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

SU

NO. 02-626

In 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

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF

AMICI CURIAE OF THE COALITION OF GREATER

MINNESOTA CITIES AND THE CITY OF SAINT

CLOUD, MINNESOTA IN SUPPORT OF RESPONDENTS

DOUGLAS L. SKOR* CHRISTOPHER M. HOOD

Larson King, LLP STEVEN W. NYHUS

2800 Wells Fargo Place Flaherty & Hood, P.A.

St. Paul, MN 55101 444 Cedar Street, Suite 1200

(651) 312-6574 St. Paul, MN 55101-2129

* Counsel of Record (651) 225-8840

Counsel for Amici Curiae Coalition of Greater Minnesota

Cities and the City of Saint Cloud, Minnesota

—s

QUESTION PRESENTED

Whether the transfer of untreated water containing

pollutants from a source water body to another, naturally

distinct destination water body constitutes an “addition” of

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

Section 1251, ef seg., where the water from the source

water body could not enter the destination water body but

for the transfer activity of a point source.

TABLE OF AUTHORITIES

Cases Page

Appalachian Power Company v. Train,

545 F.2d 1351 (4th Cir. 1976)..................4. 11-12

Catskill Mountains Chapter of Trout Unlimited, Inc. v.

City of New York,

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

Chevron USA, Inc. v. Natural Resources Defense

Council, 467 U.S. 837, 104 S.Ct. 2778,

rae 9, 16

Committee to Save Mokelumne River v. East Bay

Municipal Utility District,

13 F.3d 305 (9th Cir. 1993),

cert denied sub nom. Members of California

Regional Water Quality Control Board v.

Committee to Save Mokelumne River,

513 U.S. 873, 115 S.Ct. 198 (Mem.),

Be See BID COP rc cccccccscscesccccscecs 5, 12-15

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

ie ctbadidneaeieenanenente 17

iil

TABLE OF AUTHORITIES —- CONTINUED

Page

DuBois v. United States Department of Agriculture,

102 F.3d 1273 (ist Cir. 1996)................045 passim

In the Matter of the Saint Cloud Wastewater Treatment

Plant NPDES Permit,

No. 7-2200-14439-2 (Minn. Off. Admin. Hrngs.

EE a 3

Miccosukee Tribe of Indians, et al. v. South Florida

Water Management District,

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

National Wildlife Federation v. Consumers Power

Company,

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

National Wildlife Federation v. Gorsuch,

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

Northern Plains Resource Council v. Fidelity

Exploration and Development Co.,

325 F.3d 1155 (9th Cir. 2003) ...............008 17-18

iv

TABLE OF AUTHORITIES —- CONTINUED

Statutes and Regulations Page

Clean Water Act of 1977, § 502(12),

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Vv

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE

Pursuant to Rule 37 of this Court, the Coalition of

Greater Minnesota Cities (the “CGMC”) and the City of

Saint Cloud, Minnesota (“St. Cloud”) request leave to file

the accompanying brief as amici curiae in support of

Respondents on the writ of certiorari granted to Petitioner

South Florida Water Management District, which seeks

reversal of the lower court’s decision in Miccosukee Tribe

of Indians, Sam Poole v. South Florida Water Management

District; Friends of the Everglades v. South Florida Water |

Management District, 280 F.3d 1364 (11th Cir. 2002).

Consent for amici participation was requested of ail parties

on November 13, 2003, and granted on the same date.

vi

INTERESTS OF AMICI CURIAE

Amici curiae submit this brief in support of

Respondents on the writ of certiorari granted to Petitioner

South Florida Water Management District, which seeks

reversal of the lower court’s decision in Miccosukee Tribe

of Indians of Florida, Sam Poole v. South Florida Water

Management District; Friends of the Everglades v. South

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

Cir. 2002).' Amici wish to clarify proper application of the

Clean Water Act to inter-basin transfers of untreated water,

and the alleged “split” among the federal circuits on this

question. |

The Coalition of Greater Minnesota Cities (the

“CGMC”) is an association of 72 city governments located

throughout the State of Minnesota. The City of Saint

Cloud, Minnesota (“St. Cloud”) is a political subdivision of

the State of Minnesota and a CGMC member city. St.

Cloud and most other CGMC cities treat residential,

commercial and industrial wastewater through publicly

owned treatment works (POTWs), which operate under

five-year National Pollutant Discharge Elimination

System/State Disposal System (NPDES/SDS) permits

issued by the Minnesota Pollution Control Agency

(MPCA) pursuant to Clean Water Act delegation.

Since January 2001, St. Cloud has been involved in

' 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.

ae + al le

vii

litigation regarding the re- issuance of the NPDES

permit for its POTW, which had last been re-issued in

1994. As discussed below, a key issue in that litigation is

whether St. Cloud’s phosphorus discharge, which goes

directly to the Mississippi River, could be held to “affect”

the Vadnais Chain of Lakes (“Vadnais Chain”), a

hydrologically distinct set of waters (i.e., not connected to

the Mississippi River), solely because the City of Saint Paul

(“St. Paul”) withdraws water from the Mississippi River

and deposits that untreated water into the Vadnais Chain.

