ing Big Cypress National Preserve, Biscayne Bay National

Park, Arthur R. Marshall Loxahatchee National Wildlife

Refuge, and the Water Conservation Areas. See J.A. 30,

36; Peter Alden et al., National Audubon Society: Field

Guide to Florida 417-31 (1998).

The Everglades, like other wetlands, performs many

beneficial functions. As this Court has recognized, wet-

lands “filter and purify water draining into adjacent bodies

of water [citation omitted] ... slow the flow of surface

runoff into lakes, rivers and streams and thus prevent

flooding and erosion.” United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 134-35 (1985). Water pumped

into WCA-3A mixes with water in the Everglades. This

water recharges the Biscayne Aquifer and municipal wells

that serve South Florida’s burgeoning population. J.A. 59,

109, 111, 117.

* National Park Service, Everglades National Park: Park Estab-

lishment, at http//www.nps.gov/ever/eco/nordeen.htm (last visited Nov.

4, 2003).

6

Wetlands also “serve significant natural biological

functions, including food chain production, general habi-

tat, and nesting, spawning, rearing, and resting sites for

aquatic ... species [citation omitted].” Riverside Bayview,

474 U.S. at 135. ENP alone supports more than 1000

species of seed-bearing plants and 120 tree species. NPS,

Everglades National Park: A Park for the World, at http://

www.nps.gov/ever/presskit/heritage.htm. Over 60 of these

species are endemic. Ramsar Convention on Wetlands, The

Annotated Ramsar List: United States of America, at

http://www.ramsar.org/profiles_usa.htm (last visited Nov.

4, 2003). The ENP is also home to 25 orchid species as well

as a rich variety of amphibians and reptiles. Wetlands

International, A Directory of Wetlands of International

Importance: Everglades National Park, at http://www.

wetlands.org/RDB/Ramsar_Dir/USA/US005D02.htm (last

visited Nov. 4, 2003). Finally, the Everglades harbors at

least 36 endangered or threatened species. See NPS, Park

for the World, supra.

The Everglades is perhaps best known for its diverse

bird population. Scientists have documented 400 naturally

occurring species of birds within the Everglades. Lodge,

supra, at 145. About 60 percent of these birds are migra-

tory. Id. Life in the Everglades is dependent on pristine

water quality. J.A. 165-68. Unfortunately, beginning in

the late 19th century, the demands of southern Florida’s

growing human population compromised much of this

critical habitat. In the past few decades, the numbers of

wading birds nesting in rookeries has declined by 90

percent in the southern Everglades alone. See Donald L.

DeAngelis et al., Modeling Ecosystem and Population

Dynamics on the South Florida Hydroscape 246, in The

Everglades, Florida Bay and Coral Reefs of the Florida

7

Keys: An Ecosystem Sourcebook (James W. Porter & Karen

G. Porter eds., 2002) [hereinafter Everglades Sourcebook].

1. The Everglades Is an Extremely Sensi-

tive Oligotrophic System.

Oligotrophic wetlands are characterized by hydric

soils and water that are nutrient poor and rich in oxygen.

J.A. 165-68. Historically, only a small amount of nutrients

entered the ecosystem through rainfall. Lodge, supra, at

10. The biodiversity of the Everglades depends upon these

nutrient poor conditions. J.A. 165-68. Phosphorus is the

limiting factor on primary productivity (e.g. algal growth).

J.A. 126, 165-68. Background levels of phosphorus in the

pristine Everglades’ are only five or six parts per billion

(ppb).* J.A. 30. As a result, the flora of the Everglades is

* Data taken from over 400 reports determined that a phosphorus

standard of 10 parts per billion (ppb) would not be overly protective or

below the natural background levels of the Everglades. Memorandum

from Dan Scheidt, Senior Scientist, South Florida Initiative, to John H.

Hankinson, Jr., Environmental Protection Agency Regional Adminis-

trator 9 (Jan. 19, 2001), available at http://www.epa.gov/region04/

southflorida/miccosukee/newmemo.pdf (last visited Nov. 4, 2003). EPA

approved the Miccosukee Tribe’s request for 10 ppb as a specific

protective standard for phosphorus in tribal portions of the Everglades.

See Press Release, Environmental Protection Agency, EPA Approves

Tough Phosphorous Limit for Tribal Waters in Everglades, available at

http:www.epa.gov/Region4/oeapages/99press/052699.htm (last visited

Nov. 4, 2003). However, phosphorus concentrations at the S-9 Pump

Station are as high as 20-100 ppb. J.A 45.

* One drop of ink in an Olympic-sized swimming pool is the

equivalent of one part of phosphorus per billion parts of water. Texas

Natural Resource Conservation Commission, What Is A Part Per

Billion? at http//www.tnrcc.state.tx.us/permitting/remed/site/ssdap/

jonesroad/ppb_chart.pdf (last visited Nov. 4, 2003).

8

highly susceptible to the addition of phosphorus, which

changes aquatic productivity. J.A. 165-68. These oligotro-

phic conditions, coupled with the interplay between

topography and hydrology, are crucial to the structure,

function and composition of the Everglades.’ See Lodge,

supra, at 10-16. Everglades habitats, and the biota which

have evolved to fill these respective niches, are unique and

each play an important role within the ecosystem. In

particular, the sawgrass and periphyton communities are

crucial to the ecological integrity of the Everglades.

a. Sawgrass.

Sawgrass comprises “65 to 70% of the total vegetation

cover of the Everglades.” Paul V. McCormick et al., Effects

of Anthropogenic Phosphorus Inputs on the Everglades 91,

in Everglades Sourcebook, supra. It is arguably the most

characteristic flora in the Everglades. Lodge, supra, at 19.

Sawgrass wetlands are sparsely vegetated and open,

attracting a variety of wildlife ranging from invertebrates

to wading birds. See Environmental Protection Agency,

South Florida Ecosystem Assessment Vol. 1 Final Techni-

cal Report Phase I, Monitoring for Adaptive Management:

Implications for Ecosystem Restoration 7-1, available at

http://www.epa.gov/region4/sesd/reports/epa904r98002. html

(last visited Nov. 4, 2003) [hereinafter Ecosystem Assess-

ment]; Lodge, supra, at 35. The openness of sawgrass

wetlands allows for gas exchange with the atmosphere,

* The topography of the Everglades decreases in elevation from 18

feet above sea level at Lake Okeechobee to sea level at the southern

terminus of the Everglades. See Peter Alden et al., National Audubon

Society: Field Guide to Florida 13 (1998).

nee

-_—-

9

promoting well oxygenated waters. Jd. Sawgrass helps

maintain water quality by filtering, diluting and removing

excess nutrients. See William A. Niering, National Audu-

bon Society Nature Guides: Wetlands 32-34 (1998). Saw-

grass also helps purify the water by allowing for sheet flow

movement. These wetland functions are essential for

cleansing and replenishing the Biscayne Aquifer, which

supplies most of the drinking water for southern Florida.

See Report to the Working Group of the South Florida

Ecosystem Restoration Task Force, South Florida Ecosys-

tem Restoration: Scientific Information Needs 369 (1996),

available at http-//eve:glades.fiu.edu/taskforce/scineeds/

sub9.pdf (last visited Nov. 7, 2003) [hereinafter Task

Force). When phosphorus is added to the Everglades,

cattail stands, which thrive in nutrient rich conditions,

multiply quickly and crowd out sawgrass. See J.A. 38-39,

165-68.

b. Periphyton.

Periphyton is an integrated community of benthic

algae that cover plant stems and the soil surface of the

Everglades. McCormick et al., supra, at 139; Lodge, supra,

at 30-33. Periphyton is adapted to oligotrophic conditions

and is used as a biological indicator species due to its

sensitivity to changes in nutrient levels. See Lodge, supra,

at 32-33; McCormick, supra, at 103. “Periphyton produc-

tivity oxygenates the water column” and influences nutri-

ent cycling. Ecosystem Assessment, supra, at 5-2.

