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

Supreme Court, U.S.

FILED

No. 02-626 NoV_14 2093

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

Vv.

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA

and FRIENDS OF THE EVERGLADES, INC.,

Respondents.

On Wait oF CERTIORARI TO THE

Unitep STaTes Court OF APPEALS FOR THE ELEVENTH CIRCUIT

BrRieF OF THE STATES OF New York, CONNECTICUT, ILLINOIS,

KENTUCKY, MAINE, MASSACHUSETTS, MicuiGAn, Missouri,

New Jersey, NortH CAROLINA, OKLAHOMA, VERMONT, AND

WASHINGTON AS Amici CuRIAE IN SUPPORT OF RESPONDENTS

Eviot Spitzer

Attorney General of the

State of New York

Peter H. LEHNER CaITLN J. HALLIGAN*

Chief, Environmental Solicitor General

Protection Bureau

MICHELLE ARONOWITZ

James M. TIERNEY Deputy Solicitor General

Assistant Attorney General

Rosert H. Easton

Assistant Solicitor General

120 Broadway

New York, NY 10271

* Counsel of Record (212) 416-8016

Attorneys for Amici Curiae

(Additional Counsel Listed Inside Front Cover)

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

P.O. Box 120

Hartford, CT 06141-0120

Lisa MADIGAN

Attorney General

State of Illinois

100 W. Randolph Street

Chicago, IL 60601

ALBERT B. CHANDLER III

Attorney General

Commonwealth of Kentucky

1024 Capital Center Drive

Frankfort, KY 40601

G. STEVEN ROWE

Attorney General

State of Maine

6 State House Station

Augusta, ME 04333-0006

THOMAS F. REILLY

Attorney General

Commonwealth

of Massachusetts

200 Portland Street, 3rd Floor

Boston, MA 02114

Micuaet A. Cox

Attorney General

State of Michigan

P.O. Box 30212

Lansing, MI 48909

JEREMIAH W. (Jay) NIXON

Attorney General

State of Missouri

Supreme Court Building

P.O. Box 899

Jefferson City, MD 65102-0899

Peter C. HARVEY

Attorney General

State of New Jersey

R.J. Hughes Justice Complex

25 Market Street

P.O. Box 80

Trenton, NJ 08625

Roy Cooper

Attorney General

State of North Carolina

P.O. Box 629

Raleigh, NC 27602-0629

W.A. Drew EDMONDSON

Attorney General

State of Oklahoma

2300 N. Lincoln Boulevard

Suite 112

Oklahoma City, OK 73105-4894

WILLIAM H. SorreLe

Attorney General

State of Vermont

109 State Street

Montpelier, VT 05609-1001

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504-0100

i

TABLE OF CONTENTS

Page

Table of Cited Authorities ..................... iil

Interest of Amici Curiae ...................4-. l

Summary of Argument ....................4-. 3

Dt <i ebbt¢ebennesoeerooseeseneeeeeoes 6

I. TheAct Requires An NPDES Permit For Water

Transfers That Introduce Pollutants That

Would Not Have Entered The Receiving Water

Body But For The Point Source. ......... 6

A. The Text of the Act and EPA Regulations

Demonstrate That Transfers of Water

Through a Point Source Are Subject to

the Act’s Permit Requirement. ....... 6

B. The Act’s Structural Focus on the Quality

of Each Distinct Water Body Refutes the

Theory That the Act Treats the “Waters

of the United States” As a Unitary Whole.

PPC et eee Odeconedeeeeteceecs 9

1. The establishment of designated uses,

water quality criteria, and NPDES

permit conditions refutes the United

PT <cctdccenscuutees 10

'2. Other measures aimed at water quality

standard compliance also dispel the

“unified water” theory. .......... 12

il

Contents

C. Interbasin Point Source Discharges of

Pollutants Are Not Adequately Addressed

Through Nonpoint Source or Water

Allocation Programs. .........---+--

Il. APermit Requirement For Interbasin Transfers

Of Water Involving The Addition Of A

Pollutant From A Point Source Enables States

To Protect Water Quality. ...........-+--

Ill. Application Of The Act’s Permit Requirement

To Interbasin Point Source Transfers Of

Water Containing Pollutants Is Not Unduly

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18

23

27

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iil

TABLE OF CITED AUTHORITIES

Page

CASES

Arkansas v. Oklahoma,

a 6

Catskill Mts. Chapter of Trout Unlimited, Inc. v.

City of N.Y.,

273 F.3d 481 (2d Cir. 2001) ............. 8, 9, 20, 21

Chevron U.S.A. Inc. v. Natural Res. Defense

Council, Inc.,

467 U.S. 837 (1984)

Dague v. City of Burlington,

935 F.2d 1343 (2d Cir. 1991), rev'd in part

on other grounds, 505 U.S. 557 (1992) ........ 21

Del-A WARE Unlimited, Inc. v. Pennsylvania,

508 A.2d 348 (Pa. Commw. Ct. 1986) ......... 24

Dubois v. United States Dept of Agric.,

102 F.36 1273 (1° Cig. 1996) ...........000-. 8,19

Eastern Assoc. Coal Corp. v. United Mine Workers,

Se IEE écccadcluudecsseaduannnsde 24

Miccosukee Tribe of Indians v. South Fla. Water

Mem. Dist.,

280 F.3d 1364 (11" Cir. 2002) ........ 1, 8, 21, 24, 26

National Wildlife Fed’n v. Consumers Power Co.,

862 F.2d 580 (6 Cir. 1988) ................. 8

iv

Cited Authorities

Page

National Wildlife Fed'n v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982) 2.2... 6s 8, 9,24

Northern Plains Res. Council v. Fidelity

Exploration & Dev. Co.,

325 F.3d 1155 (9th Cir.), cert. denied, US. _,

72 U.S.L.W. 3280 (Oct. 20, 2003) .. 2... 6.645. 19-20

PUD No. | v. Washington Dep t of Ecology,

S11 U.S. FOO (1994) 2... ccc cece eee ween passim

Riverside Irrigation Dist. v. Andrews,

758 F.2d 508 (10 Cir. 1985) 2.0.6.6 eee eee 17

United States v. Earth Sciences, Inc.,

§99 F.2d 368 (10 Cir. 1979) 2... ee ee 15

United States v. Mead Corp.,

$33 U.S. ZIB (BOOI) 2... wc ccenccccccccccces 10

Weinberger v. Romero-Barcelo,

436 U.S. 30S (1982) 2... nce cece cece eeeeees 26

Whitman v. American Trucking Ass ‘ns, Inc.,

$31 U.S. 487 (2OO1) 2... nec ceccccccccccess 26

FEDERAL STATUTES

33 U.S.C. § UZST 2... ccc wccccccecccccenceenes 1,6

33 U.S.C. § 1ZSIfa) .. were eee e eevee eeceees 6, 18

33 U.S.C. § 12S1(aN7) ......cceeeeeee eee e eens 16

— ee

Vv

Cited Authorities

33 U.S.C. § 1251(g)

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33 U.S.C. § 131 1(a)