Because of the potential adverse impacts of Mississippi

River water on the more sensitive Vadnais Chain, St. Paul

treats the river water to reduce phosphorus, a nutrient that

would cause excessive algae growth in those lakes. St.

Cloud is not held responsible for the cost of treatment by

St. Paul because it is the action of St. Paul, not St. Cloud,

that impacts water quality in the Vadnais Chain.

If the Eleventh Circuit’s decision is reversed on the

issue of these so-called “inter-basin transfers,” it would

result in St. Cloud, CGMC member cities and cities

throughout the country being held liable for otherwise

compliant levels of pollutants in their discharge entering

hydrologically distinct waters, solely because of transfer

activities conducted by third parties. These third parties

would in effect reap the benefits of the water transfers,

while imposing the detriments of their actions on others,

contrary to the arguments made by other amici curiae. No

federal circuit has ever supported this position.

In 1973, the MPCA adopted a regulation designed

to control point source discharges of phosphorus into

waters of the state, known as the “Phosphorus Rule.” The

Phosphorus Rule provides that “where the discharge of

Vill

effluent is directly to or affects a lake or reservoir, .

phosphorus removal to one milligram per liter (1 mg/L)

shall be required.” Minn. R. 7050.0211, subp. la.

St. Cloud’s POTW discharges directly to the

Mississippi River, roughly 60 miles north of the

Minneapolis-St. Paul metropolitan area. St. Paul withdraws

water from the Mississippi River at a pumping station

located at Fridley, a northern suburb of Minneanolis. The

river water withdrawn by St. Paul, treated to reduce

pollutants that could adversely impact the Vadnais Chain,

is then deposited into the Vadnais Chain to augment St.

Paul’s drinking water supply. The Mississippi River and

the Vadnais Chain are naturally distinct navigable waters

with no natural connection. Water from the Mississippi

River can enter the Vadnais Chain only by means of St.

Paul’s pumping station activity.

On December 26, 2000, the MPCA issued St.

Cloud’s draft NPDES permit for public review and

comment. The MPCA did not recommend a 1 mg/L

phosphorus limit pursuant to the Phosphorus Rule, because

the St. Cloud WWTF discharges directly to a river and the

MPCA could not demonstrate that St. Cloud’s phosphorus

discharge affects any downstream lake or reservoir, as

required by the Phosphorus Rule. The Minnesota Center

for Environmental Advocacy (MCEA), a local

environmental group, petitioned for a contested case

hearing on the draft permit in January 2001. Among the

allegations made by the MCEA was that St. Cloud’s

phosphorus discharge is transported in the Mississippi

River 60 miles downstream to Fridley, where the river

water containing phosphorus is withdrawn by St. Paul’s

Fridley pumping station, then deposited in the Vadnais

ix

Chain. Based on this transfer, MCEA argued, St.

Cloud’s phosphorus discharge “affects” the Vadnais Chain,

and a phosphorus limit is required.

The MPCA granted MCEA’s request for a

contested case hearing and referred the matter to an

Administrative Law Judge (ALJ). After the completion of

discovery, St. Cloud moved for summary disposition on

September 5, 2002, alleging that MCEA had produced no

evidence to suggest that St. Cloud’s phosphorus discharge

affected any downstream lakes or reservoirs because, inter

alia, it is St. Paul, not St. Cloud, that discharges to the

lakes. The MPCA joined in St. Cloud’s motion, and

MCEA opposed the motion.

St. Cloud relied on the Eleventh Circuit’s decision

in Miccosukee for the proposition that St. Cloud’s

phosphorus discharge could not “affect” the Vadnais Chain,

because water from the Mississippi River could not enter

the Vadnais Chain but for St. Paul’s intervening transfer

action. Assuming that St. Cloud’s phosphorus discharge

actually traveled the 60 miles downriver from St. Cloud to

Fridley, it was St. Paul’s pumping station, and not St.

Cloud’s POTW discharge, that became the point source

“adding” phosphorus, and therefore “affecting,” the

Vadnais Chain through the transferred river water.

On October 31, 2002, the ALJ granted St. Cloud’s

motion for summary disposition and made a

recommendation consistent with the Miccosukee decision

to the MPCA Citizens’ Board. The ALJ’s recommended

order qr i Miccosukee and held that because of the

transfer between basins, the Phosphorus Rule could not be

applied to find that St. Cloud’s phosphorus discharge

“affects” the Vadnais Chain. The MPCA adopted the

x

ALJ’s recommended order on December 19, 2002, and

MCEA appealed the decision to the Minnesota Court of

Appeals. In an unpublished opinion, the Court of Appeals

affirmed in part, reversed in part, and remanded the matter

for a contested case hearing. As the ALJ had done before,

the Court of Appeals specifically quoted Miccosukee, and it

specifically affirmed the decision of the ALJ and the

MPCA Citizens’ Board on the ruling that St. Paul, and not

St. Cloud, was the point source legally responsible for any

phosphorus in untreated water removed from _ the

Mississippi River by St. Paul and deposited into the

Vadnais Chain.