Periphyton is also an important link in the complex

Everglades food web. See Lodge, supra, at 31-32.

10

2. Development Has Destroyed Half of

the Everglades and Now Threatens the

Rest.

Since the 1880s, humans have destroyed 50 percent of

the habitats that comprised the historic Everglades. See

Ecosystem Assessment, supra, at 1-1. Prior to human

alteration, virtually all of Florida to the south and south-

east of Orlando was part of the greater Everglades ecosys-

tem. J.A. 178, 190, 197. The historic Everglades extended

over 99 miles in length and incorporated about 4000

square miles. Lodge, supra, at 10.

The integrity of the Everglades was further under-

mined by extensive modifications made under the Central

and South Florida Project (““CSFP”). The CSFP changed

the natural hydropattern — the “depth, timing, duration

and distribution of surface water” in the Everglades.

Ecosystem Assessment, supra, at 1-5. Because of changes

to the hydropattern, the Everglades no longer resembles

the Everglades that existed prior to the years of human

modification. Id.

Today, the Everglades stretches from Lake Okeecho-

bee, south to Florida Bay, west to Big Cypress National

Preserve and east to the Atlantic Ocean. J.A. 170, 178,

197. Most of these surviving remnants of the Everglades

are contained within the boundaries of ENP, Loxahatchee

National Wildlife Refuge and the WCA-2 and WCA-3.

Petitioner manages both WCA-2 and WCA-3. Even at its

reduced size, the Everglades remains one the most exten-

sive freshwater wetland systems in the United States.

Ecosystem Assessment, supra, at 5-1.

me

11

B. Phosphorus Is Killing the Everglades and

Endangering Water Supplies.

Adding phosphorus to the Everglades disrupts the

entire structure and function of the Everglades, including

the system’s ability to purify water and recharge ground-

water. J.A. 59, 165-68. The Biscayne Aquifer, which is

“one of the most permeable aquifers ever investigated and

probably the most permeable water-table aquifer in the

world,” is particularly affected. Task Force, supra, at 369.

“Because of the Biscayne Aquifer’s shallow depth and

permeability, groundwater contamination is a constant

threat... .” See Id. at 382.

The drainage projects also reduce freshwater satura-

tion and allow saltwater to encroach and contaminate the

aquifer. JA. 59, 109, 111; see United States Geologic

Survey, An Overview of the Southern Inland and Coastal

System Project of the U. S. Geological Survey South Flor-

ida Ecosystem Program 1, 2 (2000), available at http://

time.er.usgs.gov/whnew/v2n l/overview/overview.pdf (last

visited Nov. 3, 2003). Therefore, not only has the Ever-

glades purifying capacity been diminished, but the

groundwater is at risk of contamination from saltwater

intrusion. This is only one of many examples of the cascad-

ing effacts of phosphorus introduced by point sources euch

as S-9.

When phosphorus is added to the system, nutrient

cycling is disrupted because periphyton productivity and

microbial respiration are destabilized. J.A. 14, 126-27;

McCormick et al., supra, at 101-103. This imbalance

creates a deficit of dissolved oxygen in the water when

oligotrophic cyanobacteria, blue-green algae and diatoms.

12

J.A. 127; McCormick et al., supra, at 103. This impercepti-

ble change in nutrient cycling rates is the beginning of a

tremendous cascading effect throughout this oligotrophic

ecosystem. It only takes between 10 and 20 ppb of phos-

phorus before periphyton function is disrupted. J.A. 31. As

eutrophic cyanobacteria proliferates, the composition of

the water body becomes dominated by species tolerant of

low dissolved oxygen. Cattails - which thrive in nutrient

enriched, poorly oxygenated waters — replace sawgrass,

which further disrupts nutrient cycling. J.A. 38-39.

Once the cattail stand dominates the area, it

doesn’t add oxygen to the water the way the

rooted aquatic plants and the periphyton and the

sawgrass do. The majority of the cattail dis-

charges oxygen to the atmosphere because the

majority of the plant is above the water. The

stems of those cattail plants are very dense, ...

and they have a tremendous shading effect on

the sunlight that gets down to the water surface

within the stand so that the amount of light

that’s necessary for photosynthesis, if there were

plants and periphyton there to observe that light

to produce oxygen during the photosynthetic cy-

cle, that light’s been reduced significantly. The

cattails also grow very fast, and as they grow,

they shed some of their leaves. That forms a

dense mat of material in the water column, and

that’s being partially decomposed by bacteria.

The bacteria use up what remaining oxygen is in

the water so that most of the time there’s zero for

15, 18, 20 hours a day . . . inside the cattail stand

it’s anaerobic. You won't find any fish there, you

won't find any aquatic bugs that fish feed on, and

it’s a pretty nasty place.

13

Id. (statement of Dr. Timothy Bechtel, Sr. Supervisory

Environmental Scientist, Department of Water Resources

Evaluation, SFWMD). As a result, cattails are referred to

as “markers on the grave of the Everglades.” Neil Santa-

niello, ‘Glades Element at Center of Dispute: Life-Giving

Phosphorus Carries Dangers, Sun-Sentinel, May 25, 2003,

at Al (quoting Dr. Ronald Jones)’, available at LEXIS, US

Newspapers.

Cattails are spreading throughout the Everglades.

Large areas of northeastern WCA-3A and areas north of S-

9 are being invaded by cattails. South Florida Water

Managment District, Central Everglades, at http://www.

sfwmd.gov/org/wrp/wrp_evg/2_wrp_evg_glades/central.html

(last visited Oct. 16, 2003). WCAs show invasion of cattail

stands in areas that used to be strictly sawgrass. J.A. 165-

68. However, there is a delay between the time phospho-

rus enters the system and the appearance of cattails.

The lag time between the onset of phosphorus en-

richment and cattail response can be as long as several

decades. McCormick et al, supra, at 109. By the time the

effects are visible, the damage is done. We are only begin-

ning to see the destruction that will occur due to excessive

amounts of phosphorus in the Everglades. This destruc-

tion is irreversible. J.A. 168.

* Dr. Ronald Jones, of Florida International University, is “a water

quality expert, including water quality in wetland systems (especially

oligotrophic systems, such as the Florida Everglades).” J.A. 164.

14

C. Petitioner’s Stormwater Collection System

Is a Significant Source of Phosphorous.

Petitioner operates an extensive system of canals and

levees that collects runoff from the C-11 Basin in Broward

County. Id. at 7-11. For a map of the C-11 Basin, see App.

1. Through this system of canals, Petitioner controls

stormwater from residential, urban and agricultural

areas. J.A. 109. This system collects and channels massive

quantities of destructive, phosphorus-enriched stormwater

into the Everglades. S-9 discharges this phosphorus laden

stormwater direc ‘y into WCA-3A. J.A. 98.

S-9 and C-11 are located in the C-11 Basin. Pet. Br. at

10. The United States Army Corps of Engineers (“COE”)

created the C-11 Basin, which encompasses 104 square

miles, to “compartmentalize waters for management

purposes.” Jd. The C-11 Basin was once part of the Ever-

glades, but the COE converted it to “dry land” and it is

now highly urbanized and industrialized. Id.

C-11 is an artificially created canal that runs from the

Atlantic Ocean to WCA-3A. Pet. Br. at 10. WCA-3A is the

portion of the Everglades that initially receives the pol-

luted runoff from S-9. Stormwater runoff from the C-11

Basin is collected into C-11. Jd. at 11. The water in C-11

contains higher levels of phosphorus than that which

naturally occur in WCA-3A. Pet. App. 5a. As a result of tne

high levels of phosphorus, the Florida Department of

Environmental Protection (“FDEP”) listed C-11 as a water

quality limited segment on its Section 303(d) list.’ Florida

" The CWA requires states to identify waters that do not meet

applicable water quality standards, and identify the pollutants causing

(Continued on following page)

15

Department of Environmental Protection, 1998 303(d)

Report 32-33, available at http://www.dep.state.fl.us/

water/tmdl/docs/303(d)-2.pdf 303 (last visited Nov. 3,

2003). Petitioner typically maintains the water level in C-

11 between zero and four feet NGVD’. J.A. 71.

