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

Supreme Court brief2003

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i 72

No. 02-626

In The

Supreme Court of the Anited

CLERK

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

Petitioner,

MICCOSUKEE TRIBE OF INDIANS, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

BRIEF OF AMICI CURIAE NATIONAL

WILDLIFE FEDERATION, NATURAL RESOURCES

DEFENSE COUNCIL, SIERRA CLUB, AMERICAN

RIVERS, NATIONAL AUDUBON SOCIETY,

NATIONAL PARKS CONSERVATION

ASSOCIATION AND WORLD WILDLIFE FUND

IN SUPPORT OF RESPONDENTS

HOWARD I. Fox JAMES MURPHY

EARTHJUSTICE NATIONAL WILDLIFE

1625 Massachusetts FEDERATION

Avenue, N.W. 1400 16th Street, N.W.

Suite 702 Suite 501

Washington, D.C. 20036-2212 Washington, D.C. 20036

(202) 667-4500 (202) 797-6893

Counsel of Record for Amici Counsel for Amicus Curiae

Curiae National Wildlife National Wildlife

Federation, Natural Federation

Resources Defense Council,

Sierra Club, American

Rivers, National Audubon

Society, National Parks

Conservation Association

and World Wildlife Fund November 14, 2003

OOS SS“

‘ COCKLE LAW BRIEF PRINTING CO. (890) 225-6964

OR CALL COLLECT (402) 342-2831

Page

ED GIF GUE peecenncssonsasensennsnniesnenniantnianions i

STATEMENT OF INTEREST ...................ccesseeceeeseeees 1

STATEMENT OF THE CASE .................ccccceseeeeeeeeeees 1

SUMMARY OF ARGUMENT. .................cccceseeeeeeeeeeees 3

EE coneetinssneineintnminniiaiiniiindis 4

I. ON THE FACE OF §§ 301(a) AND 402(a), AS

Il.

TABLE OF CONTENTS

ELUCIDATED BY USAGE OF THE TERM

“DISCHARGE” IN § 401, S-9’s PUMPING

CONSTITUTES THE “DISCHARGE OF ANY

PUPEMEF ERRIT Es crncveerensecoerseseveremnsssncnqvsuseqnenenns

A. §S-9’s Pumping Constitutes a Discharge...

(1) The Statutory Term “Discharge” Must

Be Given Meaning, and That Mean-

ing Should Be Consistent With Usage

Elsewhere in the Act .................0e0eceees

(2) Both the Plain Meaning of the Term,

and Usage of the Same Term in

§ 401(a), Confirm That S-9’s Pumping

Constitutes a “Discharge.” .................

B. The Water Pumped Through S-9 Con-

QUID “TEINS censevepusnssenccsesescnesnianesees

C. Discharge of Water Containing Pollut-

ants Constitutes the “Discharge of Any

POS cocsnssenusininnnnntiinnticeniniienn

S-9’s PUMPING FITS WITHIN THE § 502(12)

DEFINITION OF “DISCHARGE OF A POL-

III.

TABLE OF CONTENTS - Continued

Page

A. S-9’s Discharge Constitutes the “Addition” of

Pollutants to United States Waters................

(1) Circuit Precedent Unanimously Holds

That Diversions Between Waterbod-

ies Constitute “Additions.” .................

(2) By Regulating Discharges of “Dredged

Material” and “Dredged Spoil,” the Act

Confirms That Discharges Need Not

Come From an Outside Source...........

B. S-9 Is a “Point Source.” .............ccccceceeeeees

C. Pollutants Are Added to WCA3 “From” S-

SECTION 304(f)(2)(F) OFFERS NO BASIS

FOR OVERRIDING THE ACT’S SUBSTAN-

TIVE PROVISIONS CONCERNING DIS-

CHARGE OF POLLUTANTS ...........ccccceeseeeees

THE RULES OF STATUTORY INTERPRE-

TATION FAVOR THE APPLICABILITY OF

THE ACTS POINT SOURCE PROVISIONS

A. Applicability of Point Source Requirements to

S-9 Is Well Within Congress’ Commerce

Clause Power Over the Concededly Navigable

Waters at Issue Here, and Thus Does Not Im-

plicate Federalism-Driven Clear State-

STTIID cncncsansenseessnecesnsesonessessssess

B. Exempting S-9’s Pumping of Phosphorus-

Laden Stormwater From Point Source

Requirements Would Produce Absurd

tia dietteeatiaatiiiincementenpnansssscnsesens

TABLE OF CONTENTS - Continued

Page

C. The Rule of Lenity Offers No Basis for

Narrowing the Reach of the Act’s Point

Source Provisions ...........-.ccssccccccccseseesseees 29

CONCLUSION ...0cccccoccsccsscccccccccccssssceccsscsscosssssssosssess 30

TABLE OF AUTHORITIES

Page

CASES

Alabama Rivers Alliance v. FERC, 325 F.3d 290

a Gs Gi eenenssncssnsensecsncestrennnensindieenmncinnenes 7,9, 10

Appalachian Power Co. v. Train, 545 F.2d 1351 (4th

EEE Gia cccnccsnsmnnnnnenensctsnsiansninansnnenaibiiiinininieninibindaaniien 10

Arkansas v. Oklahoma, 503 U.S. 91 (1992)..............ccc00000 29

Avoyelles Sportsmen’s League v. Marsh, 715 F.2d

oP 13, 14

Borden Ranch Partnership v. U.S. Army Corps of

Engineers, 261 F.3d 810 (9th Cir. 2001), aff’d,

Se Ce Ge Ge cracerennnsnstinnanicsneusidtuvnimennttineaemnens 14

Caminetti v. United States, 242 U.S. 470 (1917)............... 22

Catskill Mountains Chapter v. City of New York,

a ne Se Sa ee Ge ccncctnnnerenensinnennnmnn 9

Chao v. Mallard Bay Drilling, 534 U.S. 235 (2002).......... 24

Desert Palace v. Costa, 123 S. Ct. 2148 (2003)................... 6

Dubois v. United States Department of Agriculture,

BR ee 9

Egelhoff v. Egelhoff, 532 U.S. 141 (2001) .............ccccceeeeeeee 27

Milwaukee v. Illinois, 451 U.S. 304 (1981)............ 26, 28, 29

Minnehaha Creek Watershed District v. Hoffman,

597 F.2d 617 (8th Cir. 1979)............cscccccccrscccesesseseees 17, 25

National Mining Association v. U.S. Army Corps of

Engineers, 145 F.3d 1399 (D.C. Cir. 1998)................000+. 15

National Wildlife Federation v. Consumers Power

Co., 862 F.2d 580 (6th Cir. 1988) ...............ccsesccecceeesseees 10

OO IIT Be

~ 2 eb. co

TABLE OF AUTHORITIES -— Continued

Page

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

ae Ge i crtrccnennccnsenansnsnnnsremannnmemmnannns 10

New York v. FERC, 535 U.S. 1 (2002).................sssseseeeeeerees 23

Norfolk & Western Rwy. Co. v. Ayers, 538 U.S. 135,

ee 24

PUD No. 1 v. Washington Department of Ecology,

A 2, 6, 7, 24

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159

ee 3, 5, 19, 20, 22, 23

Train v. Natural Resources Defense Council, 421

ee, Ge Ce ceneenesensssesnsnsatimnemmmmnmemennnee 26

US Airways v. Barnett, 535 U.S. 391 (2002) ..............00000+ 24

United States v. Brace, 41 F.3d 117 (3d Cir. 1994)............ 14

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

TT concctntnnanensnenenipensinbeieneniinenntennnteeibmenemnS 14

United States v. Deaton, 332 F.3d 698 (4th Cir.

