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

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No. 02-626

IN THE

Supreme Court of the Anited States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner.

MICCOSUKEE TRIBE OF INDIANS, et a/.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

PROTECTION IN SUPPORT OF RESPONDENTS

LESLIE ANNE MILLER MICHAEL D. BEDRIN

General Counsel Chief Counsel

Commonwealth of Pennsylvania RICHARD P. MATHER, SR.*

PETER G. GLENN Assistant Counsel

Executive Deputy WILLIAM C. CUMINGS, JR.

General Counsel Assistant Counsel

K. SCOTT ROY Department of Environmental

Deputy General Counsel Protection

9th Floor, RCSOB

P.O. Box 8464

Harrisburg, PA 17105-8464

* Counsel of Record (717) 787-7060

ee ee ey

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the diversion of water containing pollutants

through a man-made point source from one distinct body of

water to another requires a National Pollutant Discharge

Elimination System (NPDES) permit under the federal Clean

Water Act, 33 U.S.C. § 1251 et seg., where the diverted water

containing the pollutants would not have entered the

receiving water but for the diversion.

(i)

TABLE OF CONTENTS

SONI S OCIS WUE ccncccssesccsscsccccessescessessessesscenee

FA Ge RTT EIee 6 ON ccccceccrseccecsscesesseccesessssecseoses

SUMMARY OF ARGUMENT...............:ccccceccscsseereneees

EE STE eee

ELEVENTH CIRCUIT CORRECTLY

DECIDED THAT A_ DIVERSION OF

WATER CONTAINING POLLUTANTS

FROM ONE DISTINCT WATER BODY

TO ANOTHER REQUIRES AN NPDES

A. Dams and water diversions within a

single water body are not implicated by

the Eleventh Circuit Decision ...................

B. Petitioner and United States have

radically different positions on the issue

a srcernsnssccnesssecssencemessnsenemeses

NPDES PERMIT PROGRAM ENABLES

PENNSYLVANIA TO PROTECT SURFACE

WATERS FROM INTERBASIN DIVER--

SIONS CONTAINING POLLUTANTS

THAT MAY DESTROY OR_ IMPAIR

DESIGNATED USES AND CAUSE

PRE OUIEY ctncsnsvescsvesscencessessecscessssecsscessesecesens

A. Since 1986 Pennsylvania has applied its

NPDES permit program to interbasin

IIIB ccccenmnssnsesescnssscsensscsvessmscsscssnees

(iii)

TABLE OF CONTENTS—Continued

B. The Department has adopted a formal

policy for permitting surface water

diversions to guide its efforts in applying

NPDES Permit requirements................00+++

C. NPDES Permit Program provides a

flexible, efficient and effective means to

regulate interbasin surface water

D. Recent amendments to Florida state law

highlight need for enforceable NPDES

permit to protect the environment.............

lil. THE UNIQUE FACTS OF THIS CASE

PROVIDE AN INDEPENDENT BASIS TO

AFFIRM THE ELEVENTH CIRCUIT'S

EI UINS cccccsescsconsccrsesvsssesssnsssnscnnsessnsesseassnssses

A. EPA’s NPDES regulations specifically

address surface runoff that is collected or

B. The C-11 (drainage) Canal is a man-

made drainage canal that collects and

channels runoff from the C-11 Basin........

SLIT ccccccccecsccesscessscerescsessensscsssnssssssnssssasssssses

CASES

TABLE OF AUTHORITIES

Page

Arkansas v. Oklahoma, 503 U.S. 91 (1992).......... 4

Catskill Mountain Chapter of Trout Unlimited v.

Committee to Save Mokelumne River v. East Bay

Municipal Utility District et al, (13 F.3d

305) (9th Cir. 1993), cert denied, 513 U.S.

a cncncnnennmensssnenensnsmataeensiumnimesenennnes 22, 23

Del-AWARE Unlimited v. DER, 508 A.2d 348

(Pa. Crwlth. 1986)..........cccccccessseseeeseesees 11, 12, 13,14

DuBois v. U.S. Dept. of Agriculture, 102 F.3d

1273, 1269-99 (1st Cir. 1996) ..........ccccccsseeeeeee 9

Environmental Defense Center v. EPA, 344 F.2d

Be el SED cnsnmmnnmveneneneenenmennen 17

Miccosukee Tribe of Indians et al. v. South Fla.

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

ee cnsennncscsmemunstemneesmemnnsiemmenans 2, 6, 7, 8,9

National Wildlife Federation v. Consumer

Power, 862 F.2d 580 (6th Cir. 1988)................. 8, 9, 23

National Wildlife Federation v. Gorsuch, 693

F.2d 156 (D.C. Cir. 1982)............cc-es00e 8,9, 12, 13, 23

Northern Plains Resource Council v. Fidelity

Exploration and Development Company, 325

8} a)

Rybachek v. EPA, 904 F.2d 1276 (9th Cir.