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33 U.S.C. ra i geo ica eat toe ais

33 U.S.C. § 1313(G)(IMA) 2.0... eee

33 U.S.C. § 1313(d)IY(B) o.oo.

33 U.S.C. § 1313) (C) oe

33 U.S.C. § 1313(d)(IM(D) 2.02... 0.0.000.0....

33 U.S.C. § 1313(d)(4)(B) ....................

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93 U.S.C. § 131A)... ccc ccc cece eee.

vi

Cited Authorities

Page

ee 15

33 U.S.C. § 13I4(IMAMF) «0... cece ecw ee eens 15

I ogo cn iunnesecextivasseenvins 13

OE ion ns ccunsaskccacnesinceses 8

OIE | og ccncsvensidacesnnns ny

OI occu inexsnncessieeees 13

I on cuscnsauvastnccesusonss 13, 24

A Cn asccusndiascssceapeests 14

NN BI oni cccnianeniseuannns 6

SD UBC. § UDEMANMED .....000cccccccvcceces: 12

Ce 12

I, cccccccuvannasaceteusenes 6

SS UBC. BUSGMG) 20... cccccccsccvcceeccees 6, 7, 15

33 U.S.C. § 1362(7) ........ecceeeeceeeces 6, 7, 9, 26

33 U.S.C. § 1362(12) ......ceeeceeeeeeeeeeees 6,7

REE, «oc ccenccusnnaseresuenes 7,9, 15

BO, oi cccknstacscedwciasseus 26

OS oo. ehinieedubenneies 17

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vil

Cited Authorities

FEDERAL REGULATIONS

40 C.F.R. § 121.2(a)(3)

40 C.F.R. § 122.1(b)

40 C.F.R. § 122.2

40 CER. § 122.26

40 C.F.R. § 122.26(a)(1)(ii)

40 C.F.R. § 122.26(a)(9)(i)

40 CER. § 122.26(b)(14)(iii)

40 C.F.R. § 122.26(b)(14)(x)

40 C.F.R. § 122.26(b)(15)(i)

40 C.ER. § 122.30

40 C.F.R. § 122.34(b)(4)(i)

40 C.F.R. § 122.37

40 C.F.R. § 122.44(d)(1)

40 C.F.R. § 122.44(d)(1)(i)

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vill

* Cited Authorities

40 C.FR. § 122.44(d)(1)(vii) ....... 65.

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40 C.FR. § 131.10(a) ..........00 eee

BOE iii iaccdeandaene

40 C.FR. § 131.12(a)(2) ... 00.02 ee eee

63 Fed. Reg. 69394 (Dec. 16, 1998) ....

66 Fed. Reg. 1671 (Jan. 9, 2001) .......

STATE REGULATIONS

N.Y. Comp. Codes R. & Reg,., tit. 6 § 701.2

N.Y. Comp. Codes R. & Reg,., tit. 6 § 701.5

N.Y. Comp. Codes R. & Reg., tit. 6 § 701.7

N.Y. Comp. Codes R. & Reg., tit. 6 § 701.9

“enreveeee

N.Y. Comp. Codes R. & Reg,, tit. 6 § 703.5(f) ....

N.Y. Comp. Codes R. & Reg., tit. 6 § 800.1

N.Y. Comp. Codes R. & Reg., tit. 6 § 941.9

1x

Cited Authorities

Page

OTHER AUTHORITIES

National Research Council, Watershed Management

for Potable Water Supply (National Academy

Press 2000)

Pennsylvania Dep’t of Envtl. Prot., Policy for Permitting

Surface Water Diversions (Mar. 1, 1998) ...... 24

U.S. EPA and U.S. Dep’t of Agric., Clean Water Action

Plan: Restoring and Protecting America’s Waters

(Feb. 14, 1998)

(obdbedncheenskesnbeteuesses 21

U.S. EPA, National Water Quality Inventory:

2000 Report (Aug. 2002 Fact Sheet) .......... 18

U.S. EPA, National Water Quality Inventory:

2000 Report (released Sept. 2002) ............ 22

l

INTEREST OF AMICI CURIAE

The amici curiae States, through their Attorneys General,

respectfully urge affirmance of the court of appeals’ decision in

Miccosukee Tribe of Indians v. South Florida Water

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

held that the Clean Water Act (the “Act’”’), 33 U.S.C. §§ 1251,

et seq., requires a permit where a “point source” conveys water

containing pollutants from one distinct water body to another,

even though the point source is not the original source of

pollutants.

Water is diverted from its natural flow and transferred from

one body to another to facilitate a variety of activities, including

aquaculture, irrigation, community drainage, and coal-bed

methane gas extraction. In some circumstances — the diversion

of water infested with an invasive species into an uninfested

water body, the drainage of polluted run-off into sensitive

worksheds, and the disposal of chemical-laden ground water

into surface waters, for instance — these human-induced transfers

adversely affect water quality. The Eleventh Circuit and three

other courts of appeal have construed the Act to provide States

with an effective mechanism for ameliorating, where necessary,

the consequences of such transfers. The contrary interpretation

advanced by Petitioner would leave largely unregulated many

transfers of lower-quality water into bodies of higher-quality

water, thereby creating a significant gap in the States’ authority

under the Act to protect and maintain the quality of the waters

within their borders.

Amici States, most with delegated enforcement authority

from the United States Environmental Protection Agency

(“EPA”), have a significant interest in the present case because

they are tasked with protecting their citizens’ health and welfare.

The forty-five States with delegated authority have primary

responsibility, in partnership with EPA, for enforcing the Act’s

cornerstone requirement that pollutants not be discharged from

a point source into the “navigable waters” of the United States,

except in accordance with a National Pollutant Discharge

2

Elimination System (“NPDES”) permit. Over the past 30 years,

the States have worked to implement this requirement and

related provisions of the Act with the aim of assuring that each

individual body of water ultimately achieves and maintains

compliance with its applicable water quality standards.

To this end, States have classified each surface water body

within their boundaries to establish its “designated use”;

promulgated water quality criteria in conjunction with EPA that

specify maximum pollutant levels for each water body within

their borders; and invested tremendous resources in the scientific

staff necessary to ensure that tens of thousands of NPDES

permits contain pollutant limitations designed to protect and

maintain the quality of the specific water body into which

pollutants are discharged. The States also have assessed each

water body that has not yet achieved compliance with water

quality standards, and developed water pollution budgets and

remedial plans to bring these bodies into compliance with

applicable water quality standards. Given these extensive efforts,

the amici States have a significant interest in assuring that their

finely-tuned programs to assess, protect, and improve the water

quality of each surface water body within their borders are not

frustrated by a construction of the Act that constrains state

authority to control, through the permitting process, the transfer

of pollutants from lower-quality waters to higher-quality waters.