ITT nccndnnsnsnsnensinnescnnnsnnanansanaeenensnieennitenntentintetd 20, 21, 22

United States v. Huebner, 752 F.2d 1235 (7th Cir.

BIT nonecssnenssssensntussnnnspessmnnnmmnnninengenmmuesnnnennenmens 14

United States v. M.C.C. of Florida, 772 F.2d 1501

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

U.S. 1034 (1987), discharge analysis reaffirmed

on remand, 848 F.2d 1133 (11th Cir. 1988).................... 14

United States v. Oakland Cannabis Buyers’ Coop-

erative, 532 U.S. 483 (2001) .......cccccccccccccccescoccccessocccescess 27

TABLE OF AUTHORITIES — Continued

Page

United States v. Riverside Bayview Homes, 474 U.S.

Sas ee iarstisserennenecninecinainnnininnnnmmenenienemmmenennamemneunented 20

United States v. Thompson /Center Arms Company,

ey eae aI Eee ciciteclinentcntecntinendindisiiininiiacinenendmeneel 30

STATUTES

Clean Water Act § 101, 33 U.S.C. § 1251.....2, 23, 24, 25, 29

Clean Water Act § 301, 33 U.S.C. § 1811................... passim

Clean Water Act § 303, 33 U.S.C. § 1313.........00000..c ee 26

Clean Water Act § 304, 33 U.S.C. § 1314............... 17, 18, 26

Clean Water Act § 306, 33 U.S.C. § 1316.......0000...cccc cee 26

Clean Water Act § 307, 33 U.S.C. § 1317..............ccccccceeeees 12

Clean Water Act § 401, 33 U.S.C. § 1341................... passim

Clean Water Act § 402, 33 U.S.C. § 1342 ......000000...... passim

Clean Water Act § 404, 33 U.S.C. § 1344................... passim

Clean Water Act § 502, 33 U.S.C. § 1362................... passim

REGULATIONS

eee ir eieeeceseniecidseniaceieienetaeaeaiasianianmneatasiteantaiiaindi 11,17

eee 26

en 26

| 26

Se cretrernnsesenscepemnemmenmemeneien 11

Vii

TABLE OF AUTHORITIES -— Continued

Page

LEGISLATIVE HISTORY

117 Cong. Rec. 38798-38854 (Nov. 2, 1971)..........00++ 12, 25

118 Cong. Rec. 10662 (March 28, 1972).............ccsecseeeeeeeees 25

123 Cong. Rec. 26712 (August 4, 1977) .........ccssssseeeeeeeees 13

123 Cong. Rec. 26767 (August 4, 1977) ..........ccccseesereeees 13

H.R. Rep. No. 911, 92d Cong., 2d Sess. (1972) ..........s:++++: 25

S. Rep. 370, 95th Cong., Ist Sess. (1977) ........:ccsceseseeeeeees 13

S. Rep. 414, 92d Cong., Ist Sess. (1971).............cceeeeeeeeeeee 25

CouRT RULES

STATEMENT OF INTEREST

National Wildlife Federation, Natural Resources

Defense Council, Sierra Club, American Rivers, National

Audubon Society, National Parks Conservation Association

and World Wildlife Fund all have a long history of in-

volvement in, and expertise concerning, the protection of

our Nation’s waters and the implementation of the Clean

Water Act. Through testimony in Congress, comments and

other advocacy in the Executive Branch, and litigation in

the courts, they have pursued these interests repeatedly

during the three decades since enactment of the seminal

1972 amendments that gave the Act its current structure.

All of these organizations have members who use and rely

on a wide array of waters throughout our Nation for

recreation, scientific study, and protection of their health,

safety, property, drinking water, and food supply.’

STATEMENT OF THE CASE

At issue is whether the core protections of the Clean

Water Act apply to South Florida Water Management

District’s practice of pumping huge quantities of pollutant-

laden stormwater uphill from a collection canal in a

developed urban and suburban area, into a natural wet-

land area in the Everglades. The Act’s core objective is to

“restore and maintain the chemical, physical, and biological

* Pursuant to S. Ct. R. 37.3(a) and 37.6, the undersigned represent

that (1) all parties consented to the filing of this brief, (2) no counsel for

any party authored this brief in whole or in part, and (3) no person or

entity other than the above-named amici curiae and their counsel made

a monetary contribution to the preparation or submission of this brief.

integrity of the Nation’s waters,” §101(a), and no one

denies the substantial adverse effect that the river-sized

flow of phosphorus-laden stormwater pumped by peti-

tioner is having on the water quality and ecosystem of the

precious Everglades. Instead, the dispute is whether the

Act’s central safeguard — its point source permitting

program — encompasses that pumping.

As we show below, S-9’s pumping plainly amounts to

the “discharge of any pollutant” triggering point source

requirements. Indeed, the highly manipulated activities at

issue here bear no resemblance to the surface runoff that

the United States cites (at 5 n.1) as the “textbook exam-

ples” of nonpoint pollution.

Petitioner and the United States seek to avoid point

source requirements on the ground that the polluted

stormwater canal from which the pumped water is drawn

itself constitutes a water covered by the Act — and that

moving pollutants from one covered water (the canal) to

another (the Everglades) does not constitute a discharge of

those pollutants. This argument is textually untenable, as

we show below. Moreover, by allowing the unpermitted

diversion of polluted water from any covered waterbody to

any other, the argument would open the door to major

degradation of less polluted waterbodies by more polluted

ones. Such an approach cannot be reconciled either with

the Act’s core objective of restoring and maintaining the

integrity of covered waters, or with its provision for water

quality standards designed to protect “the specific uses

and attributes of a particular body of water.” PUD No. 1 v.

Washington Dept. of Ecology, 511 U.S. 700, 717 (1994).

SUMMARY OF ARGUMENT

Petitioner and the United States pay scant attention

to the key statutory phrase defining the applicability of

the permit requirement: “discharge of any pollutant.”

Under the plain meaning of the term, informed by usage of

that same term in another Clean Water Act provision

(§ 401), S-9’s pumping plainly qualifies as a “discharge.”

Moreover, no one disputed below that the phosphorus in

the pumped water is a “pollutant.”

