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

No. 02-626

——

a

In the Supreme Court of the United/States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

Vv.

~ MICCOSUKEE TRIBE OF INDIANS, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE FORMER

ADMINISTRATOR CAROL M. BROWNER,

FORMER ASSISTANT ADMINISTRATORS

CHARLES FOX AND ROBERT W. PERCIAEPE AND

FORMER GENERAL COUNSELS JONATHAN Z.

CANNON AND JEAN I. NELSON OF THE UNITED

STATES ENVIRONMENTAL PROTECTION

AGENCY IN SUPPORT OF RESPONDENTS

RICHARD J. LAZARUS

COUNSEL OF RECORD

GEORGETOWN UNIVERSITY LAW CENTER

600 NEW JERSEY AVENUE, N.W.

WASHINGTON, D.C. 20001

(202) 662-9129

‘Attorney for Amici

QUESTION PRESENTED

The Clean Water Act defines a “point source” as “any

discernible, confined, and discrete conveyance including **

* any pipe” and further defines the “discharge of a pollutant”

as “any addition of any pollutant to navigable waters from

any point source.” 33 U.S.C. §§ 1362(12)&(14). Petitioner

operates a pumping station that consists of three pipes, each

of which conveys 960 cubic feet of water per second

containing high concentrations of phosphorous into a

pristine body of navigable waters within the Florida

Everglades. The question presented is:

Whether petitioner's operation of its three pipes constitutes

a“ discharge of a pollutant,” within the meaning of the Clean

Water Act.

Table of Contents

Question Presented ........-.ceeeereeeeeeerrrsrees i

Interest of Amici .........---ccce cece ceeeeereeeeeeee 1

en 2

Introduction and Summary of Argument .......------ 2

Argument ........-eseceeeeeeeeeeercrseeseceeeeees 4d

I. The plain meaning of the Clean Water Act

compels the conclusion that petitioner's

three pipes result in point source discharges .... 4

A.

D.

Petitioner's pipes result in point source

discharges because they are discernible

conveyances that add pollutants to a

navigable water body ....-.-.--++++++++* 5

EPA’s consistent interpretation of the

Clean Water Act and its congressional

amendment confirm the statute's

plain meaning .......--+0+eeeeeeeeeeees 8

Petitioner's reading threatens well

established and important Clean

Water Act programs ......--++++eeeees 12

The Solicitor General's alternative inter-

pretation of the Clean Water Act

is equally flawed ........-++++eeeeeeees 14

II. Petitioner's reliance on “ principles of statutory

interpretation” to defeat the Clean Water Act's

plain meaning is misplaced ........-.-++++++: 19

A. The plain meaning of a statute is con-

trolling ......-.:eeeeeeeeeeeeeeeeeeeees 19

Application of the Clean Water Act accord-

ing to its plain terms neither raises serious

federalism concerns nor otherwise leads to

any absurd or disastrous consequences ... 21

ili

1. The Clean Water Act, including

rather than transgresses state

2. Subjecting petitioner's pumping

station to Section 402 would not

lead to massive administrative

burdens on state authorities ........

Ill. Petitioner's sole recourse is to persuade

Congress of the merits of their policy

argumentS ......-..-eeeeeeeereceeeeeeeees

Conclusion ......... cece cece eect ee eee ne eeeeenees

Appendix ........-eceeeeeeeeeeeeeeeenenererceees

iv

OO A en and

Table of Authorities

Cases:

Catskill Mountains Chapter of Trout Unlimited, Inc. v.

City of New York, 273 F.3d 481 (2d Cir. 2001) ...... 13

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

Council, Inc., 467 U.S. 837 (1984) ......-. 4,16, 19, 25

Church of Holy Trinity v. United States,

143 U.S. 457 (1892)... 2... cece eee rece e eens 23

Committee to Save Mokelumne River v. East Bay

Municipal Utility District, 13 F.3d 305

(9th Cir. 1993)... 0... c cece eee e reer eee e neers 13

Dague v. City of Burlington, 935 F.2d 1343

(72 Ces oe ) ) ee 13

Diamond v. Chakrabarty, 447 U.S. 303 (1980) .....-.. 20, 29

Dubois v. United States Dept. of Agric.,

102 F.3d 1273 (1st Cir. 1996) .... 2.6000 e eee eee eee 13

E.I. DuPont de Nemours & Co. v. Train, 430 U.S. 112

es ee 22

EPA v. National Crushed Stone Ass'n, 449 U.S. 64

(1980) 0... ccc eee e cece eee n eee eeeeteneneeees 22

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469

(7) oe 4

Freytag v. Commissioner of Internal Revenue,

501 US. 868 (1991) .. 0.2... cece e eee reece reer eee 29

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) ..... 29

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999) ..... 4

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) .... 0... cece eee ee ence ees 21, 22

Cases (continued):