WCA-3A is also an artificial waterbody created by the

COE. Pet. Br. at 8. WCA-3A is part of one of “three inter-

connected reservoir areas” that impounds water. Pet. Br.

at 8. Levees L-33 and L-37, also projects of the COE,

separate WCA-3A from, and maintain the water in WCA-

3A at levels higher than, C-11. Pet. Br. at 8-9. Petitioner

maintains the water elevation in WCA-3A at a level

between 9.5 feet and 10.5 feet NGVD, which is at least five

feet higher than the water level in C-11. See SFWMD,

Ecological Impacts of Drought in the Water Conservation

Areas 2 (Apr. 13, 2001), available at http://www.

sfwmd.gov/org/wrp/wrp_evg/reports/drought_0401/general

info.pdf (last visited Nov. 9, 2003). WCA-3A is also listed

as an impaired water on Florida’s Section 303(d) list. 1998

303(d) Report, supra, at 33.

S-9 is an industrial-scale operation that is capable of

moving water at a rate of 2,880 cubic feet per second (cfs).

the water quality threats. 33 U.S.C. § 1313(d1XA)(B). The waters

identified by the states are referred to as water quality limited seg-

ments (“WQLS”), 40 C.F.R. § 130.2(j), and Section 303(d) of the CWA

requires states to provide a list of WQLS to EPA (known as a § 303(d)

list). C-11, also identified as the South New River Canal (waterbody

identification # 3277A), is impaired as to nutrients, coliforms and

dissolved oxygen. Florida Department of Environmental Protection,

1998 303(d) Report 33, available at http://www.dep.state.fl.us/

water/tmdl/docs/303(d)-2.pdf 303 (last visited Nov. 3, 2003).

* “NGVD” means National Geodetic Vertical Datum.

16

J.A. 90. See App. 2 for a photograph of S-9. This rate

exceeds the rate of flow of the St. John’s River, one of the

largest rivers in Florida. See USGS, Calendar Year

Streamflow Statistics for Florida, available at http://

nwis.waterdata.usgs.gov/fl/nwis/annual/?site_no=02232400

&agency_cd=US (last visited Nov. 3, 2003). When the

water level in C-11 reaches four feet NGVD, or when

heavy rainfall is predicted, Petitioner activates S-9, which

pumps the stormwater across 60 feet of levees from east to

west, reversing the natural flow of water, out of C-11,

uphill, into WCA-3A. J.A. 54, 70-72, 90, 132-33.

Phosphorus-enriched water from C-11 contaminates

water and soils on either side of S-9. J.A. 125-26. “Concen-

trations [at S-9] range from less than 20 parts per billion

at low flows to greater than 100 parts per billion at high

flows.” J.A. 45 (emphasis added). S-9 discharged 5.4 metric

tons of phosphorus in 1997 alone. J.A. 43. The areas

surrounding S-9 are polluted. According to Dr. Jones: “The

phosphorus concentrations are at their maximum levels.

They can’t get any higher than they are.” J.A. 126.

An ecosystem already under stress is being further

damaged by Petitioner's system of canals, levees and

pumps that discharge phosphorus into the WCAs. J.A. 97,

98. Best management practices are not a panacea. Dr.

Jones challenges: “[i]f anybody can demonstrate to me or

find any place in the world where BMP has reduced the

phosphorus concentration. . . . I would love to see it ... it

will not be enough.” J.A. 123-24.

17

Il. THE ELEVENTH CIRCUIT CORRECTLY

CONCLUDED THAT S-9 REQUIRES A NPDES

PERMIT UNDER § 301(a) OF THE CWA.

The central objective of the CWA is “to restore and

maintain the chemical, physical and biological integrity of

the Nation’s waters.” 33 U.S.C. §125l(a) (2003). To

achieve this goal, Congress prohibited the discharge of any

pollutant to navigable waters except in compliance with

applicable permit requirements. 33 U.S.C. § 1311(a). The

term “discharge of a pollutant” is defined in Section

502(12) and means “any addition of any pollutant to

navigable waters from any point source.” § 502(12); 33

U.S.C. § 1362(12) (emphasis added). Although Congress

defined the terms “pollutant,” “point source” and “naviga-

ble waters,” it did not define “any addition.” Thus, what

constitutes an “addition” of a pollutant must be deter-

mined by a review of the facts of each case. See Concerned

Area Residents for the Env’t v. Southview Farm, 34 F.3d

114, 118 (2d Cir. 1994).

A. S-9 Is a Point Source.

The CWA defines a point source as “any discernible,

confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit ...

from which pollutants are or may be discharged.” 33

U.S.C. § 1362(14). No party disputes S-9 is a point source.’

* Petitioner relies on National Wildlife Fed’n v. Gorsuch, 693 F.2d

156 (D.C. Cir. 1982), and National Wildlife Fed’n v. Consumers Power

Co., 862 F. 2d 580 (6th Cir. 1988), for the proposition that S-9 does not

add pollutants to waters of the United States. Pet. Br. at 27. However,

this reliance is misplaced as the definitive question in Gorsuch and

(Continued on following page)

18

Pet. Br. at 2. Recognizing the goal of controlling pollution

“at the source,” courts have interpreted “point source” to

mean any discernible, human-controlled structure, device

or operation that adds pollutants to water. EPA further

defines “discharge of a pollutant” to include “surface runoff

which is collected or channelled by man; discharges

through pipes, sewers, or other conveyances owned by a

State, municipality, or other person which do not lead to a

treatment works.” 40 C.F.R. § 122.2 (2003).

B. C-11 and WCA-3 Are Physically Separate

Waterbodies.

1. Petitioner’s Unitary Waters Theory

Does Not Hold Water.

Petitioner does not dispute that C-11 and WCA-3A are

waters of the United States. Pet. Cert. at 2. Petitioner

argues instead that “the unique system of hydrologically

connected surface and ground waters extending over

15,000 square miles in the Everglades,” Pet. Br. at 6, is

Consumers Power was whether EPA's determination that dams should

be categorized as nonpoint sources rather than point sources was

entitled to deference. See South Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 280 F.3d 1364, 1368 n.4 (S.D. Fla. 2002) (citing

Consumers Power, 862 F. 2d at 584 and Gorsuch, 693 F. 2d at 175).

Here, by contrast, EPA has not made a similar determination that

pumping stations are not point sources.

* See, e.g., Concerned Area Residents for the Env't v. Southview

Farm, 34 F.3d 114, 118 (2d Cir. 1994) (holding “diffuse run-off” that is

channeled or collected is a point source); Dague v. City of Burlington,

935 F.2d 1343 (2d Cir. 1991) (finding a culvert is a point source); Sierra

Club v. Abston Constr. Co., 620 F.2d 41, 45-46 (5th Cir. 1980) (holding

strip mining operation is a point source where rain erodes waste pile

and carries away pollutants through naturally created ditches).

19

“part of a single navigable water.” Pet. Br. at 46. By this

logic, the Atlantic Ocean and the Everglades could be

considered part of the same “unitary water,” allowing

Petitioner to pump saltwater into the Everglades without

triggering the CWA.” Congress could not have intended

such anomalous results.

2. Florida Manages C-11 and WCA-3A as

Separate and Distinct Waterbodies.

The State of Florida classifies C-11 and WCA-3A as

separate waterbodies for purposes of watershed planning.”