S-9’s pumping also constitutes the “addition of any

pollutant to navigable waters from any point source” within

the meaning of the Act’s definition of “discharge of a pollut-

ant.” It is undisputed that the Everglades waters to which S-

9 pumps pollutants are “navigable waters” protected by the

Act, and that S-9 constitutes a “point source.” Petitioner’s

and the United States’ claim that S-9 does not cause an

“addition” of pollutants relies on older appellate precedent,

ignoring a recent contrary D.C. Circuit decision. That claim

is also irreconcilable with § 404 of the Act, which expressly

applies the Act’s point source permit program to the “dis-

charge of dredged ... material,” a practice described by

legislative history as “moving spoil material from one place

in the waterway to another, without the interjection of new

pollutants.” Appellate decisions have consistently held that

relocation of dredged material from one place in United

States waters to another constitutes an “addition” triggering

point source requirements.

There is no merit in petitioner’s attempt to invoke a

federalism-driven clear statement test like that applied in

Solid Waste Agency of Northern Cook County v. U.S. Army

Corps of Engineers, 531 U.S. 159 (2001). Because the

Everglades wetlands at issue here are concededly “naviga-

ble waters” entitled to the Act’s protection, application of

the point source requirement to control undisputed ad-

verse water quality impacts to those waters constitutes a

legitimate exercise of Congress’ power to protect the

channels of commerce from injurious uses.

Moreover, Congress built a prominent state role into the

Act’s point source permit program. Permits are issued by

Florida, applying the state’s own water quality standards

and its judgments about technology-based requirements. The

modest degree of accountability built into the program is

fully appropriate given the legitimate federal interest in

protection of the Everglades and other priceless waters.

ARGUMENT

I. ON THE FACE OF §§ 301(a) AND 402(a), AS

ELUCIDATED BY USAGE OF THE TERM

“DISCHARGE” IN § 401, S-9°S PUMPING CON-

STITUTES THE “DISCHARGE OF ANY POL-

LUTANT.”

The applicability of §301(a)’s prohibition, and

§ 402(a)’s NPDES permitting authority, both hinge on

whether there has been a “discharge of any pollutant.” As

we show below, it is indisputable that (1) S-9’s pumping

constitutes a “discharge,” and (2) the phosphorus con-

tained in the pumped water constitutes a “pollutant.”

Thus, petitioner’s position amounts to the implausible

claim that a discharge containing a pollutant does not

constitute the “discharge of any pollutant.”

A. S-9’s Pumping Constitutes a Discharge.

Petitioner and its allies spend virtually all their

attention on the definition of “discharge of a pollutant,”

§ 502(12), offering various parsings of that definition’s

terms (such as “addition”). While their analysis of the

§ 502(12) definition is fundamentally flawed for reasons

discussed later in this brief, as an initial matter they err

by overlooking the statutory term “discharge” itself.

(1) The Statutory Term “Discharge” Must

Be Given Meaning, and That Meaning

Should Be Consistent With Usage Else-

where in the Act.

The flaw in petitioner’s approach is demonstrated by

the same SWANCC decision upon which petitioner itself so

prominently relies. There the Court construed “navigable

waters,” which is defined in § 502(7) as “the waters of the

United States, including the territorial seas.” However, the

Court rejected an argument that, given the § 502(7) defini-

tion, “the use of the word navigable in the statute does not

have any independent significance.” 531 U.S. at 172

(quoting Solicitor) (ellipses and internal quotations omit-

ted). The Court concluded: “We cannot agree that Con-

gress’ separate definitional use of the phrase ‘waters of the

United States’ constitutes a basis for reading the term

‘navigable waters’ out of the statute.” Id. (emphasis added).

So here. The operative phrase in both § 301(a) and

§ 402(a) speaks of “discharge.” Under SWANCC, that word

cannot be read “out of the statute” simply because it is

statutorily defined. On the contrary, “discharge” must be

given meaning.

Moreover, that meaning should comport with usage

elsewhere in the Act. Significantly, § 401(a) requires a state

certification for any activity “which may result in any dis-

charge into the navigable waters.” (Emphasis added). Under

this Court’s precedent, the “normal rule of statutory con-

struction” is that “identical words used in different parts of

the same act are intended to have the same meaning.” See,

e.g., Desert Palace v. Costa, 123 S.Ct. 2148, 2155 (2003)

(citations and internal quotations omitted). As shown below,

petitioner’s interpretation would give the term “discharge” in

§§ 301(a) and 402(a) a meaning dramatically different from

the one it has in § 401(a).

(2) Both the Plain Meaning of the Term, and

Usage of the Same Term in § 401(a), Con-

firm That S-9’s Pumping Constitutes a

”

“Discharge.

The plain meaning of “discharge,” and usage of that

same term in § 401(a), lead inescapably to the conclusion

that S-9’s pumping constitutes a “discharge.”

Plain meaning. Though indicating that “(d]ictionary

definitions provide guidance to the meaning of the statute,”

Pet. Br. 26, petitioner never applies such a definition to the

statutory term “discharge.” However, Justice Scalia did so in

PUD No. 1 v. Washington Dept. of Ecology, 511 U.S. 700

(1994). As noted in the PUD majority opinion, it was undis-

puted that the passage of water through a dam’s tailrace

constituted a “discharge.” Jd. 711. Justice Scalia dissented on

another point, but did not disagree that there was a dis-

charge. To the contrary, he noted that “[tJhe term ‘discharge’

is not defined in the CWA, but its plain and ordinary mean-

ing suggests ‘a flowing or issuing out,’ or ‘something that is

emitted.’ Webster’s Ninth New Collegiate Dictionary 360

(1991).” Id. 725. The flowing or issuing out and emitting of

water from the proposed Elkhorn Dam in PUD met that test,

even though the water would not originate in the outside

world, but rather would flow from the river upstream of the

ee ee ee

dam to the river below it. Similarly, the flow of water and

pollutants through S-9, from one United States water (C-11)

to another (WCA3), meets that definition as well, and is thus

a “discharge.”

Section 401(a). PUD addressed Clean Water Act § 401,

which requires a state certification for any activity “which

may result in any discharge into the navigable waters.”

(Emphasis added.) The Court noted: “There is no dispute

that petitioners were required to obtain a certification from

the State pursuant to § 401. Petitioners concede that, at a

minimum, the project will result in two possible discharges,”

including “the discharge of water at the end of the tailrace

after the water has been used to generate electricity.” 511

U.S. at 711 (emphasis added). This conclusion is consistent

with lower court precedent finding that flow through dams

and other similar facilities constitutes a “discharge” within

the meaning of § 401(a). See, e.g., Alabama Rivers Alliance v.

FERC, 325 F.3d 290 (D.C. Cir. 2003). Under this approach, S-

9’s pumping of water and pollutants from C-11 to WCA3

clearly constitutes a discharge. As noted above, the “normal

rule of statutory construction” is that the term “discharge” in

§§ 301(a) and 402(a) should be construed consistently with

the same word in §401(a) — rather than diametrically

opposite as petitioner advocates.

B. The Water Pumped Through S-9 Contains

“Pollutants.”

As the Eleventh Circuit noted, “[nJo party disputes

that ... the water released by the [S-9] station contains

pollutants.” Pet. App. 4a-5a (emphasis added). In particu-

lar, it contains phosphorus, a common component of

“industrial, municipal, and agricultural waste.” § 502(6)

(defining “pollutant”).