Furthermore, the amici States have a strong interest in

ensuring a strong “national floor” of water quality controls

through the Act’s permitting requirement. These requirements,

approved by EPA, prevent States from relaxing their own

standards and enforcement efforts in order to gain a perceived

market advantage in the siting of industrial or commercial

facilities at the economic or environmental expense of other

States. Moreover, because watersheds do not respect political

boundaries, downstream States have a substantial interest in

protecting their water bodies through the uniform processes and

remedies provided by the Act against the transfer of pollutants

originating in upstream States. -

a

os —_—_— ~ = ae

3

SUMMARY OF ARGUMENT

The Act’s NPDES permit program is the primary means

for protecting and improving water quality within the

comprehensive regulatory regime established by Congress. This

program requires EPA and delegated States to consider the

impact of pollutants on a water body; review viable options

that would have a lower impact; and require application of

pollutant control technologies and sensible management

practices, all in an effort to prevent water quality from falling

below acceptable levels. The decision below applying the Act’s

permit requirement to the conveyance, through a point source

of water containing pollutants should be affirmed based on well-

established principles of statutory interpretation. Moreover

affirmance is necessary to ensure that the Act remains a vital

tool to protect and improve the Nation’s waters.

1. The Act’s comprehensive goals, plain lan

structure, and implementing regulations penal

permit is required for the transfer of water containing pollutants

from one body to another, where the receiving body would not

otherwise be burdened with the additional pollutants but

for transfer through the point source. The cases upon which

Petitioner relies to argue that a permit is not required are

inapposite, for they involve discharges of pollutants from dams

which merely recirculate water, and not, as is the case here the

artificial diversion of water from its natural course. Moreover

Petitioner’s assertion that a permit is required only if the point

source itself is the original source of the added pollutant is

contrary to the Act’s plain language and EPA regulations.

Nor do the arguments raised by Petitioner and its amici

warrant a narrower construction of the Act. By mandating efforts

to assure the quality of each individual water body, the Act and

EPA regulations squarely reject the theory, advanced by the

United States, that once pollutants enter one water body

anywhere in the Nation, they may be conveyed through a point

source to any other water body without coming within the scope

4

of the Act’s permit requirement. Numerous water quality

protection measures established by the Act that focus on water

bodies in a discrete and individualized manner would be

frustrated by an interpretation of the Act that treats these

bodies as one unified whole.

Likewise, there is no support for the contention that point

source transfers of water containing pollutants should be

addressed solely through “nonpoint” source programs ~ /.e.,

programs designed to control diffuse runoff not discharged

through a discrete conveyance. Although the Act notes that

some activities — including the activities of water diversion

facilities — may be sources of nonpoint pollution, nothing in

the Act dispenses with the need also to obtain an NPDES

permit in connection with point source discharges that may

result from these activities. In any event, nonpoint source

programs and state water quality programs have — both before

passage of the Act and in the over three decades since —

proven largely inadequate for achieving mandated water

quality standards, as evidenced by the fact that almost half

of the Nation’s waters remain impaired, typically from

sources not controlled by NPDES permits. Similarly, state

water allocation programs generally do not adequately protect

water quality.

2. As a result, a rule that effectively divests delegated

States (or EPA, in nondelegated States) of the authority to

require NPDES permits for transfers of water containing

pollutants could seriously harm water quality throughout the

Nation. Salt water could be transferred into fresh water,

sediment-laden water could be sent into clear drinking water

reservoirs, warm waters could be pumped into cold water

habitats, chemical-laden waters could be dumped into waters

employed in farm and ranch irrigation, and invasive species

could be transferred into waters not yet infested. It would be

strikingly incongruous for the Act, given its comprehensive

— —_——asa—

5

scope, to place such problematic point source additions of

pollutants beyond the reach of the Act’s permit requirement.

| 3. To require EPA or delegated States to issue permits

in accordance with the Act for interbasin point source

transfers containing pollutants will not unduly tax the

resources of regulators, as permitting authorities already issue

hundreds of thousands of permits as a matter of course.

Pennsylvania, for instance, has required NPDES permits for

interbasin point source transfers of polluted water since 1986.

Moreover, to the extent that regulated parties may

complain that the permitting process is time-consuming and

costly, NPDES permits are readily available where the

transferred water is of a quality that will not degrade the

quality of the receiving water, which is the case in the vast

majority of transfers. As the permitting authority in most

circumstances, delegated States have the ability to expedite

action on NPDES permits. And, where technological or cost

limitations make it necessary, the NPDES program provides

for “schedules of compliance” to allow for the long-term

implementation of corrective measures necessary to achieve

compliance, while allowing important but problematic water

diversions to continue in the interim.

6

ARGUMENT

Il. THE ACT REQUIRES AN NPDES PERMIT

FOR WATER TRANSFERS THAT INTRODUCE

POLLUTANTS THAT WOULD NOT HAVE

ENTERED THE RECEIVING WATER BODY BUT

FOR THE POINT SOURCE.

A. The Text of the Act and EPA Regulations

Demonstrate That Transfers of Water Through a

Point Source Are Subject to the Act’s Permit

Requirement.

Congress enacted the Clean Water Act, 33 U.S.C. §§ 1251

et seq., to “restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters. 33 U.S.C.

§ 1251(a) (2003). As part of the comprehensive program to

implement the Act’s objectives, Congress declared that ‘the

discharge of any pollutant by any person” into navigable

waters “shall be unlawful,” id. § 1311(a), unless it is in accord

with an NPDES permit (or state analog), id. §§ 1342(a), (b).

The Act’s permit program is the “primary means for

protecting and improving water quality within the

“comprehensive regulatory regime” established by Congress.

Arkansas v. Oklahoma, 503 U.S. 91, 99, 101 (1992).

Whether issued by EPA or a delegated State, an NPDES

permit sets forth the conditions for the discharge of pollutants

consistent with various other applicable provisions of the

Act, to assure that each receiving water body will achieve or

continue to achieve applicable “water quality standards.

Id. §§ 1311(b)(1)(C), 1312(a), 1313(a)-(c); 40 C.F.R.

§ 122.44(d)(1) (2003).

As noted, the Act requires a permit for the “discharge of

” ‘ ! ” ; . . le waters.”

a pollutant” from a “point source” into “navigab

See 33 U.S.C. §§ 1311(a); 1342(a), (b); 1362(6), (7), (12),

(14); see also 40 C.F.R. § 122.1(b). The Act's broad

:

definitions of these key terms make clear that Congress

intended the Act to cover water transfers like those at issue

here. “[D]ischarge of a pollutant” is defined in pertinent part

as “any addition of any pollutant to navigable waters from

any point source.” 33 U.S.C. § 1362(12). “Point source,” in

turn, is expansively defined as “any discernible, confined

and discrete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft, from which

pollutants are or may be discharged.” Jd. § 1362(14). The

definitions of “pollutant,” id. § 1362(6), and “navigable

waters,” id. § 1362(7), are similarly broad.