I cicasscaieatiaciasindeildabs end laeariaataniealeneaaataeames 17

STATUTES AND REGULATIONS

Federal

33 U.S.C. § 1251 et seqg., Clean Water Act ........... i

itera nihattaae ieee titaneneeniemeacins 6

atari rereeenienanies 22

33 U.S.C. § 1S LAC AZ) F)........ccerserreereersersenseeseenees 13

enemas

TABLE OF AUTHORITIES—Continued

Page

BP iis Ot TEE cumenennntensesstenieneeneneineee 6

BP ics OF Ce ee eeemmemen 18

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od) lS 10, 20, 22, 23

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oo 0 Dl) es EE 16

State

Pennsylvania

ee 14

5 Sane 14

NS I On 16

25 Pa. Code §§ 93.3.......... eeuapenbiianmatenendmeneaienne 3, 10

en 3, 10

a 3

25 Pa. Code $§ 93.9a-93.92Z.........cccccsseseseseesesseeeeees 10

30 Pa.B. 3122 (June 17, 2000)................cccccecceeeeees 16

32 Pa.B. 5999 (December 7, 2002) ...............00000008 17

32 Pa.B. 6000 (December 7, 2002) ................000000 16

Florida

Fla. Admin. Code § 62.302-400 .000.......ccccccceeeeeeeees 24

Fla. Stat. § 373.4592(3), as amended ..............000+ 19

Fla. Stat. § 373.4592(9)(k) and (1) .............cceeeeeeeees 18, 19

GQ). Oe 18, 19

Pla. Seat. 6 ST SADIE AD) neccccccsccccccccsscesescssccceses 19

IN THE

Supreme Court of the Anited States

No. 02-626

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

Vv.

MICCOSUKEE TRIBE OF INDIANS, ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

PROTECTION IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI

The Commonwealth of Pennsylvania, Department of

Environmental Protection, (Department or Commonwealth)

respectfully submits this brief in support of Respondents

Miccosukee Tribe of Indians, et al. Amici Commonwealth

urges that the Court affirm the Eleventh Circuit’s decision

holding that the Clean Water Act (the “Act”) requires an

NPDES permit where a “point source” discharges water

' This Brief was prepared by the Pennsylvania Office of General Coun-

sel on behalf of the Department, and it is submitted with the written

consent of the parties. Rule 37(2) and (6) of the Supreme Court Rules.

Sup. Ct. R. 37(2) and (6).

containing pollutants from one distinct body of water to .

another in circumstances where, as here, the pollutants would

not have entered or affected the receiving body of water but

for the operation of the point source, even though the point

source is not the original source of the pollutants. See

Miccosukee Tribe of Indians et al. v. South Fla. Water Mgmt.

Dist., 280 F.3d 1364 (11th Cir. 2002). The NPDES permit

program provides a flexible, efficient, enforceable and

necessary means to protect the water quality and related uses

of Pennsylvania’s waters from impairment or pollution. A

contrary interpretation of the Act will leave largely

unregulated the human-induced transfer of lower-quality

water, or water with significantly different biological,

chemical or physical attributes, into higher-quality receiving

waters, and will create a significant gap in the Common-

wealth’s authority to protect and maintain the quality of its

waters under the Act.

In 1986, the Pennsylvania Courts held that Pennsylvania's

approved NPDES permitting program was applicable to the

interbasin diversion of water containing pollutants from one

body of water to another. Since 1986, the Department has

routinely applied its NPDES permit program to diversions of

such water from one distinct body of water to another and has

developed a formal guidance document for use in applying

these NPDES permitting requirements that provide needed

environmental protection. The regulated community in

Pennsylvania has routinely complied with the applicable

NPDES requirements relating to such diversions. The

Department seeks to maintain its full scope of authority to

regulate, through the Act, numerous situations which could

potentially have an adverse impact on the quality of a

receiving body of water such as: the transfer of salt water

into fresh water basins; the conveyance of water infested with

invasive species (e.g., zebra mussels) into a body of water

that is not; the pumping of warm, sediment-laden lake water

into a higher-altitude, high quality trout stream with cold and

clear water; and the man-induced drainage of collected waters

containing high levels of polluted runoff, including phos-

phorus, into separate and sensitive watersheds.

The Department has examined and classified each surface

water body within its boundaries to establish its “designated

uses” (e.g., aquatic life, water supply, recreation, fish con-

sumption, and special protection). 25 Pa. Code §§ 93.3, 93.9

and 93.9a-93.9z. The Department has promulgated water

quality criteria that specify maximum pollutant levels, as well

as narrative descriptions of water conditions, necessary for a

body of water to achieve the most critical use for which it has

been designated. 25 Pa. Code §§ 93.6-93.8. The Department

has issued thousands of NPDES permits that contain pollutant

limitations designed to protect designated uses and maintain

the quality of the specific body of water into which pollutants

are discharged.

Given these extensive efforts, the Department has a

significant ongoing interest in assuring that its finely-tuned

programs developed to assess, protect, and improve the water

quality of each surface water body within its borders are not

frustrated by an incongruous interpretation of the Act that

constrains State authority to control the transfer of pollutants

from lower-quality to higher-quality waters through the

NPDES permitting process. To allow the wholesale human-

induced mixing of waters with significantly different

chemical, biological or physical attributes to escape the Act's

permit requirements will undermine the Act’s comprehensive

approach to protecting and improving the Commonwealth's

surface waters.

The Department also has a strong interest in maintaining

the full strength of the Act’s permit requirement so as to

ensure a strong “national floor” of water quality controls.

These national requirements, supervised by EPA, prevent

States from relaxing their own standards and enforcement

efforts in an attempt to gain a perceived economic or market

advantage in the siting of industrial, commercial or other

facilities at the economic or environmental expense of other

States. Moreover, because watersheds do not respect political

boundaries, downstream States have a strong interest in

protecting their water bodies against the transfer of pollutants

originating in upstream States. Under the Act, downstream

states have the ability to participate and advocate within

NPDES permit processes in matters concerning pollutant dis-

charges proposed in upstream States. Arkansas v. Oklahoma,

503 U.S. 91 (1992).

SUMMARY OF ARGUMENT

The Eleventh Circuit’s decision that an NPDES permit is

required for a diversion of water, containing pollutants, from

one distinct body of water to another through a point source is

consistent not only with the Clean Water Act, but also

with longstanding Pennsylvania case law and practice.