The Everglades is divided into different basins and water-

bodies in recognition of the fact that water quality differs

among the basins and therefore must be individually

assessed and managed. FDEP, Florida’s Water Quality

Assessment 2002 305(b) Report 40, available at http://

" Northern Plains Res. Council v. Fidelity Exploration & Prod. Co.,

325 F.3d 1155, 1162 (9th Cir. 2003), cert. denied, 72 U.S.L.W. 3148, 72

U.S.L.W. 3277, 72 U.S.L.W. 3280 (U.S. Oct. 20, 2003) (No. 03-257). In

that case energy companies were pumping groundwater containing

naturally occurring pollutants out of coal seams and discharging it into

surface waters. The Ninth Circuit held that the unaltered groundwater

was a pollutant that was added to another water body thereby trigger-

ing the permit requirements of the CWA.

* The Florida Water Plan is the FDEP's “principal planning tool

for long-term protection of Florida’s water resources.” FDEP, Florida

Water Plan: Implementing Watershed Management 1 (Dec. 2001),

available at http//www.dep.state.fl.us/water/waterpolicy/docas/FWP_ Dec_

2001_DO_NOT_EDIT.pdf. To implement this plan, FDEP divided the

state’s waters into 52 basins and those basins into 30 groups. EPA

Region 4, Decision Document Regarding Department of Environmental

Protection’s § 303(d) List Amendment 4, available at http://www.epa.

gov/region4/water/tmdl/florida/florida303d_update.pdf (last visited Nov.

4, 2003) (hereinafter 2003 303(d) Update].

20

www.dep.state.fl.us/water/docs/2002_305b.pdf (last visited

Nov. 5, 2003). This management framework would be

meaningless if all of the water within the Everglades was

in fact one waterbody.

3. S-9 Pumps Stormwater Uphill from C-11

into WCA-3A. |

S-9 moves massive quantities of water from C-11 into

WCA-3A. Petitioner’s system collects and controls storm-

water in C-11. When the waters rise to four feet NGVD, as

many as three S-9 pumps, powered by “large bulldozer

engines,” J.A. 153, with a combined velocity of 2880 cfs,

kick on, lifting massive amounts of water up five to six

feet, across 60 feet of levees, into WCA-3A. J.A. 72, 90,

132, 172. Contrary to Petitioner’s assertion, this is not

simply the passive movement of water from one place to

another. Rather, it is the use of brute force to defy gravity,

and reverse the natural flow of polluted stormwater from

east to west into the Everglades.

C. S-9 Adds Pollutants to Waters of the

United States.

There is no question that phosphorous is a “pollutant,”

or that S-9 is a “point source,” or that WCA-3A is a “water

of the United States.” Nor is there any doubt that phos-

phorous levels in WCA-3A are increasing as a result of the

stormwater being pumped through S-9. Thus, the sole

question is whether the fact that phosphorous is already in

the stormwater before it is discharged through S-9 has any

legal significance. Petitioner argues that the pollutant

must originate “from” a point source. Pet. Br. at 26-27. For

the following reasons, this argument lacks merit.

21

1, Plain Meaning of Addition.

Congress did not define “addition” in the CWA. Thus,

it is appropriate to consider the plain meaning of “addi-

tion.” See Morales v. Trans World Airlines, Inc., 504 U.S.

374, 383 (1992) (citing F.M.C. Corp. v. Holliday, 498 U.S.

52, 57 (1990)). The primary definition of “addition” is “the

result of adding: anything added: INCREASE, AUGMEN-

TATION.” Webster’s Third New International Dictionary

(1971). S-9 increases phosphorus levels in WCA-3A above

natural background levels. J.A. 35. Therefore, according to

the plain meaning of the word “addition,” the operation of

S-9 results in the addition of a pollutant to WCA-3A.

2. Petitioner’s Argument Distorts the

Plain Meaning of Addition.

Petitioner argues that a discharge occurs only “when

the pollutant originates from the point source, not when

pollutants originating elsewhere are merely passed

through.” Pet. Br. at 26-27. This position is wrong as a

matter of law and fact. First, there is nothing in the

statute that requires that pollutants must “originate” in

the point source. To the contrary, Congress broadly de-

fined point source to mean any “confined and discrete

conveyance.” 33 U.S.C. § 1362(14) (emphasis added).

Petitioner is attempting to put words into the statute that

are not there.

Second, the Solicitor General rejected this interpreta-

tion, stating that the Eleventh Circuit “correctly rejected

the notion that pollutants can be added ‘from’ a point

source only if the point source itself generates or is the

originating source of the pollutants.” United States Br. at

22

13. Petitioner’s argument would render Congress’ defini-

tion of “point source” superfluous and attempts to back-

pedal from the admission that S-9 is a point source. See

Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S.

825, 837 (1988) (holding Court is unwilling to adopt

interpretations which render.superfluous another portion

of the same law).

Finally, it is not true that phosphorous simply “passes

through” S-9 on its way to WCA-3A. In the absence of

Petitioner’s stormwater collection system and S-9, this

phosphorous would be headed for the Atlantic Ocean. It

defies common sense to argue there is no addition of

phosphorous to the Everglades as a result of this human-

controlled point source.

3. The Solicitor General Has Taken In-

consistent Positions on the “Addition”

Issue.

After correctly disposing of the point source question,

the Solicitor erroneously argues that there is no addition

of phosphorous here because the Everglades is just one big

water body. United States Br. in Opp’n Cert. at 13. Previ-

ously the United States has argued for a broad application

of the term “addition” in CWA cases involving discharges

of dredge and fill material under Section 404.” Just last

** See United States v. Deaton, 209 F.3d 331, 335-36 (4th Cir. 2000),

aff’d on reh’g, 332 F.3d 698 (4th Cir. 2003) (“sidecasting” of dredge

materials into wetlands constitutes “addition”); United States v. M.C.C.

of Fla., Inc., 772 F.2d 1501, 1503-06 (11th Cir. 1985), vacated on other

grounds, 481 U.S. 1034 (1987), readopted in relevant part, 848 F.2d

1133 (11th Cir. 1988) (backwash from propellers constitutes “addition”);

(Continued on following page)

23

term, for example, the Solicitor took the position in this

Court that the “deep-ripping” of wetlands resulted in the

addition of pollutants to waters of the United States,

notwithstanding the fact that the pollutants did not

originate outside the wetlands. Borden Ranch P’ship v.

United States Army Corps of Eng’rs, 261 F.3d 810 (9th Cir.

2001), aff'd, 537 U.S. 99 (2002). The petitioners in Borden

Ranch argued that plowing wetlands did not involve any

“addition” of a pollutant requiring a permit under Section

404 of the CWA “because their activities merely ‘turn soil

in place while adding nothing and redepositing nothing.’”

Brief for the Solicitor General at 26, Borden Ranch v. Army

Corps of Eng’rs, 537 U.S. 99 (2002) (No. 01-1243). The

Solicitor argued this proposition was “wrong as a matter of

fact and as a matter of law.” Jd. at 25. Especially relevant

is the following statement: “[pJetitioner’s suggestion that a

‘discharge’ does not occur unless the ‘addition’ constitutes

‘new materials’ transported from a distant site cannot be

reconciled with the Clean Water Act’s terms.” Jd. at 27.

The same is true for S-9. The Solicitor’s suggestion

that there is no addition of phosphorus because the Ever-

glades is one “aterbody amounts to an argument that the

definition of addition is different for purposes of Section

404 than it is for Section 402. Such a position “cannot be

reconciled with the Clean Water Act terms.” Jd. at 25.

Congress used a single definition of discharge for both the

Section 402 and Section 404 programs. The Solicitor’s

position confuses what is a well-settled area of the law.

Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923-25 (5th

Cir. 1983) (mechanized land clearing constitutes “addition”).

24

Further, the Solicitor’s argument is inconsistent with

the way EPA and FDEP actually implement the CWA in

Florida. For example, Pe*:’ »ner operates four Stormwater

Treatment Areas (“STA”). SFWMD, 2003 Everglades

Consolidated Report 4A-2 (Jan. 1, 2003). STAs treat

stormwater to reduce the levels of phosphorus and then

discharge the treated stormwater into the Everglades. Id.

at 8B-17, 4-4. Recognizing that discharges from the STAs

are a significant source of phosphorus in the Everglades,

FDEP identified the STAs as Publicly Owned Treatment

Works (“POTW”) and issued NPDES permits to authorize

the discharge of phosphorus by the STAs into the Ever-

glades.