Petitioner’s half-hearted attempt to retract that conces-

sion adds nothing to petitioner’s erroneous argument con-

cerning “discharge.” Specifically, petitioner argues that, once

a substance has been discharged into United States waters,

it stops being a “pollutant” and becomes “pollution.” Pet. Br.

28. However, given that a “discharge” can occur when water

passes from one side of a dam to the other, petitioner’s

argument is untenable. Because such water is itself being

“discharged,” the phosphorus contained in such water

constitutes “industrial, municipal, and agricultural waste

discharged into water” under the definition of “pollutant.”

§ 502(6) (emphasis added).

C. Discharge of Water Containing Pollutants

Constitutes the “Discharge of Any Pollut-

ant.”

Given that S-9’s pumping constitutes a “discharge,” and

that the discharge contains “pollutants,” it is untenable for

petitioner to contend that S-9 does not effectuate the “dis-

charge of any pollutant.” §§ 301(a), 402(a) (emphasis added).

Thus, petitioner’s attempt to tease that conclusion out of the

Act’s definition section (specifically, § 502(12), defining

“discharge of a pollutant”) should be approached with

considerable skepticism. As shown below, petitioner’s argu-

ments concerning the § 502(12) definition fall short.

II. S-9°S PUMPING FITS WITHIN THE § 502(12)

DEFINITION OF “DISCHARGE OF A POLLUT-

ANT.”

The Act defines “discharge of a pollutant” to encompass

inter alia “any addition of any pollutant to navigable waters

from any point source.” § 502(12). Petitioner’s attempts to

draw support from this definition are meritless.

A. §S-9’S Discharge Constitutes the “Addition”

of Pollutants to United States Waters.

Petitioner prominently relies on the definition’s use of

“addition,” claiming that the pollutants contained in S-9’s

pump water were already present in the C-11 canal and

thus are not “add[ed]” to navigable waters by S-9. This

argument is meritless.

(1) Circuit Precedent Unanimously Holds

That Diversions Between Waterbodies

Constitute “Additions.”

Decisions of at least four circuits have recognized that

diversions constitute “additions.” Beyond the Eleventh

Circuit decision under review here, and the First and

Second Circuit decisions discussed in petitioner’s brief,’

the D.C. Circuit recently held that an “addition” occurs

when water flows through a dam.

In Alabama Rivers, the D.C. Circuit addressed

whether there was a “discharge” requiring certification

under § 401(a). The project at issue — modification of a

hydroelectric facility - would produce “an increased flow of

water, and particularly of low dissolved oxygen (DO)

water.” 325 F.3d at 296. In construing § 401(a)’s term

“discharge,” the court “found the definition of ‘discharge of

a pollutant’ and ‘discharge of pollutants’ instructive as ‘the

nearest evidence we have of definitional intent by Con-

gress.” Id. 299 n.12 (citation omitted). That definition

includes the term “addition.” § 502(12).

* Dubois v. United States Department of Agriculture, 102 F.3d 1273

(1st Cir. 1996); Catskill Mountains Chapter v. City of New York, 273

F.3d 481 (2d Cir. 2001).

Under that standard, the “plain language” of § 401(a)(1)

compelled the conclusion that

Alabama Power’s installation and operation of

the new turbine generators at its Martin Dam

Project is an “activity ... which may result in

any discharge” within the meaning of section

401(a\(1). As discussed above, “the word ‘dis-

charge’ contemplates the addition ... of a sub-

stance or substances” into the navigable waters.

Here, the Commission concluded that the re-

placement turbines would increase the flow of

water into the river by approximately 900 cfs.

Thus, at the very least, the replacement turbines

will release low DO water into the river at an in-

creased rate of 900 cfs. The installation and opera-

tion of the replacement turbines is therefore an

"activity that “may result in any discharge.”

Id. 299 (emphasis added; citation omitted).

Fhough heavily relying on a D.C. Circuit decision

issued twenty years earlier, National Wildlife Federation

v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), neither peti-

tioner nor the United States have seen fit to alert this

Court to that same court’s far more recent analysis of the

statutory term “addition” in Alabama Rivers.’

* Aside from Gorsuch, whose reasoning conflicts with the more

recent Alabama Rivers decision by the same court, petitioner also relies

prominently on National Wildlife Federation v. Consumers Power Co.,

862 F.2d 580 (6th Cir. 1988). That decision - which we submit was

erroneous — addresses only recirculation of water and pollutants out of

and back into a single water body. Moreover, Appalachian Power Co. v.

Train, 545 F.2d 1351, 1377 (4th Cir. 1976), though it opined (incorrectly)

on the term “addition,” did so in the context of reviewing effluent

regulations defining the proper terms of a point source permit — not

whether such a permit is required in the first instance.

a eee er es

(2) By Regulating Discharges of “Dredged

Material” and “Dredged Spoil,” the Act

Confirms That Discharges Need Not

Come From an Outside Source.

The Act’s treatment of “dredged material” and

“dredged spoil” confirms the error in petitioner’s argu-

ments concerning the term “addition.” Those statutory

provisions likewise refute the United States’ extraordinary

argument (at 19) that “{o)nce a pollutant is present in one

part of ‘the waters of the United States,’ its simple convey-

ance to a different part is not a ‘discharge of a pollutant’.

within the meaning of the Act.”

1972 Amendments. Enacted in 1972, § 301(a) prohib-

its the “discharge of any pollutant,” and § 502(6) defines

“pollutant” to include “dredged spoil.” Likewise enacted in

1972, § 404(a) authorizes the Secretary of the Army to

issue permits for the “discharge of dredged or fill mate-

rial.” (Emphasis added.) Contrary to petitioner’s and the

United States’ attempt to dismiss their relevance, these

two provisions are highly germane to this case, because

they are governed by the same statutory definition at issue

here — specifically, § 502(12), which defines “discharge of a

pollutant” as “any addition of any pollutant to navigable

waters from any point source.” (Emphasis added.)

The very nature of dredged spoil and dredged material

— as confirmed by longstanding EPA and Corps regulations

— is that they originate in United States waters. 40 C.F.R.

§ 232.2 (EPA regulation defines “dredged material” as

“material that is excavated or dredged from waters of the

United States”) (emphasis added). Accord, 33 C.F.R.

§ 323.2(c) (Corps regulation). Thus, any discharge of

dredged material inherently involves moving material that

originated in United States waters — not introducing

material to those waters from an external source.

Indeed, according to the sponsor of the floor amend-

ment that first proposed assigning the Corps permitting

authority over dredged material discharge, such discharge

involves “moving spoil material from one place in the

waterway to another, without the interjection of new

pollutants.” 117 Cong. Rec. 38854 (Nov. 2, 1971) (emphasis

added) (Sen. Ellender). Accord, id. 38853 (“The disposal of

dredged material does not involve the introduction of new

pollutants; it merely moves the material from one location

to another.”) (emphasis added).