Pennsylvania case law requires an NPDES permit where a

point source changes the natural flow of a body of water

which contains pollutants and causes that water to flow into

another distinct body of water into which it would not have

otherwise flowed. That point source is the cause-in-fact of

the discharge of pollutants, and, because the pollutants would

not have entered the second body of water but for the change

in flow caused by the point source, an addition of pollutants

from a point source occurs triggering the NPDES permit

requirement.

The Department has for the past seventeen years applied its

NPDES permitting program to diversions of surface water

containing pollutants from one body of water to another. The

Department requires an NPDES permit and evaluates the

adverse impacts of a proposed diversion to provide necessary

protection to the water quality and designated uses of

Pennsylvania’s surface waters.

The analysis for evaluating the applicability of the NPDES

permit program to dams and dam-induced water quality

changes that Petitioners attempt to use in this case is

distinguishable from the case before the Court. Outside of

the dam context, various Courts of Appeal have consistently

held that an interbasin transfer of water containing pollutants

through a point source requires an NPDES permit.

The NPDES permitting program provides a flexible,

efficient, enforceable and necessary means to protect the

water quality and designated uses of surface waters. Since

1986, Pennsylvania has not experienced any of the litany of

problems that Petitioner and its Amici Curiae predict. The

NPDES permit program authorizes the use of general permits

that can be issued quickly without significant administrative

burden, and many of the NPDES permits also authorize the

use of Best Management Practices (BMP’s) in place of more

traditional numeric effluent limitations in appropriate

situations. The NPDES permit program also expressly

authorizes compliance schedules where a permittee needs

additional time to achieve compliance. An NPDES permit

provides an effective and enforceable means to protect water

quality that is lacking under Florida state law that is subject

to change.

An independent basis to affirm the Eleventh Circuit exists

under the unique facts of this case. To allow human

habitation in a portion of the Everglades within the C-1]

Basin, a drainage canal system, levees and a pump drained a

portion of the Everglades. The drainage canal system, levees

and pump maintain the water levels below historic levels by

channeling and collecting runoff and related seepage from

adjoining areas where water levels are maintained at higher

levels. EPA’s NPDES regulations define “discharge of a

pollutant” (triggering an NPDES permit requirement) as

including “surface runoff collected or channeled by man.”

The unique facts of this case fit within this regulatory

definition, and an NPDES permit is therefore required under

EPA’s regulations.

ARGUMENT

I. ELEVENTH CIRCUIT CORRECTLY DECIDED

THAT A DIVERSION OF WATER CON-

TAINING POLLUTANTS FROM ONE

DISTINCT WATER BODY TO ANOTHER

REQUIRES AN NPDES PERMIT.

The Clean Water Act prohibits the discharge of pollutants

from a point source without an NPDES permit. 33 U.S.C.

§§ 1311, 1342. The term “discharge of a pollutant” is defined

by statute as “ . . .any addition of any pollutant to navigable

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

The Eleventh Circuit correctly applied these requirements and

decided that a diversion of water containing pollutants from

one distinct water body to another requires an NPDES permit.

Miccosukee Tribe, 280 F.3d at 1368-1369.

The underlying facts in this case, which are not in dispute,

support the Eleventh Circuit’s decision. Miccosukee Tribe,

28 F.3d at 1366-1367; Petitioner’s Brief at pages 5-17; and

United States’ Brief at pages 6-12. The Petitioner (South

Florida Management District or SFWMD) is the local sponsor

of the Army Corps of Engineers (Corps) Central and

Southern Florida Project (CCSF Project), a vast system of

levees, canals, water impoundments and other water control

structures. SFWMD operates these water control facilities in

southern Florida, which has unique hydrologic characteristics.

The dispute in this case arises from SFWMD’s operation of

water control facilities that are part of the CCSF Project.

These facilities channel, collect and transport “excess” or

“accumulated” water from the C-1! Basin through the C-11

(drainage) Canal that drains an area that was once part of the

Everglades. The “excess” or “accumulated” water is runoff

from the C-11 Basin and seepage from the neighboring

WCA-3A area where the water levels are maintained at

higher levels. SFWMD discharges the “excess” or “accum-

ulated” water from the C-11 (drainage) Canal by means of the

S-9 Pump which discharges over the C-33 and C-37 levees,

into WCA-3A. This pumped discharge contains excessive

levels of phosphorus, a pollutant, that adversely affects the

water quality of WCA-3A. Without the S-9 Pump that

discharges water from the C-11 (drainage) Canal, the C-11

Basin could flood within days. Without the S-9 Pump, the

runoff in the C-11 (drainage) Canal would not discharge into

the WCA-3A.

In the decision below, the Eleventh Circuit found that the

parties agreed that the S-9 Pump was a point source, that the

pumped discharge contains pollutants (phosphorus) and that

the C-11 (drainage) Canal and the WCA-3A are navigable

waters under the Clean Water Act. Miccosukee Tribe, 280

F.3d at 1367. The parties also agree that the discharge of the

pollutants is adversely affecting the WCA-3A. The parties

disagree on one legal issue: “whether the pumping of already

polluted water constitutes an addition of pollutants to

navigable waters from a point source.” Miccosukee Tribe, 28

F.3d at 1367. (italics in original).