Montgomery Environmental Coalition v. Costle,

646 F.2d 568 (D.C. Cir. 1980) ........-- ee eee eee: 13

National Organization for Women, Inc. v. Scheidler,

510 US. 249 (1994) . 0... ec eee eee cece eee eeees 20

National Resources Defense Council, Inc. v. Costle,

568 F.2d 1369 (D.C. Cir. 1977) .....----- 9, 10, 12, 27

Pennsylvania Dept. of Corrections v. Yesky,

524 U.S. 206 (1998) .. 1... cece cece cece eee eeeees 20

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) ......-.- 20

Public Utility Dist. No. 1 v. Washington Dept. of Ecology,

511 US. 700 (1994) ... 2... cece eee e eee ee eees 11, 23

Salinas v. United States, 522 U.S. 52 (1997) ....---+-+- 20

Sierra Club v. Abston Construction Co., 620 F.2d 41

(5th Cir. 1980) .. 2.2... s cece e cece eee eeeeces 12, 13

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003) ... 15

United States v. Earth Sciences, Inc., 599 F.2d 368

(10th Cir. 1979) .... 6... cece cece ee ee ee eeees 12, 13

United States v. Mead Corp., 533 U.S. 218 (2001) ...... 19

United States v. Riverside Bayview Homes, Inc.,

474 US. 121 (1985) ......---- cece renee 15, 20-21, 21

United States v. Turkette, 452 U.S. 576 (1981) .....---- 20

Whitman v. American Trucking Ass'n,

531 U.S. 457 (2001) ....- 6. eee eee cece eees 6-7, 11

Statutes and Regulations:

Clean Air Act, 42 U.S.C. § 7409 «0... 52sec eee eres 23

Clean Water Act, 33 U.S.C. §§ 125l et seq .....-. passim

Subch. I, 33 U.S.C. §§ 1251-1274

§ 101(g), 33 U.S.C. 125 1(g) .-.------e ees 10, 11

vi

Statutes and Regulations (continued):

Clean Water Act

Subch. II, 33 U.S.C. §§ 1281-1301

§ 208, 33 U.S.C. § 1288 ......... cece cere eee: 11

§ 208(b)(2)(F), 33 U.S.C. § 1288(b)(2)(F) ..----- 12

Subch. III, 33 U.S.C. §§ 1311-1330

§ 301,33 US.C.§ 1311 .........--eeee: 5,11,15

§ 301(a)-(b), 33 U.S.C. § 1311(a)-(b) ..------++-> 7

§ 301(b), 33 U.S.C. § 1311(b) ...--- ++ eee: 22

§ 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C) - ----- - 23

§ 301(g), 33 U.S.C. § 1311(g) .---- ++. eee eee 30

§ 301(h), 33 U.S.C. § 1311(h)...----- +--+ 7,30

§ 301(i), 33 U.S.C. § 1311(i) ...---- eee eee eee 30

§ 303(a), 33 U.S.C. § 1313(a) ..---- eee eee eres 23

§ 303(a)-(d), 33 U.S.C. § 1313(a)-(d) ......---- 23

§ 303(c), 33 U.S.C. § 1313(C) ..-- +e rere neers 23

§ 303(d) 33 U.S.C. § 1313(d) ...----e sees eres 23

§ 304(b), 33 U.S.C. § 1314(b) ...-.---- eee ee ees 22

§ 304(e), 33 U.S.C. § 1314(e) ...----- eee reese 12

§ 304(f), 33 U.S.C. § 1314(f)...------- eee ee 10

§ 304(f)(2), 33 U.S.C. § 1314(f)(2) ..-.------ 11,12

§ 304(f}(2)(F), 33 U.S.C. § 1314(F)(2)(F) .-.----- 11

Subch. IV, 33 U.S.C. §§ 1341-1346

§ 402, 33 US.C. § 1342 ........ee eee eeee passim

§ 402(a), 33 U.S.C. § 1342(a) ....-----e reer eee 22

§ 402(a)(1), 33 U.S.C. § 1342(a)(1) ..-.-.---+-- 19

§ 402(b), 33 U.S.C. § 1342(b) ....---- ee eee eee 22

§ 402(1), 33 U.S.C. § 1342(1) ....---- ee eee eee 30

§ 402(1)(1), 33 U.S.C. § 1342(I)(1) ...------+-+> 24

§ 402(1)(2), 33 U.S.C. § 1342(I)(2) ..------ +--+ 10

§ 402(p), 33 U.S.C. § 1342(p) ...-- +--+ seer ees 30

§ 404, 33 U.S.C. § 1344 ......- cece cence ees 27

Statutes and Regulations (continued):

Clean Water Act

Subch. V, 33 U.S.C. §§ 1361-1377

§ 502, 33 U.S.C. § 1362 ........ cece cree rere 5

§ 502(6), 33 U.S.C. § 1362(6) ...... eee e eee ees 5

§ 502(7), 33 U.S.C. § 1362(7) ...... 6. ee ee eee: 16

§ 502(12), 33 U.S.C. § 1362(12) ........--. passim

§ 502(14), 33 U.S.C. § 1362(14) ........--. passim

Water Quality Act of 1987,

Pub. L. No. 100-4, 101 Stat. 7 (1987) .........+++: 10

33 C.F.R. § 328.3 (2003) ......- cece eee cece cece eens 15

40 C.F.R. § 122.2 (2003) ... 2... cece ener e eee eee eens 9

40 C.F.R. § 122.28 (2003) ... 2... eee e eee eee eee eees 26

40 C.F.R. § 122.44(a) (2003)... 2. e ee ee eee 22

40 C.F.R. § 122.47 (2003) ....... eee eee eee ee eens 26

40 C.F.R. § 123.25 (2003) ... 2... cece cere eee teens 26

Miscellaneous:

Authority to Exclude Point Sources from the Permit

Program, EPA General Counsel Opinion

(August 3, 1973), reprinted in U.S. EPA

General Counsel Opinions (Envt'l Law

Pub. Serv. 1979) ..... cece cece ee eeeeeeeee 9,12

Sir Francis Bacon, The Elements of the Common

Lawes of England (1630) .........0+++seeeeeeees 8

Brief for EPA, Alaska v. EPA, No. 02-658 ........+++ 19

Combined Sewer Outfall Control Policy,

59 Fed. Reg. 18688 (1994) ........00eeeeeeeeees 7-8

Del-Aware Unlimited, Inc. v. Pennsylvania,

1984 Envt'l Hearing Bd. 178 (1984) ........--++++. 28

viii

Miscellaneous (continued):