1977 Amendments. The 1977 Amendments further

refute petitioner’s contention that an addition — and a

discharge — occurs only when material is introduced from

outside United States waters. Those amendments enacted

conditional exemptions for specified kinds of dredged

material discharges, § 404(f)(1), but provided that those

same discharges are subject to point source requirements

for toxics, § 404(f)(1) (citing CWA § 307, 33 U.S.C. § 1317),

and must obtain a point source permit where impacts on

United States waters would be significant. § 404(f)(2).

Tellingly, among the discharges that are subject to

point source requirements in the above-specified circum-

stances are several that involve relocation of dredged

material within the same waterbody. These include, for

example, discharges associated with “plowing” and “the

maintenance of drainage ditches.” § 404(f)(1)(A) and (C).

Moreover, Congress worded § 404(f)(1)(C) narrowly to

encompass only the “maintenance,” but not the construc-

tion, of drainage ditches. Thus, Congress confirmed that

ditch construction — which involves relocation of dredged

material over short distances — lacks even a conditional

exemption from permitting.‘ Congress’ treatment of ditch

construction further refutes petitioner’s claim that a

discharge occurs only when material is introduced from

outside of United States waters.

Finally, the 1977 Amendments added an exemption

for agricultural drainage, but limited it to “minor drain-

age.” § 404(f)(1)(A) (emphasis added). The drafters ex-

plained that “(t]he exemption for minor drainage does not

apply to the drainage of swampland or other wetlands.” S.

Rep. 370, 95th Cong., Ist Sess. 76 (1977).* Congress’ intent

to regulate discharges associated with agricultural drain-

age activities - which likewise typically involve relocation

of dredged material ov. short distances — offers yet

further evidence against petitioner’s claim that relocation

of pollutants within United States waters involves no

discharge at all.

Judicial precedent. A series of appellate decisions

extending back two decades has without exception found

that a discharge occurs when dredged material is relocated

from one place in United States waters to another. Indeed,

those decisions have unanimously confirmed that a dis-

charge occurs when dredged material is relocated within a

single waterbody.

The seminal case of Avoyelles Sportsmen’s League v.

Marsh, 715 F.2d 897 (5th Cir. 1983), held:

No one has urged here that the materials must

come from an external source in order to consti-

tute a discharge necessitating a § 404 permit, nor

* Accord, 123 Cong. Rec. 26712 (August 4, 1977) (Senator Muskie).

* Accord, 123 Cong. Rec. 26767 (August 4, 1977) (Senator Muskie);

id. (Senator Dole).

would we expect them to, since § 404 refers to

“dredged” or “fill” material. ... “(D]redged” ma-

terial is by definition material that comes from

the water itself. A requirement that all pollutants

must come from outside sources would effectively

remove the dredge-and-fili provision from the

statute.

Id. 924 n.43 (emphasis added).

Relying on this principle, Avoyelles and other appel-

late decisions have found that relocating dredged or fill

material within a single waterbody constitutes an “addi-

tion.” See, e.g., Avoyelles, 715 F.2d at 920-26 (relocation of

soil and other material within wetland constituted a

discharge); United States v. M.C.C. of Florida, 772 F.2d

1501, 1505-06 (11th Cir. 1985), vacated on other grounds,

481 U.S. 1034 (1987), discharge analysis reaffirmed on

remand, 848 F.2d 1133 (11th Cir. 1988) (tugboat propellers

added dredged material by stirring up sediment that then

settled on adjacent seagrass beds); United States v.

Deaton, 209 F.3d 331 (4th Cir. 2000) (relocation of dredged

material from a ditch to the edge of the ditch constituted

an “addition”); United States v. Huebner, 752 F.2d 1235,

1241-43 (7th Cir. 1985) (§ 404 permit required for use of

earthmoving equipment to spread soil around wetlands);

United States v. Brace, 41 F.3d 117, 127-29 (3d Cir. 1994)

(same); Borden Ranch Partnership v. U.S. Army Corps of

* Petitioner argues unpersuasively that M.C.C. is distinguishable

because it involved the use of boat propellers to “rip up sediment.” Pet.

Br. 30 n.4. To the contrary, because the sediment indisputably origi-

nated in United States waters, M.C.C. stands as strong refutation of

petitioner’s and the United States’ argument that a discharge exists

only when pollutants are introduced into United States waters from an

outside source.

‘15

Engineers, 261 F.3d 810 (9th Cir. 2001), aff’d, 537 U.S.

999 (2002) (same).

Even the most restrictive appellate decision on the

issue agrees that relocation of dredged material within

United States waters — indeed, within a single waterbody

— can constitute an addition. In National Mining Assn. v.

U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir.

1998), the court held that “incidental fallback,” which

occurs when dredged material is returned “virtually to the

~spot from which it came,” id. 1403 (emphasis added), does

not constitute an “addition.” Jd. 1405. However, the court

confirmed that relocation of dredged material to a different

spot — even within the same waterbody — can constitute an

“addition” and thus a discharge.

For example, National Mining expressly confirmed

that it did not intend to question the regulation of “rede-

posits at some distance from the point of removal.” 145

F.3d at 1407 (emphasis added). The amount of relocation

the National Mining court considered sufficient to trigger

§ 404 jurisdiction was minimal. Jd. 1407, 1402 (confirming

that the court was not questioning § 404 jurisdiction over

“sidecasting,” a practice that “involves placing removed

soil ... by the side of an excavated ditch”). Likewise,

National Mining expressly confirmed that plowing -

which likewise involves minimal relocation of dredged

material — can constitute an “addition.” Jd. 1405.

In short, Congress’ express provision for regulation of

discharges of “dredged spoil” and “dredged material”

stands in strong refutation to petitioner’s and the United

States’ argument that an “addition” occurs only when

pollutants are introduced into United States waters from

an outside source.

B. S-9 Is a “Point Source.”

As the Eleventh Circuit observed, “/nJo party disputes

that the S-9 pump station and, in particular, the pipes

from which water is released constitute a point source.”

Pet App. 4a-5a (emphasis added). Indeed, no other conclu-

sion is possible given the Act’s broad definition of point

source as “any discernible, confined and discrete convey-

ance, including but not limited to [inter alia] any pipe,

ditch, channel, tunnel, [or] conduit.” § 502(14) (emphasis

added).

C. Pollutants Are Added to WCA3 “From” S-9.

Noting § 502(12)’s reference to addition of a pollutant

“from” a point source, petitioner argues that pollutants are

not being added to WCA3 “from” S-9: “The S-9 pump

station is not the starting point, source, or origin of any

pollutants. Any pollutants are added to the navigable

waters of the C-11 Canal from other sources within the

surrounding area or already exist in the environment.”

Pet. Br. 27 (internal quotations omitted). As the United

States correctly points out, however, a point source is by

express statutory definition a “conveyance,” § 502(14),

thus “signiflying] that a point source itself need not

generate or be the originating source of the pollutant.”

U.S. Br. 21 (emphasis added). Petitioner does not and

could not deny that Congress intended the NPDES point

source program to encompass municipal sewage treatment

plants and stormwater systems — both of which convey

‘ rather than originate pollutants. U.S. Br. 22 n.6 (citing

CWA §§ 301(b)(1)(B) and 402(p)).