A reversal of the Eleventh Circuit’s holding in

Miccosukee on the point of inter-basin transfers — that is, of

the holding that a point source is not legally responsible for

pollutants contained in water drawn from one basin and

then deposited into another, hydrologically distinct basin —

would have the practical effect of holding upstream point

source dischargers, including most CGMC members and

St. Cloud, legally responsible for the effects of their

discharges in hydrologically disconnected waters, even

where such effects result from the intervening actions of

downstream transfers beyond their control.

It would be illogical to interpret the Clean Water

Act in this manner, and the federal circuits are consistent in

their interpretation of the Act to prevent such a result. The

Clean Water Act’s forbearance to regulate the allocation of

water for public uses through the NPDES regime has

nothing to do with the NPDES program’s regulation of the

pollutants in those waters — the two inquiries are

completely separate. Similarly, the Clean Water Act’s

regulation of pollutants “added” to navigable waters by

xi

point sources does not inquire as to the original

sources of those pollutants. Where the pollutants enter the

water body only because of the transfer activity, the

transferor’s responsibility under the Clean Water Act for

such action should be triggered. For these reasons, the

CGMC and St. Cloud respectfully request leave to file the

attached brief amici curiae.

Respectfully submitted,

Dated: WILE ‘. 7 Ny—

DOUGLAS L. SKOR*

Larson King, LLP

2800 Wells Fargo Place

St. Paul, MN 55101

(651) 312-6574

* Counsel of Record

Counsel for the Coalition | CHRISTOPHER M. Hoop

of Greater Minnesota Cities STEVEN W. NYHUS

and the City of Saint Cioud, Flaherty & Hood, P.A.

Minnesota 444 Cedar Street, Suite 1200

St. Paul, MN 55101-2129

(651) 225-8840

xii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ............2.000eeeceeneeeeeereeeeees i

TABLE OF AUTHORITIES sdiatihhiinhhhadeiiiniainanuceiatl il

MOTION FOR LEAVE TO FILE BRIEF

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INTERESTS OF AMICI CURIAE..........2.. -see0seeeeeeees vi

FACTUAL BACKGROUND. .............00:20ceeee eee ee eee ees l

SUMMARY OF ARGUMENT.............-.::eeeeeeeee eee eees 4

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L. Federal Circuit Court Decisions Agree That

Intra-Basin Transfers Within The Same

Navigable Water, Such As From One Side

Of A Dam To Another, Do Not Require An

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xiii

TABLE OF CONTENTS —- CONTINUED

Page

I. Federal Court Decisions Agree That

- Inter-Basin Transfers Between Naturally

Distinct Navigable Waters, Where The Source

Water Could Not Enter The Destination Water

But For The Activity Of A Point Source,

Require An NPDES Permit For The Point

Source Conducting The Transfer ............-.---- 11

COINCILIISIOIN ....ccccccccccccccscccsccscccccccccesccccssecsnces 20

FACTUAL BACKGROUND

The City of St. Cloud operates a POTW that

discharges directly to the Mississippi River. It is

undisputed that St. Cloud does not discharge directly to a

lake or reservoir. As the operator of a wastewater

treatment facility, St. Cloud is required to hold an NPDES

permit, which is periodically renewed by MPCA pursuant

to MPCA’s NPDES delegation. See Minn. Stat. § 115.03,

subd. 5. The MPCA promulgated the Phosphorus Rule 30

years ago to address the adverse impact of phosphorus in

lakes and reservoirs due to excessive algal growth. The

Phosphorus Rule provides, in relevant part:

Where the discharge of effluent is directly to or

affects a lake or reservoir, phosphorus removal to

one milligram per liter shall be required....

Minn. R. 7050.0211, subp. 1a (2001).

Because St. Cloud does not discharge directly to a

lake or reservoir, the 1 mg/L effluent limit found in the

Phosphorus Rule can apply to St. Cloud only if its

discharge of phosphorus “affects a lake or reservoir.” In

the time since MPCA adopted the Phosphorus Rule, St.

Cloud’s NPDES permit has been reissued five times.

Before the MCEA challenged the draft permit in 2001,

neither MPCA nor any other party had claimed that St.

Cloud was subject to the phosphorus effluent limit found in

the Phosphorus Rule.

2

In January 2001, MCEA _ requested that

MPCA hold a contested case hearing regarding the

reissuance of St. Cloud’s NPDES permit. The issue

certified for a contested case was “whether the discharge of

phosphorus from the St. Cloud wastewater treatment plant

will affect a lake or reservoir.” Among other arguments,

MCEA contended that the 1 mg/L limit should be applied

to St. Cloud because St. Cloud’s phosphorus discharge

allegedly affects the Vadnais Chain of Lakes. The Vadnais

Chain is not connected to the Mississippi River. Water

from the Mississippi River reaches the Vadnais Chain only

because the City of St. Paul extracts water from the

Mississippi River at its Fridley pumping station, treats it,

and artificially transfers it into the Vadnais Chain.