EPA regulations, which are entitled to deference,' further

confirm that the water transfer here — the pumping of polluted

water from the C-11 Canal into Water Conservation Area

3-A — requires an NPDES permit. EPA defines “(discharge

of a pollutant” to include “additions of pollutants into waters

of the United States from: surface runoff which is collected

or channelled by man; discharges through pipes, sewers, or

other conveyances owned by a State, municipality, or other

person which do not lead to a treatment works.” 40 C.F.R.

§ 122.2. Because the contested activity here involves “surface

runoff which is collected or channelled by man” and

“discharges through pipes . . . or other conveyances owned

by a State, municipality, or other person which do not lead

to a treatment works,” a permit is required.

1. EPA’s long-standing regulation interpreting what constitutes

a “discharge of a pollutant” is reasonable and entitled to deference

under Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). See PUD No. 1 v. Resources Washington

Dept of Ecology, 511 U.S. 700, 712 (1994) (holding that

EPA regulation is a “reasonable interpretation” of the Act “entitled

to deference”).

8

The dam cases upon which petitioner relies (Pet. Br. 31-

32) are not to the contrary. National Wildlife Federation v.

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

Wildlife Federation v. Consumers Power Co., 862 F.2d 580

(6" Cir. 1988), held that dam-induced changes to water

quality fall outside the Act’s permit requirement. However,

discharges from dams are qualitatively different from the

interbasin transfers of water at issue in more recent and

relevant cases decided by the First, Second, and Eleventh

Circuits, see infra Point Il, because the former involve the

mere “recirculation of water,” whereas the latter involve the

“artificial diver{sion] of water from its natural course.”

Catskill Mts. Chapter of Trout Unlimited, Inc. v. City of N.¥.,

273 F.3d 481, 491-92 (2d Cir. 2001). Outside the dam context,

courts of appeals consistently have held that an NPDES

permit is required where a point source conveys water

containing pollutants from one distinct water body to another,

even though the point source is not the original source of

pollutants. Miccosukee Tribe, 280 F.3d at 1366-69; Catskill

Mts., 273 F.3d at 489-94; Dubois v. United States Dept of

Agric., 102 F.3d 1273, 1296-99 (1* Cir. 1996).

2. If the dam context is determined to be factually

indistinguishable from the facts of this case, however, it would

become apparent that the dam cases were wrongly decided. Indeed,

the two cases on which Petitioner relies accorded undue deference

to an EPA position, stated in opinion letters and reports to Congress

in the 1970s and 1980s, that no permit is required for the discharge

of pollutants from dams. That position “was never formalized in a

notice-and-comment rulemaking or formal adjudication under the

Administrative Procedure Act.” Catskill Mts., 273 F.3d at 490; see

also Miccosukee Tribe, 280 F.3d at 1368 n.4 (finding deference in

Gorsuch and Consumers Power unwarranted). In any event, it is

unclear whether Gorsuch and Consumers Power remain valid after

PUD No. | v. Washington Dept of Ecology, 511 U.S. 700, 722-23

(1994), which held that 33 U.S.C. § 1341, the Act’s certification

requirement (discussed infra Point I.B.2), applies to dam discharges.

ww eS EP OR AS gh Ey

9

Petitioner also argues that a permit is required only if

the point source itself is the original source of the pollutant

(Pet. Br. 20), but this contention turns a blind eye to the Act’s

and EPA’s definition of “point source” as a discrete

conveyance, such as a pipe or a ditch. 33 U.S.C. § 1362(14);

40 C.FR. § 122.2. “[A] ‘pipe, ditch, channel, tunnel [or]

conduit’ is unlikely to have created the pollutants that it

releases, but rather transports them from their original source

to the destination water body.” Catskill Mts., 273 F.3d at 493

Petitioner s argument also is “inconsistent with [EPA’s]} own

regulations, which define ‘discharge of a pollutant’ to include

surface runoff which is collected or channelled by man.’

Thus, EPA regulates the channel as a point source even though

pollutants merely pass through it from land to navigable

water.” Gorsuch, 695 F.2d at 175 n.58 (citation omitted)

Indeed, even the United States, one of petitioner’s amici,

rejects this theory (U.S. Br. 21-22), noting that one of the

most common types of permitted facility — the sewage

a plant — does not itself add any pollutants to the

water.

B. The Act’s Structural Focus on the Quality of Each

Distinct Water Body Refutes the Theory That the

Act Treats the “Waters of the United St tes”

Unitary Whole. —

. ‘By mandating efforts to assure the qualit

individual water body, the Act and EPA aieions poten

reject the theory, advanced by amicus curiae United States

that once pollutants enter one water body anywhere in the

Nation, they may be conveyed through a point source to any

other water body, without coming within the scope of the

Act’s permit requirement. According to the United States

the Act’s use of the term “navigable waters,” 33 U.S C.

§ 1362(7), signals a congressional intent that “the waters of

10

the United States’ should be viewed as a whole for purposes

of NPDES permitting requirements” (U.S. Br. 19).’

This argument is untenable. The Act establishes

numerous water quality protection programs that operate in

conjunction with the Act’s permit requirement to improve or

maintain water quality by protecting individual water bodies.

These measures, which demonstrate that Congress intended

to distinguish between discrete water bodies throughout the

Nation, would be significantly undermined if the Act’s

fundamental permitting requirement were read to exclude

the transfer of pollutants from one water body to another.

1. The establishment of designated uses,

water quality criteria, and NPDES permit

conditions refutes the United States’ theory.

The United States’ “unified water” theory flies in the

face of the Act’s water-body by water-body approach to

assuring water quality. The Act contemplates that delegated

States will make individualized determinations in classifying

and designating the uses of each water body within their

borders; in establishing water quality criteria applicable to

~ each body of water; and in issuing NPDES permits to regulate

and control, on a case-by-case basis, the discharge of

pollutants into each such body.

The Act and EPA regulations require each State to issue

“water quality standards” that consist of two major elements:

(i) “the designated uses of the navigable waters involved”;

and (ii) “the water quality criteria for such waters based upon

such uses.” 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.10,

131.11.

3. Of course, whereas EPA’s regulations are entitled to Chevron

deference, see supra note 1, the same cannot be said of the United

States’ brief to this Court. See United States v. Mead Corp., 533 U.S.

218, 238 n.19 (2001) (refusing to accord deference to United States’

brief).

11

To establish the designated use (or “classification”

each body of water, States “must take into omer eared

use and value” of each water body “for public water supplies

protection and propagation of fish, shellfish and wildlife,

recreation in and on the water, agricultural, industrial and

other purposes including navigation.” 40 C.E.R. § 131. 10(a).