The Eleventh Circuit correctly held that “When a point

source changes the natural flow of a body of water which

contains pollutants and causes that water to flow into another

distinct body of navigable water into which it would not have

otherwise flowed, that point source is the cause-in-fact of the

discharge of pollutants. And, because the pollutants would

not have entered the second body of water but for the change

in flow caused by the point source, an addition of pollutants

from a point source occurs.” Miccosukee Tribe, 280 F.3d at

1368-1369. (italics in original) Thus, an interbasin dive: sion

of surface water containing pollutants by means of a point

source is subject to NPDES permitting.

A. Dams and water diversions within a single

water body are not implicated by the Eleventh

Circuit Decision.

Several of the Amici (who support the Petitioner) erron-

eously assert that the Eleventh Circuit decision in this case

affects dams and water diversions within a single water

body.” The decision of the Eleventh Circuit does not affect

dams or the natural flow of water within a single water body.

The decision recognized EPA’s longstanding position on

“dams and dam induced water quality changes” that was

given deference in earlier decisions,’ but it concluded:

We know of no instance in which the EPA has extended

its policy on dams and dam-induced water-quality

changes to facilities like the S-9 pump station. The EPA

is no party to this case; we can ascertain no EPA

position applicable to S-9 to which to give any

deference, much less Chevron deference.

Miccosukee Tribe, 280 F.3d at 1367, n. 4 (italics in original).

Thus, the Eleventh Circuit Court of Appeals decision merely

refused to extend EPA’s policy on dams and dam-induced

water quality changes to the S-9 Pump discharge from the C-

1 1(drainage) Canal. The Miccosukee Tribe decision does not

affect or implicate EPA’s policy concerning dams and dam-

induced water quality changes that occur within a single body

of water.

There is no basis to extend EPA’s dams and dam-induced

water quality changes policy in this case. EPA’s longstand-

ing dam policy provides that an NPDES permit is not

required for dams or dam-induced water quality changes

because the changes to water quality are caused by the dam.

* Brief of Amici City of New York et al at page 13.

> National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir.

1982); National Wildlife Federation v. Consumer Power, 862 F.2d 580

(6th Cir. 1988).

National Wildlife Federation v. Gorsuch, 693 F.2d at 165-

170, National Wildlife Federation v. Consumer Power, 862

F.2d at 585, 587. The inherent nature of dams and

impounded water cause the water quality changes and these

changes, induced or caused by the dam, do not constitute the

“addition of a pollutant” under EPA’s policy. EPA’s policy

concerning dams and dam-induced water quality changes is

not applicable here because the changes in water quality in

WCA-3A, increased levels of the pollutant phosphorus, are

not caused by the C-11 (drainage) Canal. The C-11

(drainage) Canal collects and channels the drainage, but it

does not cause the phosphorus as would be the case with

dam-induced or caused water quality changes that EPA

addressed in its Policy.

Outside the dams and dam-induced water quality changes

context, various Courts of Appeals have consistently held that

interbasin transfers of water containing pollutants through a

point source require an NPDES permit. Miccosukee Tribe,

280 F.3d at 1366-69; Catskill Mountain Chapter of Trout

Unlimited v. City of New York, 273 F.3d 481, 489-94 (2 Cir.

2001); DuBois v. U.S. Dept. of Agriculture, 102 F.3d 1273,

1269-99 (1" Cir. 1996); See also Northern Plains Resource

Council v. Fidelity Exploration and Development Company,

325 F.3d 1155 (9th Cir. 2003) (discharge of unaltered

groundwater from coal bed methane operations required

NPDES permits). This Court does not have to reach the issue

of EPA’s policy relating to dams and dam-induced water

quality changes to address the issue in this case because this

case does not involve a dam or dam-induced water quality

changes.

B. Petitioner and United States have radically

different positions on the issue before

the Court.

The United States in its Brief supports the Eleventh Circuit

rejection of the Petitioner’s resurrection of the argument that

“pollutants are added” from a point source only if the point

source is the origin of the pollutants. United States’ Brief

at 21. As the United States correctly states, this argument

was rejected more than 20 years ago, and Petitioner now is

attempting to resurrect this extreme position. United States’

Brief at 21. Under Petitioner’s approach, a discharge of a

pollutant requiring an NPDES permit occurs only “when the

pollutant originates from this point source, not when

pollutants originating elsewhere are merely passed through.”

Petitioner’s Brief at 26-27 (emphasis added). This extreme

position has been rejected by the federal courts for more than

20 years, is opposed by the United States and is inconsistent

with EPA’s regulation that defines the term “discharge of

pollutant” at 40 CFR § 122.2 (“. . . term includes surface

runoff collected and channeled by man.”). This position

would also severely handicap efforts to regulate publicly

owned treatment works and municipal separate storm sewer

systems (MS-4) as the United States correctly noted. See

United States’ Brief at 22, n. 6. This Court should reject this

extreme position suggested by Petitioner.

The “unified waters” position of the United States is

equally as extreme and objectionable and should also be

rejected. Under the United States’ view, which it failed to

share with the Eleventh Circuit below, there is a single

“unified waters of the United States.” After a pollutant is

discharged into one part of the “unified waters of the United

States,” the water containing the pollutants can be diverted

into any other part of the “unified waters of the United

States” without triggering any obligation to secure an NPDES

permit. This approach jeopardizes the water quality and

protected uses of distinct water bodies* and would allow the

* In Pennsylvania, protected water uses are applied to streams and

stream segments. 25 Pa. Code §§ 93.9, 93.9a-93.9z. The distinct uses of

individual streams and stream segments deserve protection that will be

diversion and mixing of water with significantly different

chemical, biological or physical characteristics without the

necessary protection of an NPDES permit to protect water

quality and stream uses.