St. Cloud moved for summary disposition on

September 5, 2002, arguing among other things that MCEA

had failed to establish 1) that St. Cloud discharges to the

Vadnais Chain of Lakes, and 2) that St. Cloud’s discharge

has a measurable effect on algal levels on a downstream

lake or reservoir. St. Cloud made this argument in reliance

on the instant case.' With respect to the Vadnais Chain, the

ALJ granted summary disposition because St. Cloud does

not “discharge” to the Chain. The ALJ decided, as a matter

of law, that “when St. Paul intervenes to pump Mississippi

| s+ Cloud also relied on the cases identified by the Eleventh Circuit in

Miccosukee in support of its opinion, including National Wildlife

Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), National

Wildlife Federation v. Consumers Power Company, 862 F.2d 580 (6th

Cir. 1988), DuBois v. United States Department of Agriculture, 102

F.3d 1273 (ist Cir. 1996), and Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of New York, 273 F.3d 481 (2nd Cir. 2001),

discussed infra.

3

River water into the Vadnais Chain of Lakes, St. Paul

becomes the discharger of that water and St. Paul is

responsible for any pollutants contained in that water.” Jn

the Matter of the Saint Cloud Wastewater Treatment Plant

NPDES Permit, No. 7-2200-14439-2 (Minn. Off. Admin.

Hrngs. October 31, 2002). The Minnesota Court of

Appeals affirmed on this point in an unpublished opinion.

SUMMARY OF ARGUMENT

The Petitioner in the instant case claims that the

Eleventh Circuit decision, and the Catskill Mountains and

DuBois decisions upon which it relies, will have the

practical effect of further stressing an already overburdened

NPDES program by requiring millions of dams, levees,

canals and diversion structures to obtain NPDES permits to

avoid Clean Water Act violations, at an enormous cost to

taxpayers. Other amici’ similarly argue that a deep divide

exists among the federal circuits about the application of

the Clean Water Act’s NPDES permitting provisions to

transfers of untreated water within a water body or between

water bodies for such purposes as drinking water,

irrigation, or flood control.

Contrary to these assertions, we submit that the “but

for” test applied by the Eleventh Circuit in the instant case

is consistent with the decisions of other circuits on the

matter of intra-basin and inter-basin transfers, holding that

Clean Water Act liabilities are triggered by action. We

urge this Court to recognize that failing to hold transferors

of untreated water between naturally distinct water bodies

accountable under the Clean Water Act for the adverse

effects associated with the transferred water subjects

upstream sources to liability for downstream acts of third

? See Brief of Amici Curiae The City of New York, the Association of

Metropolitan Water Agencies, the National Association of Flood and

Stormwater Management Agencies, the American Water Works

Association, and the Association of Metropolitan Sewerage Agencies in

Support of Petitioner (filed September 10, 2003).

SE a ee

5

parties. This result would occur even where 1) the

upstream discharge is already regulated by an NPDES

permit and is in full compliance with Clean Water Act

requirements, and 2) the transfer between naturally distinct

water bodies occurs without any action by, and often

without the knowledge of the upstream point source. On

this point, the circuits are consistent: the downstream party

transferring (ie., “discharging”) the pollutants is

responsible for these impacts.

Since the Gorsuch decision in 1982, the federal

circuit cases addressing transfers of untreated water by

point sources have for the most part fallen into two lines:

intra-basin transfers for which an NPDES permit would not

be required (National Wildlife Federation v. Gorsuch, 693

F.2d 156, 165 (D.C. Cir. 1982), and National Wildlife

Federation v. Consumers Power Company, 862 F.2d 580,

584 (6th Cir. 1988)), and inter-basin transfers for which

requiring the transferor to obtain an NPDES permit would

be an appropriate application of Clean Water Act authority

(Committee to Save Mokelumne River v. East Bay

Municipal Utility District, 13 F.3d 305 (9th Cir. 1993),

DuBois v. United States Department of Agriculture, 102

F.3d 1273 (1st Cir. 1996), and Catskill Mountains Chapter

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

Cir. 2001)). The guiding principle running through each

case is that where the ‘water bodies in question are

naturally, hydrologically distinct — that is, water could not

move from one body to the other without the intervening

action of a point source — the federal circuits have subjected

the transferring point sources to NPDES regulation. This

triggers an evaluation of the pollutant impacts associated

with the point source. Evaluating pollutant impacts does

6

not affect rights to the water; it merely requires that the

incidental adverse impacts associated with the water

transfer be addressed.

Using the Clean Water Act’s NPDES permitting

mechanism to limit the transfer of pollutants contained in

untreated water from one water body to another, naturally

distinct water body is consistent with the purposes of the

Act. The NPDES program’s forbearance to regulate

transfers of waters for public purposes has nothing to do

with its regulation of point sources adding pollutants to

navigable waters, regardless of where those pollutants m: 'y

have originated. Therefore, the Eleventh Circuit’s

reasoning with regard to inter-basin transfers and use of a

“but for” analysis should be affirmed, regardless of how the

remainder of the Petitioner's claims are decided.

_—

ty

ARGUMENT

Federal Circuit Court Decisions Agree That Intra-Basin

Transfers Within The Same Navigable Water, Such As

From One Side of A Dam To Another, Do Not Require

An NPDES Permit.