Final National Pollutant Discharge Elimination

System General Permit for Storm Water

Discharges from Construction Activities,

68 Fed. Reg. 39087 (2003) ........:eeeeeeeeeeees 27

Florida Dept. of Environmental Protection Emergency

Final Order Case DEP No. 99-0385, Website of

the Florida Dept. of Envt’l Protection, http://www.

dep.state.fl.us /legal/ legaldocuments/ finalorders /

1999 /DEP99-0385.doc 2.1... cece eee eeeeeeeeees 27

Form and Guidelines Regarding Agricultural and

Silvicultural Activities, 38 Fed. Reg. 18000

(1973)... cececenccececesesccenecereneeenesess 8

National Pollutant Discharge Elimination System, ~

Website of U.S. EPA, http:/ /cfpub.epa.gov/npdes/

statestats.cfrm . 6... cece eee eee eee e eee eeeenees 22

In Re Riverside Irrigation District, Ltd. and 17 others,

Decision of the General Counsel No. 21

(June 27, 1975), reprinted in U.S. EPA General

Counsel Opinions (Envt'l Law Pub.

Serv. 1979)... . cece cece cere e eee eeeeeeeees 17, 18

S. Rep. No. 92-414, 92d Cong., 2d Sess. (1972) .....-. 21

The Honorable Antonin Scalia, A Matter of

Interpretation (1997) ........2sseeeeeee eee ees 23

Website of the South Florida Water

Management District, http:/ / www.sfwmd.gov/

org/wrp/wrp_evg/projects/404permit ........--- 27

INTEREST OF AMICI CURIAE

Amici Curiae are a former Administrator, Assistant

Administrators, and General Counsels of the United States

Environmental Protection Agency.’ They were each once

responsible for administering the Clean Water Act. These

responsibilities extended to overseeing the interpretation of

the statutory provisions in dispute in this case in general

rulemakings and specific permit adjudications. Each amicus

has a longstanding professional expertise relevant to the

question presented and a strong personal interest in this

Court’s accurate resolution of the important legal issue

raised in this case and the protection of the nation’s waters.

Atstake in this case is the jurisdictional scope of the Clean

Water Act's regulation of point source discharges, which is

the single most important aspect of that Act. The statutory

constructions advanced by petitioner and their amici,

including the Solicitor General, are erroneous, contrary to

well-settled understandings, and would devastate the

statute’s ability to achieve its water quality protection goals.

Under petitioner's view, any point source that did not

itself generate in the first instance the pollutants that it

conveyed would escape the Section 402 permit requirement.

This exemption would extend to many of the most significant

point source discharges currently regulated by the Water

Act. The Solicitor General's proposed construction of the law

is narrower - all point source discharges between different

bodies of navigable water would be exempted - but at the

end of the day would likewise seriously frustrate the law's

purposes. A fuller description of the backgrounds of the

individual amici is set forth in an appendix to this brief.

1 This brief is filed with the parties’ written consent, copies of which

have been filed with the Clerk. Pursuant to Rule 37.6, Amici affirm

that no counsel for any party authored this brief in whole or in part.

Only amici or their counsel made a monetary contribution for the

preparation or submission of this brief.

2

STATEMENT

Amici adopt the Statement set forth in respondents’ briefs.

INTRODUCTION AND SUMMARY OF ARGUMENT

According to petitioner, the conveyance by three massive

pipes of 960 cubic feet per second of heavily polluted water

into a pristine body of navigable waters does not constitute

an “addition of any pollutant to navigable waters from any

point source” within the meaning of the Clean Water Act, 33

US.C. § 1362(12). The plain meaning of the statutory

language compels rejection of that argument.

Every element of a point source discharge is presented by

the facts of this case. The statute expressly defines “point

source” to include a “pipe.” The phosphorous that those

pipes convey are clearly “pollutants.” And, the receiving

waters to which those pipes directly add their contaminated

effluent are indisputably “navigable.”

Resisting the plain meaning of the statutory language,

petitioner contends that affirmance of the court of appeals’

judgment would transgress principles of federalism by

subjecting water allocation management to federal water

pollution control requirements. Petitioner’s reliance,

however, on principles of federalism and related canons of

statutory construction is triply misplaced.

1. First, the only canon of statutory construction relevant

to this case is that where, as in this case, the meaning of the

relevant statutory language is clear, that is the end of the

judicial inquiry. No matter how many powerful entities

may prefer a different policy result, the short answer is that

the courts are not the constitutionally accepted avenue for

securing an amendment of an Act of Congress. Indeed, the

presence of so many powerful interests in support of

petitioner's preferred policy simply underscores the

fundamental importance of safeguarding the exclusive

constitutional design for lawmaking. There is certainly little

reason for concern that these same entities will prove

powerless to have their voices heard in the halls of Congress.

3

2. The exaggerated claims set forth by petitioner and its

amici of the dire consequences of affirming the judgment

below are, moreover, completely misdirected. There will be

no widespread imposition of federal water pollution control

requirements on state water allocation programs. The kind

of direct pumping of large amounts of pollutants from one

body of water to another distinct pristine water body

presented by this case is readily distinguishable from

traditional water allocation and management activities

undertaken by state and local governments. The Clean

Water Act already expressly excludes from Section 402

permit requirements the vast majority of those traditional

water allocation activities, including all withdrawals from

water bodies and all irrigation return flows. And, even for

any other traditional water allocation programs for which an

exclusion is not so clear on the face of the statute, there is

sufficient statutory ambiguity, as applied to those programs,

to provide EPA with the clear discretionary authority to

construe the permitting requirements not to apply.