Unlike the STAs, Petitioner does not reduce the

amount of phosphorus in C-11 before S-9 pumps the water

into the Everglades. Because FDEP (and EPA, in its

NPDES approval process) acknowledges that treated

water discharged by the STAs constitutes the addition of a

pollutant, Petitioner’s position that the untreated storm-

water pumped by S-9 does not constitute the addition of a

pollutant is unsound.

Ill. ALTERNATIVELY, S-9 SHOULD BE REGU-

LATED AS A STORMWATER DISCHARGE

UNDER 402(p)(2)(E).

In 1987, Congress amended the CWA and created

a program to address stormwater“ from agricultural,

residential and industrial runoff. 33 U.S.C. § 1342(p).

“* Stormwater is defined by the EPA as “storm water runoff, snow

melt runoff, and surface runoff, and drainage.” 40 C.F_R. § 122.26(bX 13).

25

Specifically, Congress determined that stormwater dis-

charges should be controlled through the NPDES program.

Id. Notably, Congress chose to include in this program

discharges “for which the Administrator or the State, as

the case may be, determines that the stormwater dis-

charge contributes to a violation of a water quality stan-

dard or is a significant contributor of pollutants to waters

of the United States.” 33 U.S.C. § 1342(p\(2\E).

The express intent of Congress was to prohibit storm-

water pollution through readily identifiable sources. 33

U.S.C. § 1342(pX2A){D). Congress also recognized that

this expansive approach would not address all sources of

stormwater discharges. To ensure the program retained

the requisite flexibility to achieve its goal, Congress

enabled the Administrator or the State agency to desig-

nate other discharges on a case by case basis. 33 U.S.C.

§ 1342(p(2\E).

When designating a discharge under Section

402(p\2\E), the EPA guidelines state that:

At a minimum Regions and States should con-

sider immediately designating any storm water

discharges as requiring an NPDES permit if the

discharges are known/suspected to: ... contrib-

ute significant amounts of pollutants to waters of

the United States, including sensitive wetlands,

drinking water sources, estuaries, lakes, scenic

rivers/streams, or near coastal areas that are

highly valued natural resources.”

Memorandum from James R. Elder, Director, Office of

Water Enforcement Permits, Environmental Protection

Agency 3 (Aug. 8, 1990) (emphasis added), reproduced at App.

3-2la. EPA also found that the “305(b) reporting process

26

is a critical source of information for making determina-

tions under the authority of 402(p)(2)E).” Id.

Through its Section 303(d) and 305(b) reporting

requirements, FDEP has made a de facto determination

that the stormwater pumped by S-9 into WCA-3A contrib-

utes to a violation of water quality standards. Therefore, a

NPDES permit is required for S-9 under Section

402(p\2\E). S-9 discharges stormwater collected in C-11

into WCA-3A, which is a sensitive wetland, drinking water

source, and a near coastal area that is a highly valued

natural resource. J.A. 72. In fact, FDEP’s 2002 305(b)

Report lists the WCA as the first of the “largest and most

important” wetlands in the state. 2002 305(b) Report,

supra, at 73. Because WCA-3A is impaired as to phospho-

rus, any discharge of water containing phosphorus to

WCA-3 contributes to a violation of Florida water quality

standards. 1998 303(d) Report, supra, at 33. Therefore,

Petitioner’s discharge of stormwater via S-9 into WCA-3A

is a discharge that must be regulated pursuant to Section

402(p\(2)E) of the Act.

IV. REGULATION OF S-9 IS COMPATIBLE WITH

THE TMDL PROGRAM.

Petitioner also argues that the projects created to

comply with the CWA’s TMDL program “deal with the

pollution problems caused by the S-9 and its related

structures on a watershed wide basis” and that “[tjhese

efforts are now in jeopardy of being trumped, their imple-

mentation at least seriously delayed, by a federal NPDES

permitting process.” Pet. Br. at 37. These statements are

wrong as a matter of fact and law.

27

First, the NPDES program plays an integral part in

the TMDL program and contributes to achieving water

quality standards; any proposition that the NPDES

program would harm the TMDL program is erroneous.

Second, the “programs” the State and the District have

established to “deal with the pollution problems caused by

the S-9 and its related structure,” Pet. Br. at 37, are not

scheduled to be implemented for WCA-3A and the C-11

Basin until 2009. See EPA Region 4, Decision Document

Regarding Department of Environmental Protection’s

2003 § 303(d) List Amendment 4, available at http://www.

epa.gov/region4/water/tmd//florida/florida303d_update. pdf

(last visited Nov. 4, 2003) [hereinafter 2003 303(d) Up-

date].

Under the Florida Water Plan (“FWP”) Florida desig-

nated WCA-3A and C-11 as “low priority” for purposes of

TMDL implementation. Therefore, implementation of

programs to address the continued pollution problems will

not begin until 2009, at the earliest. 2003 303(d) Update,

supra, at 4. Therefore, Florida’s adoption of the FWP to

implement the TMDE program will allow continued

degradation of impaired water bodies until at least 2009.

Because FDEP has identified the waterbodies of concern

as water quality limited segments,” any additional loading

of phosphorus is a violation of water quality standards

and the CWA.” Such approach cannot, in good faith, be

“ According to the 1998 303(d) Report, C-11 (also known as South

New River Canal) and a number of waterbodies within WCA-3A are

listed as WQLS. The parameters (or pollutants) of concern are nutri-

ents. 1998 303(d) Report 32-33. See supra note 7.

* 40 C.FR. § 131.12 (containing the antidegradation policy).

28

described as a solution to the continued pollution problems

caused by S-9.

Restoration of the Everglades requires a concerted

effort by both state and federal governments. Petitioner

agrees the area is undergoing devastating change due to

phosphorus loading. It is incumbent upon all levels of

government to employ whatever means are available to

ensure the goal of protection is attained. However, the

State and Petitioner in particular, have not employed all

available mechanisms to address the devastation to the

Everglades. The CWA requires S-9 be permitted under the

NPDES program, which will allow Everglades restoration

to begin in earnest by reducing phosphorus loading. The

goal of the Clean Water Act is clear, and “the whole world

is watching” to see if Everglades restoration will succeed.

NPS, Everglades National Park: Park Establishment, at

http://www.nps.gov/ever/eco/nordeen.htm.

+

29

CONCLUSION

The decision of the court of appeals should be af-

firmed.

Respectfully submitted,

PATRICK A. PARENTEAU*

JULIA LEMENSE HUFF

ENVIRONMENTAL AND NATURAL RESOURCES

Law CLINIc”

VERMONT LAW SCHOOL

Chelsea Street

South Royalton, VT 05068

(802) 831-1000

*Counsel of Record

Attorney for Amici

” Counsel wish to recognize the extraordinary effort of student

clinicians Jason Hamilton, Spencer G. Hanes, Jr., Heidi Keeler Holland

and Marguerite McConihe in the preparation of this brief.

The Everglades

App. l

C-11 WEST CANAL IN CENTRAL BROWARD COUNTY-

N Sunrise Blvd.

my 4 Floodwater from

the C.i 1 West Basin is “

Davie pemped t the Everpkides

: an West via the £9 pamp

2. @

a :

Be Drive Bees

Grittin ——_—_ ;

Southwest Ranches

Stirling Rd, Floodwater in the

Cooper City sas

Sheridan St.

Pembroke Pines

Pines Bled.