The Eleventh Circuit decision correctly imposes the

requirement to obtain an NPDES permit that protects water

quality and stream uses where a man-made point source

changes the natural flow of a body of water and causes it to

discharge into another distinct body of water into which it

would not have otherwise flowed.

Il. NPDES PERMIT PROGRAM ENABLES

PENNSYLVANIA TO PROTECT SURFACE

WATERS FROM INTERBASIN DIVERSIONS

CONTAINING POLLUTANTS THAT MAY

DESTROY OR IMPAIR DESIGNATED USES

AND CAUSE POLLUTION.

A. Since 1986 Pennsylvania has applied its

NPDES permit program to _ interbasin

diversions.

Since 1986, the Department has applied its NPDES

permitting program in Pennsylvania to interbasin surface

water diversions of water containing pollutants from one

body of water to another. In 1986, the Pennsylvania

Commonwealth Court held the Department had the duty and

authority to require an NPDES permit for a diversion of water

from the Delaware River to the East Branch of the Perkiomen

Creek and North Branch of the Neshaminy Creek. Del-

AWARE Unlimited v. DER, 508 A.2d 348 (Pa. Cmwith.

1986). The Department continues to routinely apply its

NPDES permitting program to interbasin diversions.

lost under the United States’ “unified waters of the United States”

approach.

In Del-AWARE, a citizens group challenged certain permits

issued to a power company and several municipalities

authorizing a diversion project that supplied water from the

Delaware River to public water systems for use as drinking

water and to a nuclear power station for use as noncontact

cooling water. The matter was initially adjudicated before the

Pennsylvania Environmental Hearing Board (Board). The

Board upheld the Department's decision, in part, to issue the

permits, how-ever, it remanded the matter to the Department

ordering it to require an NPDES permit for the diversion of

the water from the Delaware River to the North Branch

Neshaminy and East Branch Perkiomen Creek. Del-AWARE,

508 A.2d at 359.

The power company appealed this remanded aspect of the

Board's decision to the Pennsylvania Commonwealth Court.”

The Pennsylvania Commonwealth Court upheld the Board on

this issue and directed the power company to obtain an

NPDES permit for its diversion of water from the Delaware

River to the East Branch of Perkiomen Creek. Del-AWARE,

508 A.2d at 360. The Pennsylvania Commonwealth Court

held that the diversion in that case constituted a point source

requiring an NPDES permit. It distinguished National

Wildlife Federation v. Gorsuch, and concluded that:

“PECO relies on National Wildlife Federation vy.

Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), which held that

water released from a particular dam to a stream below

was not from a “point source.” However, National

Wildlife Federation is distinguishable because it dealt

with water diversion within a single body of water,

whereas here water will be diverted from one body of

water (the Delaware River) to another (the East Branch).

Unlike National Wildlife Federation, “addition from a

point source occurs [because] the point source itself

> The power company’s diversion of water from the Delaware River

was discharged in the East Branch of the Perkiomen Creek.

physically introduces a pollutant into the water from the

outside world.”

Del-AWARE, 508 A.2d at 359 citing National Wildlife

Federation v. Gorsuch, 693 F.2d at 175. In sum, the

Pennsylvania Commonwealth Court concluded that a water

diversion within a single body of water did not require an

NPDES permit whereas water containing pollutants diverted

from one body of water to another requires a NPDES permit.

This distinction also forms the basis for the Pennsylvania

Commonwealth Court’s rejection of the power company’s.

argument that the interbasin diversion was a nonpoint

source discharge under 33 U.S.C. § 1314(f(2)(F).° The

Pennsylvania Commonwealth Court decided that the power

company’s interbasin diversion “is not a flow diversion

changing the “movement, flow or circulation” of East Branch

Perkiomen Creek, as would a dam levee, channel or

causeway, but one introducing water from a separate basin

into the East Branch Perkiomen Creek through a “discernible,

confined and discrete conveyance”: a “pipe.” Del-AWARE,

508 A.2d at 359, n. 39. The Pennsylvania Commonwealth

Court limited the scope of Section 1314(f)(2)(F) of the CWA

to changes in the movement, flow or circulation of water

within a single body of water. Thus, the longstanding

decision of the Pennsylvania Commonwealth Court is con-

sistent with the recent decision of the Eleventh Circuit Court

of Appeals in this case.

° Section 1314(f(2)F) provides: “The Administrator, after consulta-

tion with appropriate Federal and State agencies and other interested

persons, shall issue to appropriate Federal agencies, the States, water

pollution control agencies, and agencies designated under section 1288 of

this title, within one year after October 18, 1972 (and from time to time

thereafter) information including . . . (2) processes, procedures, and

methods to control pollution resulting from .. . (F) changes in the

movement, flow, or circulation of any navigable waters or ground waters,

including changes caused by the construction of dams, levees, channels,

causeways or flow diversion facilities.”

B. The Department has adopted a formal policy

for permitting surface water diversions to

guide its efforts in applying NPDES Permit

requirements.

Several Amici supporting the Petitioner labor under the

mistaken understanding that no state currently requires an

NPDES permit for surface water diversions between two

distinct water bodies. Brief of the City of New York et al. at

page 6. In Pennsylvania, NPDES permits are routinely

required for such surface water diversions. The Department

routinely follows the rules announced in the Del-AWARE

decision as evidenced by the formal Technical Guidance that

the Department developed and implements. The document is

entitled “Policy for Permitting Surface Water Diversion.”

The Policy states that it “results from a Pennsylvania

Commonwealth Court Decision in Del-AWARE Unlimited et

al v. Department of Environmental Resources et al, 508 A.2d

348 (1986) . . . ruling that the diversion of water from one

body of water to another requires a NPDES permit.” Policy

at page 2.