3. The third flaw in petitioner's federalism argument is

that it fundamentally misapprehends the actual role that

States play in the operation of the Clean Water Act's Section

402 permit program. By deliberate congressional design, it

is the States, not EPA, that are primarily responsible for the

administration of virtually all aspects of the Clean Water Act

Section 402 permit program.

The States can assume primary responsibility for

administering the Section 402 permit program and 47 States,

including Florida, have chosen to do just that. These States,

not EPA, issue the Section 402 permits. And, as the

permitting agencies for the kinds of nonindustrial discharges

atissue here, they possess considerable discretion in crafting

permit requirements. The Clean Water Act, accordingly,

promotes rather than transgresses State sovereignty.

4. Finally, while the Solicitor General correctly re »cts

petitioner’s core arguments, his competing interpretation of

4

the Act --as exempting discharges between distinct bodies of

navigable water -- is also defeated by the plain meaning of

the statutory language. The Solicitor General's position is,

moreover, flatly inconsistent with the views of EPA, as

authoritatively expressed by that Agency as long ago as 1975.

It is, moreover, the formal interpretation of EPA, not that

expressed in a brief filed by the Solicitor General in litigation

on behalf of the “United States,” that is entitled to judicial

deference under Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984).

ARGUMENT

The judgment of the Eleventh Circuit should be affirmed.

It is consistent with the Clean Water Act's plain meaning,

statutory structure, and legislative history, EPA's

longstanding interpretation, and Congress's revisions of the

law. The doomsday rhetoric of petitioner and its amici,

notwithstanding, none of their proffered canons of statutory

construction for defeating the statute’s plain meaning has

any bearing on this case. The operation of petitioner's three

massive pipes, each of which conveys 960 cubic feet per

second of heavily polluted water into a pristine body of

navigable waters, is just what it appears to be: an “addition

of any pollutant to navigable waters from any point source”

requiring a Section 402 permit. 33 U.S.C. §§ 1342, 1362(12).

I. The Plain Meaning of the Clean Water Act

Compels the Conclusion that Petitioner’s Three

Pipes Result in Point Source Discharges

“ As in any case of statutory construction, [this Court's]

analysis begins with ‘the language of the statute.’ And

where the statutory language provides a clear answer, itends

there as well.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,

438 (1999), quoting Estate of Cowart v. Nicklos Drilling Co.,

505 U.S. 469, 475 (1992). The plain meaning of the Clean

Water Act provides just sucha “clear answer” to the question

presented in this case: The Act's Section 402 permit

requirements apply to the operation of petitioner's pumping

5

station, including its conveyance of contaminated water

through three pipes into navigable waters.

A. Petitioner’s Pipes Result In Point Source Discharges

Because They Are Discernible Conveyances That

Add Pollutants To A Navigable Water Body

1. It is common ground that whether petitioner's

pumping station S-9 requires a Section 402 permit turns on

whether its operation constitutes a “discharge of any

pollutant,” within the meaning of Section 301 of the Act, 33

US.C. § 1311. Itis further common ground that in Section

502, 33 US.C. § 1362, Congress expressly provided

definitions for several of the Water Act's statutory terms,

including the three terms most relevant to determining the

scope of Section 402: (1) “discharge of a pollutant”; (2)

“pollutant”; and (3) “point source.” Each of these statutory

definitions is set forth below:

The term “discharge of a pollutant” * * * means **

* “any addition of any pollutant to navigable

waters from any point source***. 33 U.S.C.

§1362(12).

The term “pollutant” means * * * solid waste, * *

* sewage, *** chemical wastes * * * or discarded

* * * industrial, municipal, and agricultural

waste discharged into water. 33 U.S.C. § 1362(6).

The term “point source” means any discernible,

confined, and discrete conveyance, including

but not limited to any pipe ** *. 33 USC.

§1362(14). P

Petitioner's operation of the three pipes in pumping

station S-9 clearly results in a “discharge of any pollutant”

within the plain meaning of the Clean Water Act, especially

as expressly provided for by the Act's specific definitions.

The pipes are without a doubt each a “point source,” given

that the statutory definition of point source expressly extends

to “any pipe.” Nor does either petitioner or the Solicitor

General here contest that the waters of Water Conservation

6

Area-3A (WCA-3A) in which those pipes each pump 960

cubic feet of contaminated effluent per second constitute

“navigable waters,” within the meaning of the Water Act.

The only remaining statutory inquiries, therefore, are

whether the operation of these pipes results in an “ addition”

of pollutants “from” the pipes “to” the receiving body of

navigable waters. Here, too, the facts of the case compel an

affirmative response. The pipes each convey effluent into the

WCA-3A that contains concentrations of phosphorous far

higher than those already in the receiving waters. The pipes

are the immediate, proximate source of the phosphorous

pollutants in the WCA-3A. They are not some remote,

incidental but-for cause. Hence, it cannot be seriously

gainsaid that there is an “addition” “from” the pipes “to” the

WCA-3A of “pollutants.”

2. Petitioner nonetheless gamely disputes (Br. 26-29) that

the operation of its three pipes constitutes a “ discharge” on

three distinct, yet ultimately closely related, grounds.