Despite claims to the contrary in the instant case,

the distinction between intra-basin and inter-basin transfers

is significant and fundamental to the exercise of NPDES

authority, certainly from the standpoint of an upstream

point source that operates under an NPDES permit. The

long-simmering question of whether the NPDES

requirements of the Clean Water Act apply to discharges

from dams and similar impoundments came to a head in

National Wildlife Federation v. Gorsuch, 693 F.2d 156,

165 (D.C. Cir. 1982). Seeking a declaratory judgment

against the Environmental Protection Agency (EPA) on the

subject, the National Wildlife Federation (NWF) pointed

out that when a river is dammed, and water from the

reservoir behind the dam is then released back into the river

channel, this can induce a number of significant water

quality changes, including but not limited to low or high

dissolved oxygen, sediment, dissolved substances, and

water with temperatures above or below those in the

downstream river channel. /d. at 161-164.

The D.C. Circuit identified five elements in the

8

Clean Water Act’s definition of “discharge of a pollutant”

that must be satisfied in order for a point source to require

an NPDES permit: “(1) a pollutant must be (2) added (3)

to navigable waters (4) from (5) a point source.” 693 F.2d

at 165; see also Clean Water Act § 502(12), 33 U.S.C. §

1362(12). The parties stipulated that dams can at times be

“point sources” and that both the rivers and the reservoirs

behind them could be “navigable waters”; their dispute was

over what constitutes “pollutants,” and whether passing

allegedly pollutant-laden water from one side of a dam to

another constitutes an “addition” “from” a point source.

Gorsuch, 693 F.2d at 165. The D.C. Circuit noted:

EPA argues, on the other hand, that for addition of

a pollutant from a point source to occur, the point

source must introduce the pollutant into navigable

water from the outside world; dam-caused

pollution, on the other hand, merely passes

through the dam from one body of navigable water

(the reservoir) into another (the downstream

river).

Id. After consideration of evidence presented by both

parties, the D.C. Circuit appropriately deferred to the

EPA’s definitions of the term “pollutants” and its

construction of the term “addition,” concluding that the

EPA’s construction of these terms in the Clean Water Act,

as evidenced by the statutory text and the Act’s legislative

history, was reasonable. /d at 177. This deference was

also based on the Clean Water Act’s legislative purpose,

and the Court’s finding that not requiring NPDES permits

9

for dams does not frustrate the purpose of the Act.

Gorsuch, 693 F.2d at 179. The D.C. Circuit concluded that

if dam-induced pollution was truly of major

proportions, someone, be it EPA, the National

Wildlife Federation, or other environmental

groups, would most likely have brought it to

Congress’ attention, either in 1972 or 1977. And

of course, the National Wildlife Federation, if

unhappy with our attempt to divine what Congress

would have done about dam-caused pollution had

it thought about it, is still free to seek a legislative

solution. Unless and until Congress addresses the

matter, we cannot say that the Act requires EPA to

adopt the strictest possible regulatory solution.

Id. at 182.

The Sixth Circuit applied the five-element

definition used by the D.C. Circuit in Gorsuch and

accorded similar deference to the EPA, this time with the

guidance of Chevron, to the EPA’s construction of the term

“addition”, given that EPA had utilized a reasonable

construction of a statute that the EPA is assigned to

administer. National Wildlife Federation v. Consumers

Power Company, 862 F.2d 580, 584 (6th Cir. 1988); see

also Chevron, U.S.A. v. National Resources Defense

Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81

L.Ed.2d 694 (1984). In this context, it was not

unreasonable for the EPA to conclude that the withdrawal

of water containing live fish from Lake Michigan, and the

re-release of water containing living and dead fish back

10

into Lake Michigan through electric generation turbines,

did not constitute an “addition” of pollutants from the

outside world. Consumers Power Co., 862 F.2d at 585-6;

accord Gorsuch, 693 F.2d at 165.

In both Gorsuch and Consumers Power Co., the

water body in question did not change: one involved the

transfer of water from one side of a dam to another, the

other involved the cycling of water in and out of the same

lake. Contrast these with the situation faced by St. Cloud,

where the waters of the Mississippi River and the Vadnais

Chain of Lakes would not intermingle under natural

conditions, and that of other POTWs whose discharge may

be redirected downstream by the actions of third parties.

Petitioners in the instant case assert that their water

management equipment, including the S-9 pump at issue,

“are merely tools used to move water and determine the

quantity of water in different parts of the system. Without

the levee system, the managed waters would naturally flow

together as a sheet across south Florida.” This is likely

true; nonetheless, the Eleventh Circuit’s reasoning that a

point source is the cause-in-fact of the “addition” of

pollutants to a naturally distinct water body when it

deposits polluted water from another water body remains

sound, assuming that these are naturally distinct waters.