This is a tedious and labor-intensive process. New York, for

example, has classified all of its waters in seven volumes of

regulations issued by its Department of Environmental

Conservation. N.Y. Comp. Codes R. & R

941.9 (2003). egs., tit. 6, §§ 800. 1-

Classifications vary depending on the attribut

purposes served by the water body. New York Prenat

waters, inter alia, “Class N” (water free of pollutants that

may be enjoyed in its “natural condition”), id. § 701.2; “Class

AA (water that may be used as a drinking water source after

simple disinfection), id., § 701.5; “Class B” (water of

sufficient quality to allow for contact recreation and fishing)

id. § 701.7; and “Class D” (water that will allow for fish

survival but not fish propagation), id. § 701.9.

Apart from designating the uses of their bodies of water

the Act also requires States to establish “water quality

criteria.” 33 U.S.C. § 1313(c)(2)(A). “Criteria are elements

of State water quality standards, expressed as constituent

concentrations, levels, or narrative statements, representing

a quality of water that supports a particular use. When criteria

are met, water quality will generally protect the designated

use.” 40 C.FR. § 131.3(b). Depending on a water body’s

particular designated use, the stringency of applicable

water quality criteria may vary substantially. See, e.g., N.Y.

Comp. Codes R. & Regs., tit. 6, § 703.5(f). With respect to

12

phosphorus, the pollutant of concern here, EPA has developed

guidance targeted at the attributes and designated uses of

particular bodies of water.‘

After a State has designated the use and water quality criteria

applicable to particular bodies of water, it may issue, on a case-

by-case basis, an NPDES permit. For each discharge of a

pollutant, the permit imposes limitations to prevent excursions

above the state water quality standards applicable to the specific

receiving water body affected by the discharge. 33 U.S.C.

§§ 1342(a)(1), (2); 1311(b)(1)(C); 40 C.F.R. § 122.44(d)(1)(i).

The calculation of how much of a particular pollutant the permit

applicant may discharge without running afoul of water quality

criteria involves a complex assessment of numerous factors,

including the current concentration of the pollutant in the

receiving water, human health impacts, the sensitivity of any

affected species to the pollutant, and the dilution rate of the

receiving water. See 40 C.F.R. § 122.44(d).

To abrogate the permit requirement and adopt the United

States’ dubious theory would be manifestly inconsistent with

the Act, and deprive States of effective tools to monitor,

maintain, and achieve water quality consistent with the

designated use and water quality criteria applicable to each

individual water body within their borders.

2. Other measures aimed at water quality

standard compliance also dispel the “unified

water” theory.

The Act establishes a number of additional regulatory

mechanisms that further operate to ensure compliance with

the different water quality standards applicable to every

4. See 66 Fed. Reg. 1671 (Jan. 9, 2001) (Nutrient Criteria

Development; Notice of Ecoregional Nutrient Criieria).

ee ee a ee wae .

13

individual water body. These mechanisms underscore the

importance of Act’s permit requirement, and further dispel

the United States’ “unified water” theory.

First, the Act requires States to assess their waters and

identify each water body that has not achieved compliance

with water quality standards, despite implementation of

effluent limitations and thermal controls contained in NPDES

permits. 33 U.S.C. §§ 1313(d)(1)(A), (B); 1315. For each

non-compliant body, States must develop water pollution

budgets and remedial pollutant loading allocations, known

as “total maximum daily loads” (“TMDLs”), to address both

piped (“point”) and diffuse (“nonpoint”) sources of pollutants

in an effort to achieve compliance with applicable water

quality standards. Jd. §§ 1313(d)(1)(C), (D); 40 C.F.R.

§ 130.7. Once established, the loads assigned to point sources

in the TMDL process are incorporated into NPDES permits.

40 C.F.R. § 122.44(d)(1)(. ti).

Second, the Act provides that prior to undertaking any

project that requires a federal license or permit and “which

may result in any discharge into the navigable waters,”

33 U.S.C. § 1341(a)(1), a permit applicant first must obtain

a certification from the State that the project will not

violate applicable state water quality standards, 40 C.F.R.

§ 121.2(a)(3). Like an NPDES permit, the state certification

may impose conditions or limitations to ensure compliance

with state water quality standards for the affected water body.

33 U.S.C. § 1341(d); see also PUD No. 1, 511 U.S. at 708

(“The limitations included in the certification become a

condition on any federal license.”).

Third, the Act and EPA regulations contain an

“antidegradation policy,” 33 U.S.C. § 1313(d)(4)(B), that

requires States to maintain and protect the quality of those

water bodies that “exceed levels necessary to support

propagation of fish, shellfish, and wildlife and recreation in

14

and on the water,” 40 C.F.R. § 131.12(a)(2). Under this policy,

waters that are cleaner than the criteria for the particular

designated use specified must be protected at the actual higher

quality, unless water degradation is necessary to support

pressing economic or social needs. /d.; see also PUD No. 1,

511 U.S. at 718-19.

Together, these programs work to prevent the

introduction of pollutants that may adversely affect the water

quality of each individual water body, and further demonstrate

the Act’s water-body by water-body approach to assuring

water quality. If the Court accepts the United States’ view

that transfers of water containing pollutants from one body

to another are not subject to the technolugical controls,

operational methodologies, or pollutant management

practices encompassed by the NPDES permit process and

related measures, state efforts to protect individual water

bodies would be severely impaired.

C. Interbasin Point Source Discharges of Pollutants

Are Not Adequately Addressed Through

Nonpoint Source or Water Allocation Programs.

Despite acknowledging that the pump station here is a

“point source” within the meaning of the Act, Petitioner and

its amici nonetheless contend that the point source discharge

of pollutants should be addressed either through nonpoint

source programs or state water allocation programs, neither

of which mandates NPDES permits. Apart from running afoul

of the plain meaning of the Act — which requires a permit for

the discharge of pollutants from a point source, see 33 U.S.C.

§§ 1311(a), 1342 — this-argument is flatly contradicted by

the Act’s structure and consistent interpretation and, if

adopted, would severely impair the ability of States to protect

and maintain the quality of their waters.

15

Relying on 33 U.S.C. § 1314(f), Petitioner and amici United

States and City of New York assert (Pet. Br. 3;

U.S. Br. 26; N.Y.C. Br. 14) that the discharge of pollutants from

a point source should not be regulated through permits, but by

‘nonpoint” source programs ~ i.e., programs that address diffuse

runoff not discharged through a discrete conveyance. Although

§ 1314(f) requires EPA to provide guidance for addressing

nonpoint sources of pollution resulting from activities such as

agriculture, mining, construction, or “water flow diversion

facilities,” id. § 1314(£)(2)(A)-(C), (F), nowhere does it dispense

with the permit requirement for point source discharges from

those activities. Indeed, in an EPA enforcement action where a

defendant mining company claimed that 33 U.S.C. § 1314(f)

obviated the need to obtain an NPDES permit, the Tenth Circuit

held that the provision does not create nonpoint source

exemptions from the Act’s NPDES requirement: “Mining and

other categories listed in § 1314(f)(2) may involve discharges

from both point and nonpoint sources, and those from point

sources are subject to regulation.” United States v. Earth

Sciences, Inc., 599 F.2d 368, 373 (10" Cir. 1979).