Pembroke Reval

— ee

App. 3

[LOGO] ATTACHMENT AVAILABLE UPON REQUEST

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

OFFICE OF WATER

Aug — 8 1990

MEMORANDUM

SUBJECT: Designation of Storm Water Discharges for

Immediate Permitting

FROM: _ /s/ James R. Elder

James R. Elder, Director

Office of Water Enforcement and Permits

TO: Water Management Division Directors

Regions I — X

NPDES State Directors

The Water Quality Act of 1987 (WQA) provides EPA

and NPDES States with new deadlines for the develop-

ment of NPDES permit requirements for storm water and

discharges. This memorandum is intended to inform

Regional and State offices of the authority under the Act

to continue or initiate efforts to permit storm water

discharges that are causing environmental problems.

Background

Section 405 of the WQA amends the Clean Water Act

(CWA) by adding section 402(p) to address storm water

discharges. The Act provides a moratorium for certain

storm water discharges from the requirement to obtain

App. 4

permits until after October 1, 1992. However, there are

specific exceptions to this moratorium:

(A) A discharge with respect to which a permit

has been issued under section 402 before the

date of enactment of section 402(p).

(B) A discharge associated with industrial activ-

ity.

(C) A discharge from a municipal separate storm

sewer system serving a population of

250,000 or more.

(D) A discharge from a municipal separate

storm sewer system serving a population of

100,000 or more, but less than 250,000.

(E) A discharge for which the Regional Adminis-

trator or the State Director, as the case may

be, determines that the storm water dis-

charge contributes to a violation of a water

quality standard or is a significant contribu-

tor of pollutants to the waters of the United

States.

The existing delegation of authority to Regional Adminis-

trators to issue and condition permits or to deny applica-

tions for permits for discharges pursuant to section 402 of

the Clean Water Act includes the authority to implement

section 402(p)(2)(E) (Delegations Manual 7/25/84, 2-20

NPDES). This authority may be redelegated to the Direc-

tors of the Regional Water Divisions, subject to the provi-

sions of the 40 CFR 124 and 125.

Section 402(p)(2)(A) preserves the ability to enforce

existing permits. On December 7, 1988 (53 FR 49416),

EPA issued a notice of proposed rulemaking (NPRM) ad-

dressing permit application requirements for discharges

App. 5

covered by sections 402(p)(2)(B) through (E). This memoran-

dum will discuss implementation of section 402(p)(2)(E).

Di ;

Although EPA is currently amending regulatory

requirements for permit applications for incustrial and

municipal storm water discharges, some storm water

discharges have already been identified as representing

significant sources of pollutants with discernible adverse

effects on water quality and should be regulated through

the permits program now. Regional Offices and NPDES

approved States should designate those storm water

discharges for permit issuance under the authority of

section 402(p)(2)(E) as soon as possible after their impact

is documented.

Storm water dischargers required to obtain an

NPDES permit under section 402(p)(2)E) can include

dischargers from any conveyance or system of conveyances

used for collecting and conveying storm water runoff

including municipal separate storm sewer systems, storm

water dischargers associated with industrial activity, and

other dischargers from a point source. To be designated for

a permit under section 402(p)(2)(E), the Administrator, or

in States with approved NPDES programs, the Director,

must determine that the storm water discharge contrib-

utes to a violation of a water quality standard or is a

significant contributor of pollutants to waters of the

United States.

Section 502(14) of the CWA defines the term “point

source” broadly to include “any discernible, confined and

discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure,

App. 6

container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which

pollutants are or may be discharged.” Many courts have

supported broad interpretations of this term, for example,

the court in Sierra Club v. Abston Construction Co., Inc.,

620 F.2d 41 (5th Cir. 1980) found that conveyances formed

either as a result of natural erosion or by material means,

and which constitute a component of a drainage system,

were point sources.

However, it should be noted that agricultural storm

water discharges and return flows from irrigated agricul-

ture are specifically excluded from the CWA definition of

point source, and cannot be designated for a permit under

section 402(p)(2)(E). In addition, Section 402(1)(2) prohib-

its EPA from requiring an NPDES permit for discharge of

storm water runoff from mining operations or oil and gas

operations composed entirely of storm water which is not

contaminated by contact with, or does not come into

contact with any overburden, raw material, intermediate

products, finished product, by-product or waste products

located on the site of such operations. Storm water dis-

charges from mining operations or oil and gas operations

which meet the criteria of section 402(p)(2)(E) as being

either a significant contributor of pollutants to waters of

the United States or contributing to a water quality

standard violation either will be contaminated by contact

with, or will have come into contact with overburden, raw

material, intermediate products, finished product, by-

product or waste products located on the site of such

operations.

At a minimum, Regions and States should consider

immediately designating any storm water discharges as

a me ee

App. 7

requiring an NPDES permit if the discharges are known/

suspected to:

1. Contribute to a violation of a water quality

standard for a waterbody segment listed un-

der section 304(1)(1)(B), or contribute signifi-

cant amounts of pollutants to any waterbody

segment listed under sections 304(1)(1)(A),

319(aX(1), or 314(aX1\F)’.

2. Contribute significant amounts of pollutants

to waters of the United States, including

sensitive wetlands, drinking water source,

estuaries, lakes, scenic rivers/streams, or

near coastal areas that are highly valued

natural resources.

3. Originate from municipal separate storm

sewer systems that have, or are suspected of

having, process waste or sanitary wastes dis-

charged to them.

4. Originate from municipal separate storm

sewer systems that are suspected of contain-

ing a significant contribution of pollutants.

The four categories presented include (but are not

limited to) discharges which require storm water permits.

Each category is described and further clarified using

example case histories categorized in the following pages.

" Many discharges of pollutants associated with urban runoff,

construction, mining, agricultural (feedlots), and waste disposal have

traditionally been considered nonpoint sources. However, legally, storm

water from these sources discharged through conveyances are point

sources under the CWA.

A. Contribute to a violation of a water quality

standard for a waterbody segment listed

under section 304(1)(1)(B), or contribute

significant amounts of pollutants to any

waterbody segment listed under section

304(1)(1)(A).

Section 304(1) of the CWA requires States to develop

three lists of related waters impaired by toxic and nontoxic

pollutants. The first list (section 304(1)(1A)(i)) includes

waters that will not achieve numeric water quality stan-

dards for the 126 priority pollutants identified as toxic

pursuant to section 307(a) of the CWA after application of

CWA technology-based requirements. The second list

(section 304(1)(1)(A)(ii)) is a comprehensive list of waters

impaired by any pollutant from any source such that the

water is not meeting the goals of the CWA after applica-

tion of technology-based requirements. The _ section

304(1(1)(B) list consists of those waters which, after

application of technology-based requirements, are not

expected to achieve numeric or narrative water quality

standards due entirely or substantially to point source

discharges of any of the 126 priority toxic pollutants. The

fourth list (section 304(1)(1)(C)) is a list of point sources

affecting the waterbodies on the section 304(1)(1)(B) list.

On this fourth list, States must identify the specific point

sources discharging the toxic pollutant responsible for the

listing, and provide an individual control strategy (ICS) for

each source. The statutory language for section 304(1)(1) is

App. 9

as follows:

“State list of Navigable Waters and Development

of Strategies ...

(A) a list of those waters within the State which

(B)

(C)

after the application of effluent limitations

required under section 301(b)(2) of this-Act

cannot reasonably be anticipated to attain

or maintain (i) water quality standards for

such waters reviewed, revised, or adopted in

accordance with section 303(c)(2)(B) of this

Act, due to toxic pollutants, or (ii) that water

quality which shall assure protection of pub-

lic health, public water supplies, agricul-

tural and industrial uses, and the protection

and propagation of a balanced population of

shellfish, fish and wildlife, and allow recrea-

tional activities in and on the water;

list of all navigable waters in such state for

which the State does not expect the applica-

ble standard under section 303 of this Act

will be achieved after the requirements of

sections 301(b), 306, and 307(b) are met, due

entirely or substantially to discharges from

point sources of any toxic pollutants listed

pursuant to section 307(a);

for each segment of the navigable waters in-

cluded on such lists, a determination of the

specific point sources discharging any such

toxic pollutant which is believed to be pre-

venting or impairing such water quality and

the amount of each such toxic pollutant dis-

charged by each such source.”