In Pennsylvania, water users may, with proper author-

ization,” divert water from one body of water to another

for ultimate use for any number of purposes. The Policy

” All of the Department's formal Technical Guidances are available

at its website at www.dep.state.pa.us at the Department’s Public

Participation Center web-page, and the Policy for Permitting Surface

Water Diversion is a Bureau of Water Quality Technical Guidance and is

available at the following link. —http://www.dep.state.pa.us/eps/docs/

cab2001 49b 1 126000/fidr200 149e005 | 190/fidr2002619 1 459089/doc 20026

19395 20ce/362-2000-003.pdf.

* The Department issues varidus permits to authorize such diversions

that are described in the identified Policy. In addition, in roughly two-

thirds of the Commonwealth, the Delaware and Susquehanna River Basin

Commissions also regulate the diversion of water, 32 P.S. § 815.101 and

32 P.S. § 820.1.

describes how the Department uses NPDES permits to protect

the water quality and uses of both the diverted and receiving

streams. The Department will not authorize a diversion if the

diversion from the diverted water body or the discharge to the

receiving water body will cause impairment or destruction of

the designated uses of either water body.

The Policy recognizes that an interbasin diversion is

different from a typical situation requiring an NPDES permit

where the discharger has direct control over the volume of the

discharge and the levels of pollutants being discharged. In a

diversion, the quality of the water being diverted is affected

by a variety of naturally occurring and man-induced

conditions that are not under the direct control of the diverter.

While the Department evaluates the public benefits associated

with a diversion versus the potential environmental impacts,

the Department is primarily concerned with insuring that the

diversion does not cause a violation of state water quality

standards in the receiving waters.

As the Policy describes, Pennsylvania’s federally approved

water quality standards encompass designated water uses and

water quality criteria necessary to protect those uses, as well

as special protection or antidegradation requirements. Policy

at page 9. To ensure protection of the water quality

standards, the Department evaluates the expected water

quality impact of a diversion by reviewing the available long-

term water quality data for both the diverted and receiving

streams. Policy at page 10. In its evaluation of the receiving

stream, the Department determines if the discharge will have

an adverse impact using appropriate modeling techniques. If

there are no anticipated adverse impacts then the discharge

can be approved. If there are anticipated adverse impacts to

the water quality standards then the Department will establish

technology-based effluent limitations or otner Best

Management Practices (BMP’s) to prevent the adverse

impacts. Policy at page 11.

The NPDES permit program provides Pennsylvania with

the necessary permitting tool to protect the water quality and

designated uses of streams that could otherwise be impaired

or destroyed from a diversion of water.

C. NPDES Permit Program provides a flexible,

efficient and effective means to regulate

interbasin surface water diversions.

The Petitioner and several Amici have mistakenly asserted

that the NPDES permitting program is a costly, time-

consuming, burdensome and bureaucratic program that will

“wreak havoc.” These unsupported claims are not accurate

. id are highly speculative. Pennsylvania’s actual experience

with its NPDES program, in regulating interbasin transfers

between different water bodies and in regulating other

categories, is different, and it establishes that the NPDES

program provides a flexible, efficient and effective means to

protect water quality and stream uses.

Pennsylvania has not experienced any of the litany of

problems that Petitioner and others mistakenly predict. In

addition, the NPDES permit program contains several key

elements that will enable states to provide effective, efficient

and ultimately enforceable NPDES permit coverage.

General permits are authorized in the NPDES permit

program for categories of discharges that qualify for general

permit coverage. 40 C.F.R. §§ 122.28 and 123.25; 25 Pa.

Code §§ 92.81-92.83. General permits can be issued

relatively quickly with a minimum of paperwork and admin-

istrative burden. Pennsylvania has, in fact, used general

permits for numerous categories of discharges such as

Concentrated Animal Feeding Operations (CAFO) (PAG-12),

30 Pa.B. 3122 (June 17, 2000), Stormwater Associated with

Construction Activities (Phase I and II) (PAG-2), 32 Pa.B.

* Petitioner's Brief at 4.

orn =

6000 (December 7, 2002), and municipal separate storm

sewer systems (MS-4)(PAG-13), 32 Pa.B. 5999 (December 7,

2002) '’. These general permits and others (that EPA has

approved) belie Petitioner’s argument. Any state which is

concerned about administrative burdens could use a general

permit to significantly reduce permit review timeframes and

administrative burdens in appropriate situations.

In addition, the Department recognizes that appropriate

Best Management Practices (BMPs) may be used in

appropriaie circumstances as effluent limitations in NPDES

permits in place of numerical effluent limitations in both

individual and general permits. BMPs provide a flexible

means to regulate discharges subject to the NPDES

permitting requirements. The Department, in fact, used

BMPs in the general permits listed above as effluent

limitations in a flexible and efficient manner. EPA has

authorized the use of BMPs in NPDES permits. See,

Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) (S BMP’s

allowed in NPDES permit for placer mining). Thus, states

implementing an NPDES permitting program have the

flexibility to develop a general permit for diversions

employing BMP’s in appropriate circumstances. Such an

approach would eliminate the litany of problems that have

been predicted.