Numerous point sources discharge process water of

varying quality; POTW’s frequently discharge wastewater

that is cleaner and freer of pollutants than the receiving

waters. The Clean Water Act, however, does not

distinguish the need to obtain an NPDES permit based

upon the quality of the discharge: the “discharge” is

defined as “any addition of any pollutant to navigable

waters from any point source.” 33 U.S.C. § 1362(12)(A)

5 ert ere ow

—— ae ot —

11

(emphasis added). For purposes of — whether

NPDES regulations apply, a point source can keep

pollutants out of a discrete navigable water or let them in,

regardless of where the pollutants originated. A point

source can be, and often is, a gatekeeper. If the principle of

holding point sources responsible for the effects of inter-

basin transfers is abandoned on the facts of Miccosukee, the

transfer of polluted water from one basin to another could

continue unabated regardless of its detrimental effects,

undercutting the purposes of the Act.

Il

Federal Circuit Court Decisions Agree That Inter-Basin

Transfers Between Naturally Distinct Navigable

Waters, Where The Source Water Could Not Enter The

Destination Water But For The Activity Of A Point

Source, Require An NPDES Permit For The Point

Source Conducting The Transfer.

Petitioner asserts that the “but for” test represents a

radical departure from the EPA’s traditional construction of

the term “addition.”’ This is simply untrue. In support of

this assertion, Petitioner discusses Appalachian Power

Company v. Train, 545 F.2d 1351 (4th Cir. 1976). While

the Fourth Circuit did note that “those constituents

occurring naturally in the waterways or occurring as a

result of other industrial discharges, do not constitute an

3 See Petition for a Writ of Certiorari, South Florida Water

Management District (filed October 21, 2002), at 15.

12

addition of pollutants by a plant through which they

pass,” the Fourth Circuit is silent on the issue of whether

the “naturally occurring” constituents were being added to

another, naturally discrete water to which the pollutants

would not otherwise have traveled. Appalachian Power

Co., 545 F.2d at 1377. The “cooling ponds and lakes” at

issUe in Appalachian Power Co. appear to be artificially

constructed waters created through dams, where water

would be drawn from the pond, cycled through condensers,

and then returned to the pond for cooling. Jd. at 1357-8.

Appalachian Power Co. does not change the

distinction between passing pollutants through connected

waters, and depositing waters containing pollutants into

naturally distinct waters. The first may not be a point

source discharge; the second always is. The first line of

cases involved transfers within or between naturally

connected waters, or intra-basin transfers; therefore a “but

for” analysis would not apply.

An example of the second line of cases, inter-basin

transfers, can be found in Committee to Save Mokelumne

River v. East Bay Municipal Utility District, 13 F.3d 305

(9th Cir. 1993). In this case, a facility designed to collect,

pump and recirculate highly contaminated drainage from an

abandoned zinc and copper mine through a series of

reservoirs, primarily the Mine Run Dam Reservoir,

contained a spillway that allowed occasional overflows of

polluted water into the Mokelumne River during heavy

rainfalls. Jd. at 307.

The Ninth Circuit distinguished Gorsuch and

Consumers Power Co. by pointing out that, first, these

cases did not categorically exempt all dams from the Clean

Water Act’s point source regulatory authority. Mokelumne

13 r

River, 13 F.3d at 308. Second, unlike the release

of water from one side of a dammed river channel to the

other (Gorsuch) or the withdrawal from and return of water

to the same water body (Consumers Power Co.), the

District’s reservoirs were naturally distinct bodies designed

to collect acid mine drainage. Jd It was the incidental

release of this drainage that introduced pollutants into the

Mokelumne River; therefore, this spillage constituted the

“addition” of pollutants from the outside world requiring an

NPDES permit. /d. at 308.

A clearer example, and one that St. Cloud’s

situation typifies, may be found in DuBois v. United States

Department of Agriculture, 102 F.3d 1273 (1st Cir. 1996).

A, a proposed ski facility expansion in New Hampshire

would involve drawing water from Loon Pond, the East

Branch of the Pemigewassett River and Boyle Brook to

make snow. /d. at 1296. Used water from all three sources

would then be pumped back into Loon Pond. /d The

district court had reasoned that since the East Branch and

Loon Pond were both “waters of the United States,” they

were to be treated as a “singular entity” and could not be

considered separately. /d Similarly, the U.S. Forest

Service argued that because water from Loon Pond flows

out through the East Branch, the waters were “naturally

connected” waters of like quality; therefore an NPDES

permit was not required for the transfer. Jd. at 1297.

Relying on Gorsuch, Consumers Power Co. and

Mokelumne River, the First Circuit rejected both the

“singular entity’ and “hydrological connectedness”

arguments. With regard to the first, the First Circuit

pointed out that pollutants from the East Branch would

never enter Loon Pond naturally; although connected, they

14

are separate bodies of water with a single direction of

flow. DuBois, 102 F.3d at 1297. Considering both to be a

“singular entity” would frustrate the purpose of the Clean

Water Act. Jd.