According to petitioner, the pipes do not result in an

“addition,” do not convey “pollutants,” and any pollutants

that are conveyed by the pipes are not “from” the pipes even

if the pipes might otherwise satisfy the definition of a “point

source.” Each of these arguments rests on the same central

fact: the phosphorous did not originate in the point source

but was the result of runoff into waters that were

subsequently conveyed by petitioner’s point sources into the

WCA-3A. According to petitioner, the phosphorous lost its

status as a “pollutant” prior to reaching petitioner's pipes,

petitioner's pipes cannot be deemed to have “add[ed]”

pollutants already in water, and the phosphorous cannot be

fairly deemed to be “from” petitioner's pipes.

“Were it not for the hundreds of pages of briefing

[petitioner and their amici] have submitted on the issue, one

would have thought it fairly clear that this text does not

permit” any such possible reading of the Clean Water Act.

Cf. Whitman v American Trucking Ass’n, 531 U.S 457, 465

oe — ~—— er

7

(2001). | As posed by the Clean Water Act, whether a

“ discharge” exists turns on whether there is “any addition of

any pollutant to navigable waters from any point source.” 33

U.S.C. § 1362(12). The only “navigable waters” relevant to

that statutory inquiry are the receiving waters, or the WCA-3A

in this case. And the only relevant question is whether, vis

a vis these receiving waters, there was an “addition” of

phosphorous “to” these waters and whether that addition

came “from” petitioner's three pipes. The indisputable

answer to all these questions is “yes.”

There is absolutely nothing in the statute’s definition of

“pollutant” to admit of an interpretation that a pollutant

such as phosphorous loses its status as a pollutant (and

becomes merely “pollution”) once it is being conveyed by

water. Nor is there even the remotest ambiguity presented

by the term “from” to allow for petitioner's extraordinary

claim that the point source must itself be the original source

of the pollutant for the pollutant to be “from” the “point

source.” After all, “point source” is specifically defined to

include a “conveyance” (33 U.S.C. § 1362(14)), which is

hardly consistent with petitioner's claim that the point source

must itself somehow generate the pollutant.

No doubt that is why publicly owned treatment works

(POTWs), which often do no more than filter out and pass

through to navigable waters pollutants originating from

nonpoint sources, are subject to regulation as point source

discharges under the Clean Water Act. See 33 U.S.C. §§

1311(a)-(b); see e.g., id. § 1311(h) (referring “to the discharge

of any pollutant from a publicly owned treatment works”).

POTWs do not necessarily generate or otherwise create

pollutants in the first instance; yet the Act treats them as

point source dischargers subject to Section 402.?

? EPA has promulgated programs for other comparable point source

discharges that, like the discharges at issue in this case, originated in

nonpoint source runoff. See, e.g., Combined Sewer Outfall Control

Indeed, petitioner's notion of causation underlying its

proffered definition of “from” would turn traditional notions

of causation wholly on their head. See Sir Francis Bacon, The

Elements of the Common Lawes of England, Reg. I (1630)

(“In jure non remota causa sed proxima spectatur.”). The

immediate, most proximate cause of an injury to receiving

waters - in this case, petitioner's three pipes - would fall

outside the scope of regulation. Instead only the original

source of the phosphorous, far removed in time and space

from the ultimate injurious actions deliberately taken by

petitioner's three pipes in pumping massive amounts of

contaminated water into the WCA-3A, would be considered

the exclusive legal cause of the injury.

B. EPA’s Consistent Interpretation of the Clean Water

Act And Its Congressional Amendment Confirm

The Statute’s Plain Meaning

The statute’s plain meaning is further confirmed by EPA’s

consistent administrative interpretation of the relevant

provisions as well as by subsequent congressional

amendment of the Act.

1. In 1973, just months after Congress passed the statute,

EPA conducted a formal rulemaking in which it concluded

that when rain runoff from agricultural and silvicultural

activities ultimately reached pipes, ditches and channels, any

effluent containing chemical contaminants conveyed by

those pipes, ditches, and channels into navigable waters

constituted point source “discharges of a pollutant,” within

the meaning of the Clean Water Act. See Form and Guidelines

Regarding Agricultural and Silvicultural Activities, 38 Fed. Reg.

18000 (1973). As carefully explained by the EPA General

Counsel in a formal opinion issued on August 3, 1973,

discussing the legal status of runoff from farms and other

activities that flows into pipes and ditches that convey that

Policy, 59 Fed. Reg. 18688, 18689 (1994) (“CSOs are point sources

subject to NPDES permit requirements. ”).

PTE We’ a ee

9

effluent into navigable waters, “there is little doubt that

conveyances meeting the definitional requirements of §

502(14) are point sources; whether such conveyances appear

on farms or elsewhere. Accordingly, it is not legally tenable

to treat farm discharges as nonpoint sources.” EPA General

Counsel Opinion (August 3, 1973), Authority to Exclude Point

Sources from the Permit Program, reprinted in U.S. EPA General

Counsel Opinions (Envt’l Law Pub. Serv. 1979). Hence, as

early as 1973, EPA squarely rejected petitioner's claim that

the pollutants must originate in the point sources themselves

rather than, as the statute expressly provides, be simply the

“conveyance” of pollutants that reached waters prior to the

point sources.’