—- —— <a

III. SECTION 304(f)(2)(F) OFFERS NO BASIS FOR

OVERRIDING THE ACT’S SUBSTANTIVE PRO-

VISIONS CONCERNING DISCHARGE OF POL-

LUTANTS.

Petitioner and the United States rely heavily on

§ 304(f)(2) in arguing that diversions constitute nonpoint

source pollution, rather than the discharge of pollutants.

However, § 304(f) on its face is an “information” provision

that does not purport to amend the Act’s substantive

provisions, or to define the terms used therein. Moreover,

the word “nonpoint” appears only in § 304(f)(1), not in

§ 304(f)(2) or the prefatory language introducing § 304(f).

Beyond these fundamental objections, petitioner’s

argument suffers from another fatal flaw. Section 304(f)(2)

cannot possibly be construed as a list of exclusively non-

point source problems, because the listed items include

several that plainly involve point source discharges. For

example, § 304(f)(2)(F) its’ .f references the “the construc-

tion of dams, levees, channels, causeways, or flow diver-

sion facilities,” which plainly involves point source

discharges. See, e.g., Minnehaha Creek Watershed District

v. Hoffman, 597 F.2d 617, 624-27 (8th Cir. 1979) (construc-

tion of dams involved “discharge of dredged or fill mate-

rial” requiring a permit under § 404); 33 C.F.R. § 323.2(f)

(Corps’ definition of “discharge of fill material” includes

several items enumerated in § 304(f(2)F) — specifically,

“dams,” “levees,” and “causeways”). Likewise, other sub-

paragraphs of § 304(f)(2) reference “agricultural

activities” and “mining activities,” which under the ex-

press terms of the Act involve point source discharges. See

§§ 502(14) (definition of “point source” includes “any ...

concentrated animal feeding operation”); 301(p) (providing

for discharge permits for certain mining-related discharges),

402(1(2) (exempting certain mining-related discharges

from §402 permit requirements, but only where such

discharges “are not contaminated by contact with, or do

not come into contact with, any overburden, raw material,

intermediate products, finished product, byproduct, or

waste products located on the site of such operations.”).

Finally, in their focus on the purely informational

§ 304(f)(2), petitioner and the United States have entirely

overlooked a different Clean Water Act provision that

expressly addresses the relationship between flow changes

and the point source permit requirement — and does so in a

way that cuts diametrically against petitioner’s and the

United States’ proffered interpretation. Enacted in 1977,

§ 404(f) provides that discharge of dredged or fill material

associated with various listed activities is conditionally

exempt from the § 301(a) discharge prohibition and the

§ 402(a) and 404(a) permit requirements, § 404(f)(1), but

cautions:

Any discharge of dredged or fill material into the

navigable waters incidental to any activity hav-

ing as its purpose bringing an area of the navi-

gable waters into a use to which it was not

previously subject, where the flow or circulation

of navigable waters may be impaired or the reach

of such waters be reduced, shall be required to

have a permit under this section.

§ 404(f(2) (emphasis added). This provision expressly

recognizes that point source discharges can involve im-

pairment of the flow or circulation of navigable waters,

and requires that such discharges have a point source

permit.

IV. THE RULES OF STATUTORY INTERPRETA-

TION FAVOR THE APPLICABILITY OF THE

ACT’S POINT SOURCE PROVISIONS TO S-9.

Petitioner offers three principles of statutory interpre-

tation that allegedly militate against applicability of point

source requirements to S-9. All of these arguments are

meritless.

A. Applicability of Point Source Require-

ments to S-9 Is Well Within Congress’

Commerce Clause Power Over the Con-

cededly Navigable Waters at Issue Here,

and Thus Does Not Implicate Federalism-

Driven Clear Statement Principles.

Petitioner (at 34-37) seeks to invoke the federalism-

driven “clear statement” test discussed in SWANCC. The

foregoing discussion shows that the Act’s point source

provisions clearly apply here, and thus would meet that

test. However, consideration of the waters, the activities, and

the statutory program at issue here confirms the inapplica-

bility of federalism-driven clear statement principles.

The Waters at Issue. Petitioner’s clear stateinent

argument ignores a fundamental difference between

SWANCC and this case. There, the dispute was whether

certain waters — an “abandoned sand and gravel pit”

described by the Court as “nonnavigable, isolated, intra-

state waters,” 531 U.S. at 166, 174 (emphasis added) —

were properly subject to point source requirements. That

was the context for SWANCC’s observation that, “[w]here

an administrative interpretation of a statute invokes the

outer limits of Congress’ power, we expect a clear indica-

tion that Congress intended that result.” Jd. 172 (empha-

sis added).

However, SWANCC left undisturbed United States v.

Riverside Bayview Homes, 474 U.S. 121 (1985), which

upheld point source jurisdiction over adjacent wetlands.

Explaining Riverside Bayview, SWANCC noted: “It was

the significant nexus between the wetlands and ‘navigable

waters’ that informed our reading of the CWA in Riverside

Bayview Homes.” 531 U.S. at 167 (emphasis added). Here,

such a nexus plainly exists: no one denies that WCA3

constitutes “navigable waters” under the Act. Accordingly,

protection of WCA3’s water quality is not at the “outer

limits” of the Act’s constitutional reach, and there is no

need to invoke a clear statement rule. To the contrary,

protection of “navigable waters” is a core and legitimate

concern of the Act.

Indeed, that principle was recently confirmed by the

Fourth Circuit, which held that clear statement principles

do not govern the United States’ application of Clean

Water Act point source requirements to certain wetlands.

United States v. Deaton, 332 F.3d 698, 704-08 (4th Cir.

2003). Having determined that the wetlands were within

Congress’ Commerce Clause power, the court concluded

that application of point source requirements

does not invade an area of authority reserved to

the states. The power to protect navigable waters

is part of the commerce power given to Congress

by the Constitution, and this power exists along-

side the states’ traditional police powers. “Al-

though States have important interests in

regulating ... natural resources within their bor-

ders, this authority is shared with the Federal

Government when the Federal Government exer-

cises one of its enumerated powers.... ” Minne-

sota v. Mille Lacs Band of Chippewa Indians, 526

U.S. 172, 204, 143 L. Ed. 2d 270, 119 S. Ct. 1187

(1999).

eee =

er NE Sl Bally ae be

Id. 707-08 (emphasis added). In short, application of point

source requirements to navigable waters “does not invoke

the outer limits of Congress’s power or alter the federal-

state framework,” and thus “does not present a serious

constitutional question that would cause us to assume that

Congress did not intend to authorize the regulation.” Id.

708 (emphasis added).

The Activities at Issue. While not disputing that the

waters at issue are well within the Commerce Clause,

petitioner erroneously argues that some subset of activities

affecting those waters — specifically, those involving “water

management and allocation” — should be singled out and

subjected to federalism-driven clear statement principles.

Pet. Br. 35.