Petitioner’s reading of 33 U.S.C. § 1314(f) would exclude

for instance, all agricultural activities from the NPDES permit

process, even though the Act itself defines “pollutant” to include

hyena wastes,” 33 U.S.C. § 1362(6), and “point source”

| compass a “concentrated animal feeding o ion,”

id. § 1362(14). Furthermore, EPA regulations nen ie

an NPDES permit for point source discharges from many of the

activities listed in 33 U.S.C. § 1314(f)(2), including those

involving concentrated animal feeding operations, 40 C.F.R.

§ 122.23; mining activities, id. §§ 122.26(a)(1)(ii), (b)(14)(iii);

and construction activities, id. §§ 122.26(a)(9)(i), (b)(14)(x),

(b)( 15)(i), 122.34(b)(4)(i). Because an activity can have

both point and nonpoint attributes, this dual approach is

necessary to achieve the Act’s overall goals and is consonant

with the Act’s policy of “controlling” nonpoint pollution.

16

See 33 U.S.C. § 1251(a)(7) (“[I]t is the national policy that

programs for the control of nonpoint sources of pollution be

developed and implemented in an expeditious manner so as

to enable the goals of this Act to be met through the control

of both point and nonpoint sources of pollution.”).

A simple hypothetical demonstrates how nonpoint source

controls work in tandem with, rather than to the exclusion

of, the Act’s permit requirement. If a nonpoint source control

in an upstream State fails to fully limit the discharge of

pollutants into navigable waters, then as that water moves

downstream to an adjacent State and passes through a point

source there, the downstream State will be powerless to

control the discharge of potentially harmful pollutants into

each of its individual water bodies affected by or connected

to the point source. Moreover, given that it is all but

impossible to control through nonpoint programs some

pollutants found in transferred water (like heat or natural

salt content), any effort to place point source discharges

beyond the Act’s NPDES permit program must be rejected.

The United States further contends that nonpoint source

programs should govern point source transfers of

pollutants from one water body to another because “the

operators of water control facilities typically are not

responsible for the presence of pollutants in the waters they

transport” (U.S. Br. 27). But the point source is an essential

place for controlling the discharge of pollutants, regardless

of whether water control facilities actually add the pollutants

themselves, because the point source controls how, where,

and when pollutants from lower-quality waters are added to

higher-quality waters. The Act’s permit requirement thus

enables States, through their water control facilities, to

control those pollutants where necessary to achieve the Act’s

goals.

o- - -— —_— so - S

17

Petitioner and amici States Colorado and

further suggest (Pet. Br. 35; Colo. Br. 6-1 5) rahe

to States the authority to allocate water, the Act exempts aaa

transfers from NPDES permitting requirements. Although

33 U.S.C. § 1251(g) vests States with the authority to

allocate quantities of water,”’ neither that provision, nor

33 U.S.C. § 1370(2) - which provides that nothing in the

ct should impair any right of the “States with respect to the

waters . . . of such States,” dispenses with the need to obtain

an NPDES permit for interbasin transfers of water that

involve the discharge of pollutants from a point source.

: Indeed, this Court has held that those 1Si

preserve the authority of each State to allocate wh sae ion

as between users,” but “do not limit the scope of water

pollution controls that may be imposed on users who

have obtained, pursuant to state law, a water allocation.”

PUD No. 1, 511 U.S. at 720. The primary “water pollution

control’ contemplated by the Act is, of course, the NPDES

permitting process itself. See Riverside Irrigation Dist. v

Andrews, 758 F.2d 508, 513 (10 Cir. 1985) (“[W]here both

the state’s interest in allocating water and the federal

government's interest in protecting the environment are

5. Section 1251(g) provides:

It is the policy of Congress that the authori

State to allocate quantities of water within ame

shal! not be superseded, abrogated or otherwise impaired

by this chapter. It is the further policy of Congress that

nothing in this chapter shall be construed to supersede

or abrogate rights to quantities of water which have been

established by any State. Federal agencies shall co-

operate with State and local agencies to develop

comprehensive solutions to prevent, reduce and eliminate

pollution in concert with programs fi

or mana

resources. reeraar

18

dation” to be

implicated, Congress intended an accommo 0

best reached” through “the individual permit process. \

Finally, nonpoint source and water allocation —

have not sufficiently protected our waters, even W ~

employed in conjunction with state water quality —

be sure, the simple prohibition on waste disposal toute y

some amici as a substitute for the NPDES permit process

(see Colo. Br. 23-26) hardly prevented the deleterious

discharges at issue here, or in the water transfer —

discussed infra Point II. Moreover, as EPA's most me

survey has found, nearly half of the Nation's waters a

impaired, typically from sources not controlled by ne

permits.’ To require point source discharges of pollutants

involved in water transfers to be addressed solely — -

nonpoint source and water allocation programs therefore wi

frustrate the Act’s goals of “restor[ing] and maintain{ing]

the chemical, physical, and biological integrity of the Nation’s

waters.” 33 U.S.C. § 1251(a).

Il. A PERMIT REQUIREMENT FOR ee oe

TRANSFERS OF WATER INVOLVING Lenn

ADDITION OF A POLLUTANT FROM A oar!

SOURCE ENABLES STATES TO PROTEC

WATER QUALITY. -

The Court should affirm the Eleventh Circuit's decision

to ensure that the Act continues to address serious

environmental harms. The permitting process enables a

to control the discharge of damaging pollutants, and there ry

protect the quality of their receiving waters. If a permit is

is not a true allocation,

6. In any event, the transfer of water here is

but rather rv interbasin disposal into the Everglades of polluted

collected runoff.

j ity Inventory: 2000 Report

7. U.S. EPA, National Water Quality

(Aug. 2002 Fact Sheet) (available at http://www.epa. gov/305b/

2000report/).

@ - — o—<— =< «aS

ae

19

not required for the addition of a pollutant from a lower-

quality water body to a higher-quality water body that, but

for the operation of a point source, would not otherwise flow

into one another, the States’ primary means under the Act to

control the discharge of pollutants will be weakened

immeasurably.

Decisions from other courts of appeal in circumstances

analogous to those presented here highlight the harm of

dispensing with the permit requirement. In Dubois v. United

States Department of Agriculture, 102 F.3d 1273 (1* Cir.

1996), a ski slope sought to pump water from the East Branch

of the Pemigewasset River into Loon Pond, a water body

within the White Mountain National Forest. 102 F.3d at 1277-

78. Loon Pond is a high-altitude water body “unusual for its

relatively pristine nature;” it serves as a drinking water supply

for the Town of Lincoln, New Hampshire. /d. at 1277.

