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

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## Record

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

## Text

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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Re OG i isecccivitesinicccisianiiteidciitatainatinianinnas I
a OTe riciccsissetictisiloviticteciainceiinabaiommeabiiina 1

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
ADMITS CUREAR.....0ccccecscvcceccsvevevccscscsccsescsesseccccscess Vv
INTERESTS OF AMICI CURIAE..........2.. -see0seeeeeeees vi
FACTUAL BACKGROUND. .............00:20ceeee eee ee eee ees l
SUMMARY OF ARGUMENT.............-.::eeeeeeeee eee eees 4
RETAIITTID ..0..0cccoscocseccccvevesss:sccsccssccscssopes sovecees 7

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
DEI PER, 0c ccccccvccsccccccsccccseccesdocescccess 7

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A32. Public record. Not legal advice.