App. 10

Waterbodies may be listed under section 304(1) be-

cause of storm water discharges associated with urban

runoff, construction site runoff, mining runoff, or other

runoff categories which contribute to a water quality

standard violation. For waterbodies listed on the section

304(1)(1)(B) list, States or EPA must have identified the

specific point source discharging the toxic pollutant by

June 4, 1989. States must have developed an individual

control strategy (ICS/NPDES permit) by June 4, 1989 or

EPA in cooperation with States must have done so by June

4, 1990. If the storm water discharge does not have an

NPDES permit that will control the point source and bring

the waterbody into compliance with State water quality

standards, then the discharge should be designated under

section 402(p)(2)(E). After designation, the ICS should

have been developed by June 4, 1990 in accordance with

304(1) regulatory requirements established on June 2,

1989 (54 FR 23868).

Paragraph (A)(ii) of section 304(1)(1) includes a listing

of waterbodies which, after application of technology-based

limits, fail to meet applicable water quality standards that

assure the attainment of designated uses and the fish-

able/swimmable goals of the CWA. This list is comprehen-

sive (i.e. it is not limited to waterbodies impaired by toxic

pollutants); and where storm water discharges impair

these listed waters, the storm water discharge should be

considered for designation and permit issuance under

section 402(p)(2)(E).

Example

The lower Duwamish River, which empties into the Puget

Sound in Washington, has been categorized as having

= ee ee

App. 11

extremely poor water quality partly attributable to metals

contamination. The major causes of the river’s condition

are industrial discharges, polluted storm water discharges,

overland runoff, and combined sewer overflows. As a

result, the lower Duwamish River was originally included

on Washington’s section 304(1)(1)(B) list. As part of the

Puget Sound Estuary Program’s activities, storm water

discharges were characterized for pollutant loadings of

metals and organics. Several storm drains were listed due

to metals contributions under section 304(1)(1)(C). Since

the original listings were submitted, however, the State

has suggested that storm drains be delisted. If any storm

drains remain on the section 304(1)(1)(C) list, an ICS/

NPDES permit will be developed. For storm drains not

listed, additional information should be collected; and if

this information shows a contribution to a water quality

impairment, such storm water discharges should be

designated for permitting under section 402(p)(2)(E).

B. Contribute significant pollutants to any

waterbody segment listed under section

319(a)(1).

Many storm water discharges have traditionally been

considered to be nonpoint sources of pollution because of

their diffuse and intermittent nature. Legally, however,

they are considered point sources if discharged from a

conveyance. Section 319(a)(1)(A) of the CWA requires

States to identify in Nonpoint Source Assessment Reports

those navigable waters within the State which, without

additional action to control nonpoint sources of pollution,

cannot reasonably be expected to attain or maintain

applicable water quality standards or goals and require-

ments of the CWA. Section 319(a)(1)(B) requires States to

App. 12

identify those categories and subcategories of nonpoint

sources which add significant pollution to navigable

waters identified under section 319(a)(1)(A). These lists

were required to be developed by States by August 4, 1988.

Similarly, section 305(b) requires that water quality

impacts from diffuse sources be identified. Discharges

from storm water point sources may be classified in

categories such as urban runoff or construction site runoff

in these reports. The statutory language of section

391(a)(1) is as follows:

“The Governor of each State shall, after notice

and opportunity for public comment, prepare and

submit to the Administrator for approval, a re-

port which:

(A) identifies those navigable waters within the

State which, without additional action to

control nonpoint sources of pollution, cannot

reasonably be expected to attain or maintain

applicable water quality standards or the

goals and requirements of the Act;

(B) identifies those categories and subcategories

of nonpoint sources or, where appropriate,

particular nonpoint sources which add

significant pollution to each portion of the

navigable waters identified under subpara-

graph (A) in amounts which contribute to

such portion not meeting such water quality

standards or such goals and requirements;”

As previously stated, idenvifiable categories under

section 319(a)(1)(B) may include discharges that are

associated with urban runoff, construction site runoff,

mining runoff, etc. (i.e., those categories that are identified

in the State Nonpoint Source Assessment Reports). After a

State’s Nonpoint Source Assessment Report is approved by

App. 13

the Regional Administrator, storm water discharges

covered by section 402(p), which may be listed in the

section 319 assessment that impact listed waterbodies,

should be considered for designation under section

402(p)(2)(E).

Example

The Minnesota Pollution Control Agency lists Ryan Creek

in its State Nonpoint Source Assessment Report as being

impacted solely by storm sewers and surface runoff. The

Report also lists Shingle Creek as being impacted by land

development, storm sewers and surface runoff. Those

storm water discharges that contribute to the impairment

could be considered for designation and permitting under

section 402(p)(2)(E).

C. Contribute significant pollutants to any water-

body segment listed under section 314(a)(1)(F).

As required by section 314, each State will conduct a

two-part study to determine a lake’s condition and develop

methods and strategies for restoration and protection.

Such information will specify the location and loading

characteristics of significant sources polluting the lake.

The statutory language appears in the following lines;

“Each State on a biennial basis shall prepare and

submit to the Administrator for his approval —

(F) an assessment of the status and trends of

water quality in lakes in such State, includ-

ing but not limited to, the nature and extent

to which the use of lakes is impaired as a re-

sult of such pollution, particularly with re-

spect to toxic pollution.”

App. 14

In accordance with section 314(a)(1)(F), States have

already submitted Lake Water Quality Assessment Re-

ports. These reports, in many cases, document the impact

of storm water discharges on lakes, and were included as

part of the State 305(b) Report. Where this information is

provided in an Assessment Report that has been approved

by the Regional Administrator, any storm water dis-

charges included in the section 314(a)(1)(F) assessment

(such as urban runoff, construction site runoff, mining

runoff, etc.) which impact a given waterbody should be

considered for designation under section 402(p)(2)(E).

Example

In the 1988 Lake Water Quality Assessment Report, the

Illinois Environmental Protection Agency lists Levings

Park Lagoon, Winnebago County as being water quality

limited and partially supporting of one or more designated

uses with moderate impairment. The principal source of

impairment has been identified as urban runoff. There-

fore, discharges resulting from the urban runoff that

impact the Levings Park Lagoon could be considered for

designation under section 402(p)(2)(E).

2. SIGNIFICANTLY IMPACT SENSITIVE WET-

LANDS, DRINKING WATER SOURCES, ESTU-

ARIES, LAKES, OR NEAR COASTAL AREAS

THAT ARE HIGHLY VALUED NATURAL RE-

SOURCES.

Under section 402(p)(2)(E), the Regional Administra-

tor or State Director must determine whether a storm

water discharge contributes to a violation of a water

App. 15

quality standard or is a significant contributor of pollut-

ants to waters of the United States. Based on such a

determination, 402(p)(2)(E) designations should be consid-

ered for storm water discharges that significantly impact

certain waters that warrant special consideration such as

wetlands, lakes, scenic rivers/streams, high quaiity head-

waters, estuaries, or coastal regions. Such waterbodies are

often spawning, feeding, and nursery grounds for various

species, and include sensitive habitats such as mangrove

marshes, seagrass beds, and coral reefs. Storm water may

enhance eutrophication of these water bodies, and con-

tribute to an overall deterioration in water quality. BOD

loads will generally lower the dissolved oxygen (DO) in

receiving waters. Petroleum hydrocarbon loads in receiv-

ing waters may result from storm water discharges.

Sediment loading from storm water runoff can settle to

cover spawning habitat or can shade submerged vegeta-

tion and limit photosynthesis. Lakes and estuaries have

long detention times and tend to concentrate nutrients,

such as phosphorous and nitrogen, and other pollutants in

the muds and water columns. Where such water bodies

are significantly impacted by storm water discharges,

these d scharges should be considered for designation. The

Regional Administrator or NPDES State Directors may

use the Lake Water Quality Assessment Reports and other

available information necessary to prioritize impacted

waterbodies for discharge designation.