Fhe Forest Service’s “hydrological connectedness”

argument also failed because the First Circuit found no

evidence in the Clean Water Act of a distinction between

“unrelated” and “hydrologically connected” waters; the Act

simply refers to “any addition of any pollutant to navigable

waters from any point source.” Jd. at 1298; see also 33

U.S.C. §1362(12)(A). Further — and as the First Circuit

notes, “more compellingly’ — simply looking at the

direction of flow from Loon Pond to the East Branch

logically indicates that pollutants could not get into Loon

Pond from the East Branch unless someone put them there:

Again, the First Circuit focused on the nuance that but for

the activity of the intervening point source — in this case,

the ski facility’s snowmaking pump — pollutants from the

East Branch could not possibly enter Loon Pond; therefore

an “addition” of pollutants could not have occurred. 102

F.3d at 1298.

The First Circuit’s rejection of the analyses offered

by the district court and the U.S. Forest Service is

instructive. The fact that the East Branch and Loon Pond

were connected indicates that the presence or absence of a

natural connection between the source and destination

waters does not tell the whole story. As discussed in

Gorsuch, the “discharge of a pollutant” means “(1) a

pollutant must be (2) added (3) to navigable waters (4)

from (5) a point source.” 693 F.2d at 165; see also Clean

Water Act § 502(12), 33 U.S.C. § 1362(12). Mokelumne

River established that the point source need not create the

15

pollutant but only discharge it. See Mokelumne River,

13 F.3d at 308.

DuBois confirms this, and adds the dimension that

the diversion of flow by a point source, even when the

waters are interconnected, can constitute an addition of

pollutants from a point source where the pollutants would

not have entered the destination water but for the action of

the point source.

In the decision below, the Eleventh Circuit confirms

that the definition of “discharge of a pollutant” can neither

be so restrictive as to exclude pollutants not originating

from the point source, nor so expansive as to always

include dams and other devices that merely pass along

water containing pollutants within or between connected

waters. Miccosukee, 280 F.3d at 1371. A “but for” test

strikes this balance, although it should be noted that the St.

Cloud example does not even need this deep an analysis.

The Mississippi River and the Vadnais Chain of Lakes are

not connected in any way except by St. Paul’s pumping

station; therefore it becomes the easiest case for

comparison and the plainest example of the “but for” test at

work.

The amici brief filed by the City of New York and

others heavily criticizes Catskill Mountains Chapter of

Trout Unlimited, Inc. v. City of New York, 273 F.3d 481

(2nd Cir. 2001). Since before World War II, the City of

New York has diverted water from the Schoharie Reservoir

(behind the Schoharie Dam) through the Shandaken

Tunnel, into Esopus Creek, which in turn empties into the

Ashokan Reservoir, from which the City draws its drinking

water supply. /d. at 484. Were it not for the Shandaken

Tunnel diversion, water from the Schoharie Reservoir

16

would flow into Schoharie Creek and eventually the

Hudson River, and waters from Schoharie Creek and

Esopus Creek would never intermingle until they

eventually both flowed into the Hudson River. Catskill

Mountains, 273 F.3d at 484.

The Second Circuit criticized the application of

Chevron-style deference, such as that given in Gorsuch

(although Gorsuch pre-dated Chevron) and Consumers

Power Co., to informal EPA policy statements that have

not involved formal action, e.g., notice-and-comment

rulemaking. 273 F.3d at 491. In interpreting the term

“addition,” however, the Second Circuit ultimately reached

a conclusion perfectly consistent with Gorsuch, Consumers

Power Co. and subsequent decisions:

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 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. When the

water and the suspended sediment therein passes

from the Tunnel into the Creek, an “addition” of a

“pollutant” from a “point source” has been made

to a “navigable water,” and the terms of the statute

are satisfied.

= eae ee

caine .

17

Catskill Mountains, 273 F.3d at 492. Citing a

consistent decision in Dague v. City of Burlington, 935

F.2d 1343 (2nd Cir. 1991), the Second Circuit explicitly

rejected, as the First Circuit had in DuBois, any implication

of a “singular entity” theory that may be drawn from

Gorsuch and Consumers Power Co. Catskill Mountains,

273 F.3d at 491-92. Indeed, a “singular entity” theory

would render the word “addition” in the Clean Water Act

meaningless because any interconnected waters could be

viewed in this manner. /d. at 492.

Amici curiae the City of New York and others argue

that extending the Catskill Mountains “ladle in the soup

pot” analogy excludes consideration of waters coming from

above or below, e.g., acid rain or tainted groundwater. This

contention is addressed in Northern Plains Resource

Council v. Fidelity Exploration and Development

Company, 325 F.3d 1155 (9th Cir. 2003). Fidelity was

extracting coal-bed methane, and in this process

groundwater containing a number of chemicals was

released into the Tongue River. /d at 1157. The parties

stipulated that four of the five elements necessary to prove

a Clean Water Act violation were satisfied: there was a (1)

discharge (3) from a point source (4) to a navigable water

(5) without an NPDES permit. /d at 1159-60. The only

issue remaining was whether the groundwater, unaltered by

Fidelity but nonetheless containing chemicals that degraded

the water quality of the Tongue River, constituted a

“pollutant.” Jd. The Ninth Circuit answered this question

in the affirmative. /d at 1162. It went on to point out that

the mere transport of unadulterated water from one body to

another can in fact violate the Clean Water Act, as was held

in the present case, Catskill Mountains, and DuBois.

