# Amicus Curiae Brief — South Florida Water Management District v. Miccosukee Tribe of Indians > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A34 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 539 U.S. 957 ## Text i 72 No. 02-626 In The Supreme Court of the Anited ¢ CLERK SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Petitioner, v. MICCOSUKEE TRIBE OF INDIANS, et al., Respondents. o 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 o 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- © GFN Ee ccoesneveescesseemncsrecsnesensseneesnenneenpecsones 8 III. ii 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 17 19 19 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 iv 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 v 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 vi 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 © Ge, BR Se ce GB ceenecencsnreernremation 1 1 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.’ S 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. 2 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). + 3 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 4 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,” 5 § 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 6 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 7 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”). 8 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. 9 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). 10 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 11 (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 12 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 13 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). 14 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. 16 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)). —- ——