In fact, New Hampshire classified Loon Pond “as a Class A

waterbody, protected by demanding water quality standards

under a variety of criteria.” /d. The East Branch, by contrast,

“is a relatively unprotected Class B waterway under New

Hampshire law.” /d. at 1279. Indeed, the court took judicial

notice that for years the East Branch was “one of the most

polluted rivers in New England, the repository of raw sewage

from factories and towns. It emitted an overwhelming odor

and was known to peel paint off buildings located on its

banks.” Jd. at 1297. Because East Branch water, which

otherwise would not have flowed into Loon Pond but for its

routing by the ski operation, id. at 1297, contained “bacteria,

other aquatic organisms such as Giardia lambia, phosphorus,

turbidity and heat,” id. at 1278, the First Circuit held that

an NPDES permit was required for the transfer, which

added pollutants from a point source to a navigable water,

id. at 1296-1299.

In Northern Plains Resource Council y. Fidelity

Exploration & Development Co., 325 F.3d 1155 (9" Cir.),

20 -

cert. denied, _U.S. __, 72 U.S.L.W. 3280 (Oct. 20, 2003),

a company extracted methane gas from deep underground

coal seams in Montana and, in the process, drew large

quantities of deep ground water to the surface. /d. at 1158.

The company did not add any chemicals to the water before

dumping it into the Tongue River. Jd. In its “natural state,”

however, the water contained suspended solids, calcium,

magnesium, sodium, potassium, bicarbonate, carbonate,

sulfate, chloride, fluoride, aluminum, arsenic, barium,

beryllium, boron, copper, lead, iron, manganese, strontium,

and radium. /d. Further, the ground water was “salty,” raising

concerns by those using the Tongue River for agricultural

irrigation that the salt would break down the soil structure

on farms and ranches. /d. The court held that an NPDES

permit was required under the “plain language” of the Act.

Id. at 1160. “Were we to conclude otherwise, and hold that

the massive pumping of salty, industrial waste water into

protected waters does not involve discharge of a ‘pollutant,’

even though it would degrade the receiving waters to the

detriment of farmers and ranchers, we would improperly

undermine the integrity of [the Act’s] prohibitions.” /d. at

1162 (internal quotations omitted).*

In Catskill Mountains Chapter of Trout Unlimited, Inc.

v. City of New York, 273 F.3d 481 (2d Cir. 2001), the Second

Circuit similarly held that the transfer by tunnel of turbid,

sediment-laden water from the Schoharie Reservoir to the

Esopus Creek, a trout creek several miles away that empties

into a reservoir which provides drinking water for New York

City, requires an NPDES permit. /d. at 484-85, 489-94. The

court reasoned that a contrary holding “would mean that

movement of water from one discrete water body to another

would not be an addition [within the meaning of the Act]

8. In fact, the court found that to not require a permit would

pave the way for someone to pipe “the Atlantic Ocean into the Great

Lakes and then argue that there is no liability under the [Act.]”

Id. at 1163.

21

even if it involved a transfer of water from

. | i a water bod

contaminated with myriad pollutants to a pristine water body

containing few or no pollutants.” /d. at 493.°

The pollutant at issue here, the nutrient phosphorus

provides a common, yet potent, example of why the Act requires

a permit for interbasin transfers of water like that in the present

case. See Miccosukee Tribe, 280 F.3d at 1366. Excess

phosphorus often is the result of upstream activity of sewage

treatment plants, agricultural runoff, farm animal waste, urban

runoff, sediments washed from construction excavations, lawn

fertilizers, or poorly functioning home septic systems." High

ste of ——— in fresh water systems set off 2 chain-

on of events that adversely affect water quality. Ex

phosphorus overfertilizes aquatic plants and he re “_

weather," leading to “algae blooms” and limited water

transparency.'’ As plants and algae die off, the dead material is

consumed by a massively expanding population of bacteria and

other animal life. This overabundant population of bacteria

consumes the dissolved oxygen in the water, creating an

anaerobic” environment uninhabitable to most fish."

9. See also Dague v. Ci Burli

1349, 1354-55 (2d Cir. aie one yap heptge dengednny

505 U.S. 557 (1992) (requiring permit where leachate pond

-polluted

water from landfill flowed through a culvert and into a wetland).

10. National Research Council, Watershed M.

Potable Water Supply, at 164-65 (National A sia teose 98 Ses

>

nth | c y Press 2000)

11. Jd. at 7, 163-64.

12. Id. at 106-07.

13. Id. at 163-65; see also U.S. EPA and US Dep’t of Agric

| ; S. S. of -

Clean Water Action Plan: Restoring and Protecting America’ Waters

(Feb. 14, 1998), at 56 (“Excessive nutrient loadings will .. . result in

me ye! g/owth of macrophytes or phytoplankton and potentially

saat Spice aah head aint 19 ox¥8eN declines, imbalance of

eo health risks, and a general decline of the aquatic

22

Further, a low-oxygen aquatic environment impairs

drinking water because anaerobic water contains a type of

bacteria that generates serious odor and taste problems, as -

well as poor water color.'* Low levels of oxygen also cause

the release of contaminants such as iron, manganese, and

hydrogen sulfide from reservoir bottom sediments, which

further degrade water quality.'* Additionally, excess

phosphorus encourages the growth of organisms that produce

toxins which, at high levels, pose dangers to the health of

humans and animals alike.'* When water containing high

levels of organic material (i.e., dead algae and bacteria) is

disinfected with chlorine, it creates still other chemicals,

which are suspected carcinogens and have been linked to

increased risks of early term miscarriages."’

EPA has found that phosphorus is a leading cause of

water quality impairment. An EPA study released in 2002

reported that in 2000, 45% of the Nation’s lake and reservoir

acres that were assessed failed to meet applicable state water

quality standards, and of those waters so impaired, excess

levels of the nutrients phosphorus or nitrogen were to blame

in 50% of the cases.'* Since phosphorus is present in so many

14. NRC Report at 106-07.

15. Id. at 163-64.

16. Id. at 107, 164.

17. Id. at 2, 107, 112-13, 164; see also 63 Fed. Reg. 69394

(Dec. 16, 1998) (citing study suggesting association between early

term miscarriage and exposure to drinking water with elevated levels

of the disinfection byproduct trihalomethane).

18. U.S. EPA, National Water Quality Inventory: 2000 Report

(released September 2002), at 17-21 (available at http://www.epa.gov/

305b/2000report/) (last checked Nov. 14, 2003).

23

waters, it is likely to be involved in human-induced interbasin

water transfers. To devise an exemption from the Act’s permit

requirement that allows for the transfer of impaired waters

to more pristine waters would contravene the unmistakable

goals of the Act and seriously harm water quality, in

contravention of the unmistakable goals of the Act. )

lil. APPLICATION OF THE ACT’S PERMIT

REQUIREMENT TO INTERBASIN POINT

SOURCE TRANSFERS OF WATER CONTAINING

POLLUTANTS IS NOT UNDULY BURDENSOME.