First, the circumstances of this case belie the conten-

tion that it only addresses “concern[s] of the States.” See

Pet. Br. 35 (emphasis added). The Corps of Engineers built

the facilities at issue here (the S-9 pump, C-11 canal, and

the L-33 and L-37 levees) pursuant to federal statute;

those facilities are governed by planning requirements

established by the Secretary of the Army pursuant to

federal statute; and huge sums of federal funds are being

spent in the process. Pet. App. 3a; U.S. Br. 7-9. These are

not tenable circumstances for an argument that point

source regulation would intrude into matters of purely

state or local interest.

Nor can the applicability of clear statement canons

hinge on whether petitioner believes the activity at issue

to be “traditional.” See Pet. Br. 35. Aside from the obvious

implausibility of positing a “tradition” of modern technolo-

gies (in this case, huge mechanized pumps), our environ-

mental statutes would be eviscerated if “traditional”

activities were insulated from regulation. After all, piping

untreated sewage and industrial effluent into rivers was

“traditional” before passage of the Act, but petitioner does

not argue that federalism concerns are implicated by

regulating those practices.

Finally, it is crucial to remember that the waters at

issue here — unlike SWANCC’s abandoned sand and gravel

pit — are undisputedly a legitimate object of federal protec-

tion. The notion that some activities injurious to those

waters should be singled out for a federalism-driven clear

statement rule is meritless.

Thus in Deaton, the Fourth Circuit noted SWANCC’s

observation that “Congress enacted the Clean Water Act

under ‘its traditional jurisdiction over waters that were or

had been navigable in fact or which could reasonably be so

made,’” 332 F.3d at 706 (quoting SWANCC, 531 U.S. at

172), and found that “[t]he power over navigable waters is

an aspect of the authority to regulate the channels of

interstate commerce.” This is significant, because “Con-

gress’s power over the channels of interstate commerce,

unlike its power to regulate activities with a substantial

relation to interstate commerce, reaches beyond the

regulation of activities that are purely economic in na-

ture.” Jd. In particular, “the authority of Congress to keep

the channels of interstate commerce free from immoral

and injurious uses has been frequently sustained.” Jd.

(emphasis added) (quoting Caminetti v. United States, 242

U.S. 470, 491 (1917)).

Applying that principle to the Clean Water Act, the

Fourth Circuit found a federalism-driven clear statement

rule unwarranted. In particular, “Gongress’s authority

over the channels of commerce is . . . broad enough to allow

it to legislate, as it did in the Clean Water Act, to prevent

the use of navigable waters for injurious purposes.” Id.

707 (emphasis added). The injurious purposes addressed

by the Act encompass “degrad[ation of] the quality of the

navigable waters.” Jd. (emphasis added).

It is undisputed that the activity at issue here —

pumping phosphorus-laden water into navigable water

that serves as a natural conservation area — is injurious to

the Act’s core water quality goals. Pet. Br. 13 (“Urban and

agricultural development has introduced pollutants into

the ecosystem at rates that cannot be assimilated. The

resulting imbalance of the ecosystem is manifest in de-

clined faunal populations and an increase in invasive

flora.”). Thus, application of point source requirements to

that activity does not “invoke[] the outer limits” of Con-

gress’ power, see SWANCC, 531 U.S. at 172, and federal-

ism-driven clear statement principles do not apply.

Indeed, invocation of federalism principles here would

reduce them to a caricature. Surely the applicability of

constitutionally driven clear statement canons cannot turn

on such details as whether phosphorus is piped into WCA3

from other United States waters or from a source outside

of those waters. See Pet. Br. 31-32. In either case, waters

of the United States - in whose protection there is a

legitimate federal interest — are degraded.

The Program at Issue. Petitioner's federalism

argument relies heavily on CWA §101(b)’s “policy” of

preserving state prerogatives. As initial matter, petitioner

errs in suggesting that a policy can shunt aside the Act’s

substantive point source provisions. See, e.g., New York v.

FERC, 535 U.S. 1, 22 (2002) (federalism savings clause in

Federal Power Act is “a mere policy declaration that cannot

nullify a clear and specific grant of jurisdiction, even if the

particular grant seems inconsistent with the broadly

expressed purpose”) (citation and internal quotations

omitted).’

Moreover, if the Act’s policies are to guide interpreta-

tion, petitioner fails to explain why the Act’s central

objective to restore and maintain the integrity of United

States waters (§ 101(a)) should not carry the day. See, e.g.,

Chao v. Mallard Bay Drilling, 534 U.S. 235, 245 n.9 (2002)

(rejecting interpretation that would narrow a regulatory

statute’s protective reach: “Such large gaps in the regula-

tion of occupational health and safety would be plainly

inconsistent with the purpose of the OSH Act.”); US

Airways v. Barnett, 535 U.S. 391, 397 (2002) (rejecting

reading under which statutory provision “could not accom-

plish its intended objective”); Norfolk & Western Rwy. Co.

v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1225, 1228 (2003)

(rejecting reading “inconsistent with the Act’s overall

recovery facilitating thrust” in favor of one that “accords

with the [Act]’s overarching purpose”).

But even if the Act’s federalism policy were accorded

substantive effect, application of point source permitting

requirements is fully consistent with it. In multiple ways,

Congress built a prominent state role into the Act’s point

source program.

First, Congress expressly provided that states can

assume authority to implement the NPDES program,

§ 402(b) and (c) — as indeed Florida and 44 other states

” Likewise, the § 101(g) provision addressing allocation of “quanti-

ties” of water is expressly presented as a “policy” - and in any event

does not control this case, which involves application of NPDES

requirements to protect water quality. See PUD, 511 U.S. at 720-721.

{

have done.* The authors of the 1972 Act stressed that

“permits granted by States under section 402 are not

Federal permits — but State permits.” H.R. Rep. No. 911,

92d Cong., 2d Sess. 127 (1972) (emphasis added).

Congress’ decision to allow delegations of § 402 au-

thority to states is no mere incidental feature of the 1972

Act, but is integral to Congress’s intent. Indeed, § 101(b) —

the very provision relied on by petitioner — confirms “the

policy of Congress that the States ... implement the

permit programs under sections 1342 and 1344 [§§ 402

and 404].” (Emphasis added.)

Significantly, when the 1972 Amendments were

enacted, the Corps was beginning to implement an ex-

panded federal permitting program under the 1899 Refuse

Act. The legislative history expresses Congress’ intent that

the federal-state balance be restored by allowing states to

administer the Act’s discharge permitting program. See,

e.g., 1972 House Rep. at 125 (criticizing the Refuse Act’s

“total usurpation of enforcement of water quality control

by the Federal Government” as “inconsistent with the

Federal-State partnership that is necessary if we are ever

to have clean and safe waters”; instead, “(t]he role of the

States must be clearly recognized”). See also S. Rep. 414,

92d Cong., Ist Sess. 70-72 (1971); 117 Cong. Rec. 38798

(Nov. 2, 1971) (Sen. Muskie); id. 38808 (Sen. Montoya); 118

Cong. Rec. 10662 (March 28, 1972) (Cong. Roe).

Not only are states permit issuers, they also serve a

key role in establishing the content of permits — both

* See http,/cfpub.epa.gov/npdes/statestats.cfm. Section 404 likewise

allows delegation of dredge-and-fill permitting authority to states.