Example

The quality and productivity of the Chesapeake Bay and

its tributaries have declined due to the impact of human

activity that has caused increased levels of pollutants,

nutrients, and toxics in the Bay system and declines in

App. 16

protective land uses, such as forested and undeveloped

lands. Shoreline areas of the Bay system are particularly

sensitive and susceptible to adverse impacts due to storm

water discharges. Where storm water discharges, such as

urban runoff, construction site runoff, mining runoff, etc.,

have been determined to represent a significant source of

pollutants to a segment of the Bay or a particular stream

segment of a Bay tributary, the discharge could be consid-

ered for designation under section 402(p)(2)(E).

TE STORM SEWE

THAT KNOWN TO OR SUSPECTED

OF HAVING PROCESS WASTE OR SANITARY

WASTES DISCHARGED TO THEM.

Studies have shown that many storm sewers contain

illicit discharges of non-storm water. In some municipali-

ties, illicit connections of sanitary, commercial and indus-

trial discharges to storm sewer systems have had a

significant impact on the water quality of receiving wa-

ters. Removal of these discharges presents opportunities

for improvement in the quality of storm water discharges.

3. MUNICIPAL SEP

Under the proposed storm water permit application

regulations, municipalities with separate storm sewers

serving a population over 100,000 must submit a man-

agement plan that requires screening for illicit discharges

and improper disposal. Municipal separate storm sewer

systems with identified improper discharges that signifi-

cantly impact receiving waters should be considered for

designation under section 402(p)(2)(E). Once designated,

the affected municipality will be responsible for submit-

ting a permit application. The permitting authority may

request the municipality to submit a description of a storm

water management plan, or any aspect of a management

App. 17

plan that may call for monitoring and screening for illicit

connections and improper discharges. Such plans are to

include subsequent measures for the removal and elimina-

tion of such known discharges. The following examples

document cases where such problems existed and where

improvement in water quality was achieved following the

elimination of illicit connections. It is important to note

that the section 402(p)(2)(E) designation authority can be

used to require NPDES permits for any size municipal

separate storm sewer system or specific discharges points

within the system. This authority may be useful to ad-

dress municipal separate storm sewer systems that serve

populations of less than 100,000, since those cities are not

required to file applications for storm water permits before

October 1, 1992.

Example

One recent study performed in Ann Arbor, Michigan

concluded that illegal and improper industrial and com-

mercial point source connections to storm drains repre-

sents a significant source of pollutants in storm water

discharges. Half of the businesses investigated in Ann

Arbor had at least one storm drain connection through

which potentially hazardous pollutants could enter the

storm sewer. Significant improvements in water quality

were realized as these connections were removed and the

flows shifted to sanitary sewers. Over two-thirds of auto-

related businesses such as repair shops, tire stores, service

stations and body shops, and half of the car washes inves-

tigated had illegal or improper connections to the storm

drainage system. Similar municipal separate storm water

systems should be considered for designation under

section 402(p)(2)(E).

App. 18

Example

The City of Fort Worth has begun a surveillance program

to curb illegal dumping of industrial and domestic waste

into the city’s estimated 200 storm drains that feed

streams flowing to the Trinity River. Over a period of one

year, 57 cases of illegal waste dumping by businesses and

industries were investigated. Eighteen cases of improper

connection of domestic sewage lines to storm drains were

discovered. The city has implemented corrective measures

and several citations have been issued to violators. The

surveillance effort was initiated, after a series of devastat-

ing fish kills plagued the Trinity River. Monitoring has

shown that diesel fuel, chemical solvents, pesticides, raw

sewage and chlorine are present in storm water dis-

charges. Similar storm water corrective measures could be

required after the municipal system is designated under

section 402(p)(2)(E).

4. MUNICI P

DIS E T

CONT: G :

TION PO

The characterization of storm water discharges in

terms of concentrations and pollutant loads viewed to-

gether with water quality standards and National Urban

Runoff Program (NURP) data derived from typical urban

runoff characteristics, provides an indication of whether

the discharge is a significant contributor of pollutants. For

instance, the mean concentration is defined as the total

constituent mass discharge, divided by the total runoff

volume for a rainfall event. These simplified approxima-

tions can be used as the basis for designation as a signifi-

cant contributor of pollutants. Where such specific

ee —_——~

App. 19

information is lacking for a particular municipality, NURP

data can be used to make initial screening estimates of

pollutant loads associated with municipal separate storm

sewers. Using the NURP recommendations for load

estimates provided in Attachment A, pollutant loadings

can be calculated for a range of pollutant concentrations.

As municipal dischargers provide a more accurate esti-

mate of pollutants based on site specific data and the use

of more sophisticated models, such as the Storm Water

Management Model (SWMM), pollutant concentrations

and loads can be compared to NURP and other estimates.

Based on the resulting characterizations, discharges from

municipal separate storm sewer systems that contain a

significant contribution of pollutants can be determined

and, where appropriate, considered for 402(p)(2)(E) desig-

nation.

P for Designati

On January 12, 1989, (54 FR 246), EPA published a

final rule which codified portions of section 402(p), includ-

ing section 402(p\(2)(E), into EPA regulation at 40 CFR

122.26(a). In addition to December 7, 1988 (53 FR 49416),

EPA proposed revisions to procedures at 40 CFR 124.52

for designating storm water discharges on a case-by-case

basis. Until EPA promulgates these regulations, proce-

dures for case-by-case designations should be modeled

after existing regulatory procedures at 40 CFR 124.52.

The Regional Administrator, or in States with approved

NPDES programs, the Director, will notify the discharger

in writing that the discharge is being considered for

designation and the reasons fer the consideration. In

addition, an application form is to be sent with the notice.

App. 20

Until EPA promulgates specific permit application

requirements for storm water discharges, operators of

storm water discharges considered for designation under

section 402(p)(2E) should generally submit Form 1 and

Form 2C permit applications. For designation of dis-

charges from a municipal separate storm sewer system,

Form 1 and Form 2C applications for each outfall may not

be appropriate. In this case, the permitting authority may

request the applicant to submit information modeled after

the permit application requirements for large and medium

municipal separate storm sewer systems proposed in the

December 7, 1988, notice.

Deadlines for submitting permit applications will be

established on a case-by-case basis. Although a 60-day

period from the date of notice for submitting a permit

application may be appropriate for many designated storm

water discharges, site specific factors may dictate that the

Regional Administrator or NPDES State provide addi-

tional time for submitting a permit application. For

example, due to the complexities associated with designa-

tion of a municipal separate storm sewer system for a

system- or a jurisdiction-wide permit, the Regional Admin-

istrator or NPDES State may provide the applicant with

additional time to submit relevant information or may

require that information be submitted in phases.

Attachment B contains example reports from the

“Waterbody System,” which is an information system

which retains the results of the section 305(b) reports. The

305(b) reporting process is a critical source of information

for making determinations under the authority of section

402(p\(2E). The data system is now only partially imple-

mented, but beginning with the 1990 305(b) reporting

cycle should contain the assessment data for all States.

Saw

App. 21

Regional Offices and States can use data from the

305(b) Waterbody System, the 1988 Lake Water Quality

Assessment Report, and other available information

characterizing storm water discharges to make determina-

tions under the authority of section 402(p)(2)E). The

permitting procedures should commence as soon as the

impact from storm water discharges is recognized. In

addition, when industrial permits that regulate only non-

storm water discharges expire, they should be evaluated to

determine whether storm water discharges need to be

addressed.

If you have any questions regarding this matter,

please contact Cynthia Dougherty at FTS/202 475-9545 or

have your staff contact Mike Mitchell at FTS/202 475-

7057.

Attachments

cc: LaJuana S. Wilcher

Robert H. Wayland III

Martha Prothro

Tudor Davies

Dave Davis

Geoff Grubbs

NPS Coordinators