A final indication of the flexibility afforded by the NPDES

permitting program is contained in the statutory definition of

“effluent limitation” which provides that:

“(11) The term “effluent limitation” means any

restriction established by a State or the Administrator on

quantities, rates, and concentrations of chemical,

Pennsylvania’s PAG-13 for MS-4 is consistent with the Ninth

Circuit's decision in Environmental Defense Center v. EPA, 344 F.2d 832

(9th Cir. 2003) in which the Ninth Circuit remanded EPA’s MS-4 general

permit option to EPA to address several deficiencies in EPA’s MS-4

general permit.

physical, biological, and other constituents which are

discharged from point sources into navigable waters, the

waters of the contiguous zone, or the ocean, including

schedules of compliance.”

33 U.S.C. § 1362(11) (emphasis added”) The statutory def-

inition of “schedule of compliance” authorizes a schedule of

remedial measures leading to future compliance. 33 U.S.C.

§ 1362(17). See also 40 CFR § 122.47. Thus, the NPDES

permit program expressly authorizes flexible schedules of

compliance containing a schedule of remedial measures that

lead to future compliance with the effluent limitations in

NPDES permits. Such flexibility is available in situations

where additional time is needed to achieve compliance, such

as restoring the water quality of the Everglades.

Thus, the NPDES permit program provides a flexible,

efficient and effective means to permit various categories

of discharges.

D. Recent amendments to Florida state law

highlight need for enforceable NPDES permit

to protect the environment.

Pennsylvania’s experience in requiring an NPDES permit

for diversions illustrates the meaningful environmental

protection provided by the NPDES permit program. To be

effective, the means to insure environmental protection need

to be enforceable.

Petitioner attempts to minimize the significant and critical

importance of a NPDES permit in protecting the environment

by asserting the S-9 Pump discharges are already permitted

under the Florida Everglades Forever Act, Fla. Stat.

§ 373.4592(9)(k) and (1) and (10), and that the state permit for

the S-9 Pump requires development of strategies to ensure

that the facility meets all state water quality standards,

including those for phosphorus, by the end of 2006.

Petitioner's Brief at page 17. While this statement reflects

Florida state law prior to May 20, 2003, the statement does

not recognize that the Florida Legislature enacted two

statutory amendments to the Everglades Forever Act (the first

amendment became effective on May 20, 2003 and the

second became effective on June 10, 2003)'' that have the

effect of extending the June 10, 2006 compliance deadline in

the state permit by a decade. The June 10, 2003 amendment

to Section 373.4592(10) deleted the following requirement:

“By December 31, 2003, the district shall submit-to the

department a permit modification to incorporate proposed

changes to the Everglades Construction Project and the

permits issued pursuant to subsection (9). These changes

shall be designed to achieve compliance with the phosphorus

criterion and the other state water quality standards by

December 31, 2006.” Fla. Stat. § 373.4592 (10)(b). The

statutory deadline for compliance is now in 2016. Without an

enforceable NPDES permit requirement, there is no

enforceable legal mechanism to assure that discharges from

the S-9 Pump will ever meet the state water quality standards

that are necessary to protect the Everglades. The state water

quality permit for discharges from the S-9 Pump is subject to

change, as recent statutory amendments confirm, and it

provides no real enforceable means to assure timely

compliance with state water quality standards. In contrast, in

Pennsylvania there would be an enforceable NPDES permit

in place to provide for meaningful environmental protection

of state water quality standards.

'' See, Fla. Stat. § 373.4592(9)(k) and (1) and (10), as amended. In

particular, the amendments created a two-phase long-term plan. The

initial phase of the long-term plan is for an initial 13-year phase (2003-

2016) and a second ten-year phase. The 2016 deadline for the initial

phase is ten years longer than the original language. See Fla. Stat.

§ 373.4592(3), as amended, creating the Everglades Long Term Plan.

The deadline in Section 373.4592(10) authorizing Long-Term

Compliance permits is now limited to “Pre-2006 Projects and Strategies

of the Long-Term Plan.”

Il. THE UNIQUE FACTS OF THIS CASE

PROVIDE AN INDEPENDENT BASIS TO

AFFIRM THE ELEVENTH’ CIRCUIT’S

DECISION.

The Commonwealth of Pennsylvania supports the analysis

adopted by the Eleventh Circuit in this case because it is

consistent with longstanding Pennsylvania state case law as

well as the Clean Water Act. The Eleventh Circuit did not,

however, have to decide the case solely on the basis that it did

because the unique facts of this case provide an independent

basis to impose an NPDES permit requirement on the S-9

Pump discharge from the C-11 (drainage) Canal. The facts,

as set forth by Petitioner and others, establish that the C-11

(drainage) Canal collects and channels runoff from the C-11

Basin within the meaning of EPA’s regulations defining

“discharge of a pollutant” thereby triggering an NPDES

permit requirement for the S-9 pumped discharge. The water

in the C-11 (drainage) Canal includes runoff from the C-11

~ Basin that is “coilected and channeled by man.” 40 CFR

§ 122.2.

The Petitioner has jurisdiction over and _ provides

comprehensive water management for the regional South

Florida ecosystem. That ecosystem is an immense, integrated

and unique system of hydrologically connected surface and

ground waters extending over 15,000 square miles. The

dominant feature of this unique area is the Everglades, a

wetlands system that once encompassed southern Florida. To

accommodate human habitation, the State of Florida and the

United States, through the Army Corps of Engineers, have

constructed elaborate projects that have drained portions of

the Everglades and altered the natural flow of the water.

While water once moved in a slow, unimpeded sheet from

Lake Okeechobee through the Everglades to the sea, it is now

directed through drainage canals and related facilities away

from heavily populated areas in Broward and Dade Counties.