§ 404(g) and (1 ). See Minnehaha, 597 F.2d at 627.

water-quality based and technology-based. First, in

contrast to the federal air quality standards mandated two

years previously by the 1970 Clean Air Act, see Train v.

Natural Resources Defense Council, 421 U.S. 60, 64-65

(1975), the authors of the 1972 Water Act opted for state

water quality standards. § 303(a)-(c). To meet these state

standards, Congress provided for state pollution caps

(“total maximum daily loads”). § 303(d).

As for technology-based requirements, the Act does

provide for national standards — but has built-in flexibility

in the form of feasibility tests. See, e.g., §§ 301(b), 304(b),

306(aX(1). Moreover, for categories like diversions, for

which national standards have not been promulgated,

technology-based requirements are set on a case-by-case

basis by the permit writer — which, in Florida and the

other 44 delegated states, is the state. See 40 C.F.R.

§§ 122.44(aX(1), 125.3(c\2); Milwaukee v. Illinois, 451 U.S.

304, 324 (1981) (where “EPA ha[d] not promulgated

regulations mandating specific control guidelines [for

sewer overflows] because of a recognition that the problem

is ‘site specific,” Court noted that “[dJecision is made on a

case-by-case basis, through the permit procedure.”) (em-

phasis added).

Thus, state agencies issue state permits, applying state

judgments about technology-based requirements and

implementing state water quality standards and state

TMDLs. Moreover, state courts review these permits. 40

C.F.R. § 123.30. Given the pervasiveness with which

Congress designed a state role into the very core of the

point source program, there is no valid basis for using

federalism principles to shunt that program aside.

In short, the present case is not appropriate for federal-

ism-driven clear statement rules, instead presenting a

See ee —

normal statutory interpretation issue. See, e.g., Egelhoff v.

Egelhoff, 532 U.S. 141, 151 n.4 (2001) (rejecting suggestion

that “the resolution of this case depends on one’s view of

federalism;” instead, “we are called upon merely to inter-

pret ERISA”). Accord, United States v. Oakland Cannabis

Buyers’ Cooperative, 532 U.S. 483, 494 n.7 (2001).

B. Exempting S-9’s Pumping of Phosphorus-

Laden Stormwater From Point Source

Requirements Would Produce Absurd Re-

sults.

Petitioner claims that applying point source require-

ments to S-9 would produce “absurd” and “disastrous”

results. Pet. Br. 37-45. To the contrary, exempting S-9 from

those requirements would be absurd.

While petitioner, the United States, and other amici

spill much ink discussing other fact patterns they fear

might be swept into the Act’s point source requirements,

this case is about one facility only: S-9. According to the

United States itself, the question whether there has been

a discharge “depend[s] on the facts of the particular case.”

U.S. Br. 24 (emphasis added). This particular case

strongly counsels application of point source requirements

— and differs substantially from other hypotheticals posed

by petitioner and its allies.

Significantly, this case does not involve the “textbook

examples of nonpoint sources” — i.e., “various forms of

runoff, which reach waterbodies by flowing over or perco-

lating through topographical features.” U.S. Br. 5 n.1

(emphasis added). Nor does it involve a facility like a dam,

which passes water along a course it would have followed

naturally — i.e., from upstream to downstream. Finally, it

does not involve a practice lacking significant adverse

water quality impacts.

To the contrary, at issue here is a highly human-

controlled system under which phosphorus-laden runoff is

collected in human-made conveyances, and then pumped

several feet uphill into another waterbody — causing serious

degradation of water quality. Under these circumstances, it

would be absurd not to apply the Act’s point source require-

ments, whose very essence is to regulate the “conveyance” of

pollutants to protect the integrity of United States waters.

§§ 502(14), 101(a). Indeed, “Congress’ intent in enacting the

[1972] Amendments was clearly to establish an all-

encompassing program of water pollution regulation,” under

which “fejvery point source discharge is prohibited unless

covered by a permit.” Milwaukee, 451 U.S. at 318 (emphasis in

original; footnote omitted).

~ Because S-9 is already subject to permitting under

Florida law, see Pet. Br. 17, petitioner cannot credibly

argue that applying a permit requirement to S-9 is in itself

absurd. Instead, petitioner argues that the specific re-

quirements associated with the NPDES program — espe-

cially its technology-based requirements — were intended

to apply only to flows that are “continuous and of known

quantity,” Pet. Br. 39-40, and to the “original sources” of

pollutants rather than those who convey them. Pet. Br. 42-

43. See also U.S. Br. 27. This argument flies in the face of

the Act, which expressly confirms applicability of point

source requirements to stormwater and combined sewer

overflows, § 402(p)-(q) — both of which involve irregular

flows with varying pollutant loads that do not originate

with the discharging entity.’

Petitioner also claims that NPDES would interfere

with other ongoing programs to protect water quality. Pet.

Br. 40-42. To the contrary, the NPDES program would

foster compliance with water quality standards, see p. 26,

supra, thus serving one of the Act’s “cent:al objectives.”

Arkansas v. Oklahoma, 503 U.S. 91, 106 (1992). The

content of the permit would be established by Floride,

applying the state’s judgments concerning both water-

quality-based and technology-based requirements. See pp.

24-26, supra. The United States itself argues that the

NPDES program has “considerable flexibility,” that its

burdens “may be relatively modest,” and that it “may be

reconcilable with, and integrated into,” other ongoing

water quality efforts. U.S. Cert. Opp. 17-18. In short, three

decades after passage of the 1972 Act, and two decades

after the date by which Congress intended United States

waters to be fishable and swimmable, § 101(a)(2), there is

nothing “absurd” or “disastrous” about protecting Florida’s

navigable waters through the sensible accountability and

oversight associated with the NPDES program.

C. The Rule of Lenity Offers No Basis for

Narrowing the Reach of the Act’s Point

Source Provisions.

The rule of lenity cited by petitioner applies only

where a statute is ambiguous on the issue at hand.

* See US. Br. 22 n.6; Milwaukee, 451 US. at 324; http//www.cfpub2.epa.

id=5 sn

id=5.

United States v. Thompson/Center Arms Company, 504

U.S. 505, 517-18 (1992). On the issue cited by petitioner’s

rule-of-lenity discussion — namely, whether pollutants

have to “originate from the point source” (Pet. Br. 45) — the

Act is not at all ambiguous. See U.S. Br. 22 n.6 (discussing

the Act’s express provisions for permitting of sewage

treatment plants and stormwater systems).

CONCLUSION

The judgment of the Eleventh Circuit should be affirmed.

Respectfully submitted,

HOWARD I. Fox

EARTHJUSTICE

1625 Massachusetts Avenue, N.W.

Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Counsel of Record for Amici Curiae

National Wildlife Federation,

Natural Resources Defense Council

Sierra Club, American Rivers,

National Audubon Society,

National Parks Conservation

JAMES MURPHY

NATIONAL WILDLIFE FEDERATION

1400 16th Street, N.W., Suite 501

Washington, D.C. 20036

(202) 797-6893

Counsel for Amicus Curiae

National Wildlife Federation

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.