18

Northern Plains, 325 F.3d at 1163.

It may very well be correct, as the City of New

York asserts, that the Eleventh Circuit erred in requiring an

NPDES permit for the pumping of water from one side of a

levee to another, in Everglades waters that were once a

single, continuous sheet. That distinction in the Catskill

case, however, is inapposite. The Shandaken Tunnel

diverts water, and the pollutants in the water, from

Schcharie Creek to Esopus Creek. Were it not for this

diversion, the two creeks would not have intermingled at

any point before reaching their respective confluences with

the Hudson River. The same “but for” test applies in

Catskill Mountains, DuBois, and Mokelumne River.

If, therefore, Miccosukee were reversed, the reversal

should only go to the point that the transfer of water by the

S-9 pump was from one side of a levee to another, rather

than from one discrete body of water to another. In other

words, Miccosukee would shift from fitting into the second

line of cases (inter-basin transfers) to fitting into the first

(intra-basin transfers). A reversal should not be used as a

lever by which to exempt all transfers of untreated water

from NPDES regulation, as some amici have urged,

because some of these transfers can and do result in the

“addition” of pollutants by point sources to navigable

waters: precisely the type of activity the Clean Water Acct is

designed to address.

The Eleventh Circuit in the instant case couched the

“but for” test in such a way that strikes harmony between

intra-basin and inter-basin transfers:

When a point source changes the natural flow of a

19

body of water which contains pollutants and

causes that water to flow into another distinct

body of navigable water into which it would not

have otherwise flowed, that point source is the

cause-in-fact of the discharge of pollutants. And,

because the pollutants would not have entered the

second body of water but for the change in flow

caused by the point source, an addition of

pollutants from a point source occurs.

Miccosukee, 280 F.3d at 1368-69.

Rather than upending two decades of Cléan Water

Act law, the application of the “but for” test captures point

source discharges to naturally distinct waters, even where

the point source is not producing the pollutants in the

transferred water, but continues to exclude dams and

similar devices that merely shift, hold, or move water

among interconnected or indistinct bodies, even where

those waters may contain pollutants. The effects of the

“but for” test are not nearly so severe as the Petitioners and

others claim.

Overturning the “but for” test, on the other hand,

could have dramatically adverse effects on existing POTWs

that are currently in compliance with Clean Water Act

requirements. If a point source transfers untreated water

from one distinct basin to another, and the pollutants

contained in the untreated water are carried from one

distinct water to another, yet the point source performing

the transfer is considered not to be “adding” pollutants

under the Clean Water Act, then the focus would shift to

upstream point sources. This would subject every upstream

20

point source to a risk of increased liability, despite

full compliance with NPDES permits and other Clean

Water Act regulations. Upstream POTWs would be forced

to adopt expensive mitigating measures to remedy harm

caused not by their own actions, but by those of a single

downstream point source.

The St. Cloud case provides an instructive example

of how the absence of a “but for” test could affect upstream

point sources. As discussed earlier, Mississippi River

water enters the Vadnais Chain of Lakes only because St.

Paul pumps water from the river, treats it and then transfers

it to the lakes. It is the actions of the St. Paul facility alone,

and not the river’s natural flow or the actions of St. Cloud,

that allow additional phosphorus loads associated with

Mississippi River water to enter the Vadnais Chain of

Lakes. As long as the but for test holds, it is reasonable to

conclude that St. Cloud is not a discharger to the Vadnais

Chain within the meaning of Minnesota’s Phosphorus Rule.

As the ALJ in the St. Cloud case stated, “when Saint Paul

intervenes to pump Mississippi River water into the

Vadnais Chain of Lakes, Saint Paul becomes the discharger

of that water and St. Paul is responsible for any pollutants

contained in that water.” This follows the logic of

Miccosukee, Catskill Mountains, and DuBois, and that logic

is well founded.

CONCLUSION

For all of the foregoing re: sons, amici respectfully

urge the Court to affirm the decis:on of the Court of

Appeals for the Eleventh Circuit, with regard to the issue of

21

inter-basin transfers. The Court should uphold the

proposition that where a point source |) changes the natural

flow of a body of water and causes it to flow into another

navigable water into which it would not otherwise have

flowed, and 2) the pollutants contained in the transferred

water would not have entered the other navigable water but

for the change in flow, then 3) the transferor of water

becomes the cause-in-fact of the discharge of pollutants and

an “addition” of pollutants from a point source occurs,

requiring the transferor to obtain an NPDES permit.

Respectfully submitted,

Dated: | Wfpyfe3 he Th

DOUGLAS L. SKoR*

Larson King, LLP

2800 Wells Fargo Place

St. Paul, MN 55101

(651) 312-6574

* Counsel of Record

Counsel for the Coalition | CHRISTOPHER M. Hoop

of Greater Minnesota Cities STEVEN W. NYHUS

and the City of Saint Cloud, Flaherty & Hood, P.A.

Minnesota 444 Cedar Street, Suite 1200

St. Paul, MN 55101-2129

(651) 225-8840