To affirm the Eleventh Circuit’s decision and require EPA

or delegated States to issue permits for interbasin transfers

of water that involve an addition of a pollutant from a point

source will not unduly tax the resources or capabilities of

regulators. Nor will any ensuing controls on water transfers

render the human-induced m :

eenediiie ovement of water unfeasible or

EPA and delegated States already issue c

permits to address discharges of mor on in ee

circumstances. NPDES “general permits” cover hundreds of

thousands of pollutant discharges from such varied activities

S “rp zed storm water runoff, 40 C.F.R. §§ 122.26, 122.30-

pa : sediment discharges from construction sites more

one acre in size, 40 C.F.R. §§ 122.26(a)(9)(i), (b)(14)(x)

(b)(1 5\(i), 122.34(b)(4)(i); and concentrated animal feeding

operations, 40 C.F.R. §§ 122.23. EPA and delegated States

also issue tens of thousands of individual NPDES permits

for industrial and sewage treatment facilities. '9 And apart

from “general permits” and NPDES permits that cover

19. See http://www.epa. gov/ j ;

(last checked Nov. 14, 2003). gov/compliance/planning/data

24

specific situations, States routinely issue permit-like

“certifications” with respect to federal projects involving

discharges into navigable waters. See 33 U.S.C. § 1341(a), (d);

PUD No. 1, 511 US. at 707-08. Indeed, at least one State,

Pennsylvania, has issued NPDES permits since 1986 for all

interbasin point source transfers of polluted water. See Del-

AWARE Unlimited, Inc. v. Pennsylvania, 508 A.2d 348, 359

(Pa. Commw. Ct. 1986) (requiring NPDES permit for interbasin

water transfer and distinguishing Gorsuch, a dam case, because

“it dealt with water diversion within a single body of water”).”

There is no merit to the City of New York’s assertion that if

upheld, the Eleventh Circuit’s decision will require permits for

“more than two million dams, and countless other diversion

structures, across the nation” (N.Y.C. Br. 13). Whereas the City

speculates that each of the 50 States would issue on average at

least 40,000 additional new permits, Colorado itself suggests only

that “several hundred transbasin diversions/deliveries” in that

state conceivably “could require permits under the holding

of Miccosukee” (Colo. Br. 3 n.2). Issuing the number of

additional permits realistically projected by Colorado is eminently

feasible, given the number of permits already issued by States,

and particularly since “the permitting authority . . . may be able

to issue a general permit that considerably streamlines the

permitting process” (U.S. Cert. Opp_17) in instances where the

transfer of water does not adversely affect the quality of the

receiving water body. It is clear, moreoever, that while New

York City has “‘summon{ed] up a parade of horribles,” “[{t}he

horribles that can be imagined — if they are really so horrible

and ever come to pass — can readily be corrected by Congress”

should the NPDES permit process as enacted truly prove

unworkable in practice. Eastern Assoc. Coal Corp. v. United

Mine Workers, 531 U.S. 57, 69 (2000) (Scalia, J., concurring).

20. See also Pennsylvania Dep’t of Envtl. Prot., Policy for

Permitting Surface Water Diversions (Mar. |, 1998) (available by

searching http://w ww.dep.state.pa.us/eps/search/search.asp for

document “362-2000-003”) (last checked Nov. 14, 2003).

25

| F urther, the NPDES permitting mandated by the Eleventh

Circuit’s decision is consistent with fast action. Delegated

States have the ability and authority to marshal resources

and expedite review. Because these States are familiar with

their own water quality criteria and the designated uses of

the affected bodies of water, they are well-positioned to act

quickly on permit applications (see U.S. Cert Opp. 17)

Indeed, in most instances, delegated States may issue an

NPDES permit based on State-develuped water quality

standards and — inasmuch as there are no national effluent

limitations for water diversions — in keeping with state-

d g

Nor is it realistic to suggest, as Co

New Mexico do (Colo Br. 15-17), that hander ooen

permit for transfers of water will effectively prevent such

transfers altogether. In most instances, NPDES permits are

readily available where the water being transferred is of a

quality that would not impair the quality of the receivin

water. ms Indeed, receiving waters frequently can cmanetintes

or assimilate pollutants without violating water qualit

standards. For this reason, permits are granted in weed

g

Even where there is a likelihood that

transfer will impair the quality of the meet rence es

the NPDES program provides EPA and delegated States

with the ability to require the implementation of pollutant

removal technologies, management practices, and operational

21. Colorado, for example, notes that “

. . t “[o]f its 107,403 mil

of streams, only 4,964 (4.6%) are designated as ‘impaired,’ os

a water quality standards or designated uses, under the Clean

ater Act, 33 U.S.C. § 1313” (Colo. Br. 3 n.2).

26

modifications. See 33 U.S.C. §§ 1314(c), (e). Moreover, the

Act and its underlying regulations provide for “schedules of

compliance” to allow long-term implementation of corrective

measures necessary to achieve compliance with applicable

water quality standards, while allowing important, though

problematic, water diversions to continue in the short-term.

33 U.S.C. § 1362(17); 40 C.F.R. § 122.47. Indeed, the United

States has recognized that “an NPDES permit can provide

considerable flexibility in any schedules for compliance”

(U.S. Cert. Opp. 17). Cf Whitman v. American Trucking

Ass'ns, Inc., 531 U.S. 457, 495 (2001) (Breyer, J., concurring)

(noting numerous inherent flexibilities in the Clean Air Act

“sufficient to avoid the extreme results that some of the

industry parties fear”’).

There is, therefore, no basis for creating an exception

to the Act’s permit requirement on the ground of necessity.

In fact, the Eleventh Circuit’s decision to affirm that a permit

is required under the circumstances but to vacate the

injunction prohibiting the operation of the pump station at

issue, Miccosukee Tribe, 280 F.3d at 1369-1371,

demonstrates that the Act strikes a reasonable and appropriate

balance where competing considerations are at stake. See

Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982)

(courts may exercise equitable discretion to allow vital

discharges that otherwise violate Federal Water Pollution

Control Act to continue pending application for permit).

27

CONCLUSION

For the foregoing reasons, the jud

, ent of th

appeals should be affirmed. oes paeae es

Respectfully submitted,

Euiot Sprrzer

Attorney General of the

State of New York

Peter H. LEHNER CarTun J. HALLIGAN*

Chief, Environmental Solicitor General

Protection Bureau

assests MICHELLE ARONOWITZ

M. Y Deputy Solicitor General

Assistant Attorney General

Rosert H. Easton

Assistant Solicitor General

120 Broadway

New York, NY 1027

* Counsel of Record (212) 416-8016 |

Attorneys for Amici Curiae

(Additional Counsel Listed Inside Front Cover)