EPA's current regulatory definition of “discharge of a

pollutant” is to the same effect. It defines the term as

including “additions of pollutants into waters of the United

States: from surface runoff collected or channeled by man *

**” 40 CER. § 122.2. Of course, such a “chanel[ling]” of

runoff is precisely what petitioner claims, notwithstanding

EPA's regulation, is not a discharge even when deliberately

pumped into a navigable water body.*

2. Formal actions taken by Congress since 1972 likewise

the point sources did not plainly constitute “ discharges.” However,

the D.C. Circuit, in Natural Resources Defense Council, Inc. v. Costle, 568

F.2d 1369, 1377 (D.C. Cir. 1977) ruled that “the EPA Administrator

does not have authority to exempt categories of point sources from

the permit requirements of § 402.”

. No doubt that is why the Florida Department of Environmental

Protection apparently treats as point source discharges subject to

Section 402 analogous activities of petitioner that manage nutrients

contained in stormwater. See note 11, infra.

10

make clear that Congress shares EPA’s view of the plain

meaning of point source discharges regulated by Section 402.

Soon after EPA declared its view of the meaning of point

source and the D.C. Circuit ruled that EPA must regulate all

such sources pursuant to Section 402 (NRDC v. Costle, 568

F.2d 1369 (D.C. Cir. 1977)), Congress enacted a specific

amendment to the definition of point source to exclude

irrigation return flows. See 33 U.S.C. § 1362(14). By narrowly

singling out for statutory exemption just this one category

out of many runoff-related point sources covered by EPA's

interpretation and the D.C. Circuit's ruling, Congress

essentially acquiesced in the inclusion of those other sources

as discharges subject to Section 402.

Congress's similar decision in 1987 toexempt from Section

402 permit requirements certain other “stormwater runoff,”

particularly that resulting from “oil, gas, and mining

operations” (33 U.S.C. § 1342(1)(2)) provides even further

support for our view that Congress in no manner embraced

petitioner's understanding of a point source. See Water

Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7, 65-66

(1987). Congress expressly defined the exempted category as

“discharges of stormwater runoff [specific mining and oil

and gas operations] composed entirely of flows which are

from conveyances * * * used for collecting and conveying

precipitation runoff and which are not contaminated by

contact with * * * any overburden, raw material, intermediate

products, finished products, byproduct, or waste products

located on the site of such operations.” Id. Of course, if

petitioner were correct about its interpretation of the

meaning of “discharge of a pollutant” any such statutory

exemption would have been wholly unnecessary; such point

source conveyances of runoff wherein the point source did

not itself create the pollutants would already be exempt

3. Finally, there is no merit in petitioner's contention that

this Court should read Sections 101(g) and 304(f) as

implicitly amending the Clean Water Act's express definition

11

provisions so as to create an exemption for all “movement”

of water that States may otherwise regulate. Neither of these

statutory “mouseholes” could remotely sustain the

“elephant” petitioner finds in them. Whitman v. American

Trucking Ass'n, 531 U.S. at 468.

Section 101(g) simply declares general congressional

policy not to impair State water allocation authority. It does

not purport to modify the Act’s plain meaning or create a

“water movement” exception to point source discharges. As

this Court explained in Public Utility Dist. No. 1 v. Washington

Dept. of Ecology, 511 U.S. 700, 720 (1994), “Section{] 101(g)

preserve[s] the authority of each State to allocate water

quantity as between users; [it] do[es] not limit the scope of

water pollution controls that may be imposed on users who

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

In all events, “the authority of each State to allocate

quantities of water within its jurisdiction” is not called into

question by the decision below. See 33 U.S.C. § 1251(g).

Petitioner here is not just engaging in water allocation. It is

discharging pollutants through point sources into navigable

bodies of water. Were Section 101(g) read, as petitioner

suggests, to exempt from Clean Water Act jurisdiction all

discharges of pollutants that result from conveyances of

water, Section 301's ban on discharges of pollutants in the

absence of a permit would be quickly rendered a legal

nullity. Hardly a point source discharge occurs in the

absence of water being utilized as the transporting medium.

Section 304(f)(2) is likewise beside the point. To be sure,

Section 304(f)(2)(F) instructs the EPA Administrator to issue

information to Section 208 planning agencies “information

including * * * processes, procedures, and methods to control

pollution resulting from * * * changes in the movement, flow,

or circulation of any navigable waters * * * including changes

caused by the construction of dams, levees, channels,

causeways, or flow diversion facilities.” But it has been

settled law for decades that not every one of those activities

12

described in Section 304(f)(2) pertains exclusively to

nonpoint sources and that many of those same activities,

which extend to runoff from agricultural, silvicultural,

mining, and construction, are sometimes point sources and

sometimes nonpoint sources. Both the federal courts of

appeals and EPA have long expressed that view.”

In any event, this is not a case where the court below ruled

(or where we contend) that water quality problems caused

by mere “movement, flow, or circulation” or navigable

waters are subject to NPDES permits. It is only point source

conveyances of waters that contain pollutants to receiving

navigable waters that fall within the scope of Section 402 .

**zeeee

In short, wholly missing from the 30-year history of the

Clea.. Water Act’s administration by EPA and its revision by

- Congress is even a scintilla of support for petitioner's

strained reading of the statute, which they nonetheless

presumably advanceas the Act's plain meaning. Instead, the

actions of both EPA and Congress are entirely in harmony

with the plain meaning embraced by the court of appeals

below, which we urge this Court to uphold.