- saiindisee

The petitioner is the local sponsor of the Corps’ Central

and Southern Florida Project (CCSF Project). The CCSF

Project was a “comprehensive plan of improvement designed

to remove excess water from urban, pasture and farm lands,

to conserve water for control of groundwater levels during

dry periods, and to prevent overflow of coastal areas by

waters from the Everglades.”

This case involves several CCSF Project components. The

component consisting of the C-11 (drainage) Canal collects

and channels “excess” or “accumulated” water from the C-11

Basin and transports this “excess” or “accumulated” water to

the water conservation area WCA-3A in the remaining

portions of Everglades by means of the S-9 Pump. The C-11

(drainage) Canal collects and channels “excess” or accum-

ulated” water including surface runoff from C-11 Basin.

The Corps initially constructed the C-11 (drainage) Canal

to drain the wetlands in the Everglades and allow develop-

ment of Broward County. Later the Corps built the two

north-south levees, L-33 and L-37 that form the western

boundary of C-11 Basin. To allow development and human

habitation, the C-11 (drainage) Canal drains the water in the

C-11 Basin below levels in the undeveloped wetland areas

west of the levees in WCA-3A. The S-9 Pump is needed to

maintain the water level in the C-11 Basin below that of the

undeveloped area. The water in C-11 (drainage) Canal

includes surface runoff from the C-11 Basin that is “collected

and channeled by man.” This runoff from the C-11 Basin

contains pollutants (such as phosphorus) originating from

agricultural, residential and other land uses. This phosphorus

originates from various point and nonpoint sources that drain

into the C-11 (drainage) Canal.

A. EPA’s NPDES regulations specifically address

surface runoff that is collected or channeled

by man.

Section 301(a) of the Clean Water Act prohibits the

“discharge of any pollutant” into navigable waters from any

point source without an NPDES permit. 33 U.S.C. § 131 1(a).

The term “discharge of a pollutant” is defined by statute as

“any addition of any pollutant to navigable waters from any

point source.” 33 U.S.C. § 1362(12)(A). EPA has promul-

gated a regulatory definition of “discharge of any pollutant”

at 40 CFR § 122.2 that, inter alia, provides several examples

of situations that fit within the definition of “discharge of a

pollutant” requiring an NPDES permit. One of the examples

in Section 122.2 is directly applicable in this case as the

definition of “discharge of a pollutant” therein provides in

part that:

. . « This definition includes additions of pollutants into

waters of the United States from: surface runoff which

is collected and channeled by man;.. .

40 CFR §122.2 (emphasis added). The C-11 (drainage)

Canal collects and channels runoff from the C-11 Basin’? that

is discharged from the S-9 Pump that is a point source. Thus,

this arrangement fits within the express terms of EPA’s

regulatory definition of “discharge of a pollutant” and

requires an NPDES permit.

The Ninth Circuit in Committee to Save Mokelumne River

v. East Bay Municipal Utility District et al, (13 F.3d 305)

(9th Cir. 1993), cert denied, 513 U.S. 873 (1994) applied

EPA’s regulatory definition of “discharge of a pollutant” in a

Situation involving “surface runoff which is collected or

channeled by man.” In that case surface runoff from an

'? The runoff includes associated seepage from adjoining’ areas in

WCA-3A where the water is :aaintained at higher levels.

abandoned mine site was “collected and channeled” by a

utility defendant. This drainage collected in a dam reservoir

where from time to time it passed over a spillway into the

Mokelumne River. The Ninth Circuit Court distinguished the

Gorsuch and Consumer Power Co. decisions, involving dams

and dam-induced pollution, because the source of the

pollution in the Mokelumne River was surface runoff that

was collected or channeled by defendants from an abandoned

mine site. Committee to Save Mokelumne River, 13 F.3d at

208-209. The Ninth Circuit applied EPA’s regulatory

definition at 40 CFR §°122.2 (definition of “discharge of a

pollutant”) to hold that defendants were subject the NPDES

permit requirements for the discharge of the surface runoff

from the mine site that it collected and channeled. /d.

B. The C-11 (drainage) Canal is a man-made

drainage canal that collects and channels

runoff from the C-11 Basin.

The analysis in Committee to Save Mokelumne River is

applicable in this case. The only difference is the size of the

man-made effort to collect and channel surface runoff. The

enormous scale of drainage of a 105 square mile portion of

the Everglades wetlands within the C-11 Basin by the C-11

(drainage) Canal should not change or cloud the analysis or

outcome. The man-made C-11 (drainage) Canal drains a

large portion of the Everglades wetlands to allow human

habitation. The seepage that is collected and channeled by

SFWMD in the C-11 (drainage) Canal is directly related to

the runoff and is an integral part of the drainage that is

collected. The water level in C-11 Basin is only maintained

by draining the runoff and related seepage by means

of the C-11 (drainage) Canal and pumping the “excess”

water or “accumulated” water from the S-9 Pump to the

WCA-3A area.

The man-made C-11 (drainage) Canal is so large and

extensive that it is itself a protected Class III surface water for

recreation and propagation and maintenance of fish and

wildlife. Fla. Admin. Code § 62.302-400. It, however,

remains a man-made structure primarily designed to collect

and channel runoff and related seepage. As a man-made

structure that collects and channels surface runoff, a

discharge from the C-11 (drainage) Canal is subject to the

express terms of EPA’s NPDES regulations as a discharge of

a pollutant requiring an NPDES permit. Thus, the S-9

pumped discharge from this large scale C-11 (drainage) Canal

is subject to the NPDES permit program under the express

terms of EPA’s regulations.

CONCLUSION

For the foregoing reasons, the judgment of the United

States Court of Appeals for the Eleventh Circuit should

be affirmed.

Respectfully submitted,