C. Petitioner's Reading Threatens Well Established

And Important Clean Water Act Programs

1. Indeed, because EPA’s settled administrative

interpretation is inconsistent with petitioner's position, were

this Court to embrace petitioner's reading of the

jurisdictional scope of Section 402, such a ruling would call

5 See US. v. Earth Sciences, Inc. 599 F.2d 368, 372 (10" Cir. 1979) ;

Sierra Club v. Abston Construction Co. 620 F.2d 41, 44 (5" Cir. 1980);

NRDC v. Costle, 568 F.2d at 1377; EPA General Counsel Opinion

(August 3, 1973), Authority to Exclude Point Sources from the Permit

Program (“To be sure, sections 208(b)(2)(F) and 304(e) indicate that

Congress thought that some agricultural runoff would not be a point

source. However, these sections cannot be read to mean that pipes,

ditches, etc., are not point sources when they occur on farms.”).

13

into question the legality of a vast number of longstanding

and important Clean Water Act programs. Point source

regulation of stormwater discharges, combined sewer

outfalls, and runoff from mining, construction, and

agricultural activities that flow into discrete point sources

would all potentially fall outside the scope of Section 402.

Decades of federal court of appeals rulings upholding the

applicability of Section 402 to a wide variety of point source

discharges would likewise be upset. Courts long ago ruled

that point source discharges subject to Section 402 include

contaminated runoff from mining processes that flow

through ditches into navigable waters (Sierra Club v. Abston

Construction Co., 620 F.2d 41 (5" Cir. 1980); U.S. v. Earth

Sciences, Inc., 599 F.2d 368 (10 Cir. 1979)) and stormwater

runoff discharged by sewer systems directly into navigable

waters (Montgomery Environmental Coalition v. Costle, 646

F.2d 568, 592 (D.C. Cir. 1980)). Appellate courts have

uniformly ruled that NPDES permit requirements are not

precluded simply because the pollutants first entered water

prior to being conveyed by a discrete conveyance, such as a

pipe, into a distinct navigable water body.’

Finally, Section 402 enforcement would be seriously

hampered. Whether a point source exists would turn on

facts far removed from the immediate characteristics of the

conveyance and the receiving waters. The distant origins of

the pollutants and intake waters would require discovery.

2. Nor would the resulting environmental impact of

removing all these point source discharges from Section 402

permit requirements be negligible. It is well established

* See, e.g., Catskill Mountains Chapter of Trout Unlimited, Inc. v.

City of New York, 273 F.3d 481, 491 (2d Cir. 2001); Dubois v. U.S.

Dept. of Agric., 102 F.3d 1273, 1299 (1st Cir. 1996); Comm. to Save

Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 308-09 (9th

Cir. 1993); Dague v. City of Burlington, 935 F.2d 1343, 1354-5 (2d Cir.

1991), rev'd in part on other grounds, 505 U.S. 557 (1992) .

14

today that these kinds of point sources are the primary

source of water quality degradation in many parts of the

nation. The facts of this case underscore the significance of

such point source discharges to water quality. Petitioner's

three pipes are discharging massive amounts of phosphorous

into a pristine body of water within the Everglades. As

described by the Solicitor General in his brief filed in this

case at the jurisdictional stage (Juris. Br. 3, citing Pet. App.

16a-17a), “[p]hosphorus levels are a defining element of the

Everglades. In its natural state, the Everglades system * * *

contains only limited amounts of phosphorus ** *. Adding

phosphorus above natural levels causes an imbalance in the

native flora and fauna and results in harmful growth.”

D. The Solicitor General’s Alternative Interpretation

Of the Clean Water Act Is Equally Flawed

The Solicitor General correctly rejects (Merits Br. 13)

petitioner’s core argument “that pollutants can be added

‘from’ a point source only if the point source itself generates

or is the originating source of the pollutants.” Consistent

with our view, the Solicitor General stresses (id. at 22 n.7)

that petitioner’s legal theory would be “inconsistent with the

Clean Water Act’s manifest aim to impose permitting

requirements on facilities, such as publicly owned treatment

works and municipal storm sewer systems, that do not

themselves generate the pollutants in the water they treat,

but do introduce those pollutants into the navigable waters.”

In nonetheless urging reversal of the judgment below, the

Solicitor General embraces a construction of Section 402 that

is no more tethered than is petitioner’s to the statute’s plain

meaning and EPA’s settled administrative implementation.

He argues (Merits Br. 12) that Section 402 does not apply to

facilities that “do no more than convey or connect navigable

waters.” Because “the S-9 pumping station transports

‘waters of the United States’ that already contain pollutants

from one location to another; it does not add pollutants to

‘the waters of the United States.’” Id. at 13. It “merely

15

transports navigable waters from one location to another.” Id.

Although different from petitioner’s argument, the

Solicitor General’s proposed construction would seriously

undermine the Clean Water Act's ability to achieve its

essential water protection goals. Adoption of his argument

would not incidentally reduce the scope of Section 301's ban

on point source discharges and the Section 402 permit

program. The meaning of “navigable waters” in the Clean

Water Act goes far beyond traditional navigable waters to

extend at the very least to wetlands and nonnavigable

tributaries, including ditches and channels, that can be far

removed from traditional navigable waters. See U.S. v.

Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); U.S. v.

Deaton, 332 F.3d 698 (4" Cir. 2003); 33 C.F.R. § 328.3. Under

the Solicitor General's reading, all discharges between such

waters would be exempted from Sections 301 and 402.

The Solicitor General's most obvious legal error lies in his

repetition of petitioner’s own: the erroneous assumption that

whether a point source discharge exists turns on the origins

of the input into the point source rather than exclusively on

the nature of the point source’s output. As shown above (p.

6-7, supra), the statutory definition of “discharge of a

pollutant” clearly focuses exclusively on the latter. There is

absolutely nothing within the plain meaning of Section

502(12)’s definition of “discharge of a pollutant” to suggest

that it is legally relevant whether the waters in which those

pollutants are being conveyed were previously “navigable.”

The Solicitor General tries mightily to suggest otherwise,

but only by way of rhetorical subterfuge that is unavailing.

First, he tries to recharacterize what is indisputably a point

source that is actively “conveying” high concentrations of

pollutants into a navigable water body into a mere passive

“connect[ion]” between two bodies of navigable waters.

Petitioner's three pipes, however, are no mere passive

connection. They are a “conveyance,” which, unlike

“connection” is a precise statutory term of art. To the

16

Solicitor General, it may be a“ mere” conveyance (Br. 16), but

for the drafters of the Water Act, the act of “conveyance” is

what makes petitioner’s pipes a point source discharge.

Second, the Solicitor General repeatedly refers (Br. 13) to

petitioner’s pipes as conveying “navigable waters” or, using

the statutory definition of that term of art, “waters of the

United States.” See 33 U.S.C. § 1362(7). It is entirely

misleading, however, to say that petitioner's pipes are

conveying “navigable waters” because that characterization

presumes the legal relevance of the fact that the waters

contained in the pipe were once present in a navigable water

body. The pipes do not convey “navigable waters.” What

they convey is “water.” And, just as with any other point

source, when the water being conveyed contains pollutants

that are being directly added to a navigable water body in

which the pollutants did not previously exist, such a

conveyance is a point source discharge.

To be sure, it can be relevant whether the receiving waters

are the same water body from which the point source

originally withdrew water. But that is not because the

navigability of those originating waters is relevant, but only

because a discharge back into the same water body would

raise a question whether an “addition” of pollutants was in

fact occurring. If the discharge was doing no more than

simply reintroducing pollutants that had previously been in

the receiving waters, it might well be that an “addition” was

not occurring. |

Even if, however, there were any statutory ambiguity

(which there is not), the Solicitor General’s views would not

be entitled to heightened judicial deference under Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984). EPA is the only federal agency possibly entitled

to Chevron deference in the construction of the Water Act

terms at issue here and, in an authoritative interpretation, the

EPA General Counsel has specifically and unambiguously

rejected the views presented by the Solicitor General.

17

Prior to Congress’s decision in 1977 to exclude irrigation

return flows from the scope of point source regulation, EPA

was faced with the question whether such flows amounted

to a point source. The EPA General Counsel answered that

question in a formal decision issued on June 27, 1975, after

providing opposing parties with an opportunity to brief the

legal issue. See In Re Riverside Irrigation District, Ltd and 17

Others, Decision of the General Counsel No. 21 (June 27,

1975), reprinted in U.S. EPA General Counsel Opinions (Envt'1

Law Pub. Serv. 1979). Notsurprisingly, the General Counsel

concluded that irrigation return flows clearly amounted to

point sources under the statute’s plain meaning, specifically

rejecting each legal argument raised by petitioner here.’

But what is most striking about the EPA General

Counsel's 1975 formal ruling is that he specifically rejects the

very same construction of the Clean Water Act that the

Solicitor General sets forth in his amicus brief in this case.

One of the arguments raised in the 1975 proceeding by those

claiming that the Section 402 permit requirement did not

apply to irrigation return flows into navigable waters was

that the irrigation ditch could itself be considered a navigable

water and therefore it could not be deemed to be adding

pollutants even when discharging to another navigable

water. That is of course precisely what the Solicitor General

is arguing before this Court.

” The General Counsel found that “irrigation activity” resulting in

pollutants being discharged into navigable waters from a discrete

conveyance is subject to Section 402 and he rejected the argument,

repeated here, that contaminants once in water are no longer

“pollutants,” but instead “ pollution.” In Re Riverside Irrigation District,

supra. Of course, Congress in 1977 subsequently decided expressly to

exempt irrigation return flows from the definition of “ point source”

(see 33 U.S.C. § 1362(14)), but that exclusion does not undermine the

correctness of the General Counsel's interpretation of the statutory

language as it continues to apply to all other types of point sources

after 1977. Quite the opposite. See page 8-9 & n.3, supra.

18

The EPA General Counsel, however, squarely rejected that

contention. He found that “to define the waters here at issue

as navigable waters and use that as a basis for exempting

them from the permit requirement appears to fly directly in

the face of clear legislative intent to the contrary.” In Re

Riverside Irrigation District, supra. The General Counsel

stressed, with emphasis in his original opinion, “what is

prohibited by section 301 is ‘any addition of any pollutant to

navigable waters from any point source.” Id. And, finally,

removing any possible doubt as to his intent that there is

absolutely no merit to the Solicitor General's position in this

case, the EPA General Counsel closed as follows:

It is therefore my opinion that, even should

the finder of fact determine that any given

irrigation ditch is a navigable water, it would

still be permittable as a point source where it

discharges into another navigable water body,

provided that the other point source criteria

are also present.

Id. (emphasis in original and emphasis added).

Perhaps the stark disparity between the General Counsel's

longstanding views and those expressed by the Solicitor

General in this case is why the names of no EPA attorneys

appear on the Solicitor General’s brief expressing the views

of the “United States” on the meaning of 2 statute

administered by EPA. But whatever the reasons for that

striking absence, only the views of the EPA General Counsel

in a formal decision, rather than those expressed in a

Solicitor General brief, could be entitled to Chevron deference.

The EPA General Counsel’s 1975 decision was, moreover,

the product of defined administrative agency procedures

that allowed important legal issues to be certified to the

General Counsel for careful consideration and resolution. In

contrast to a brief filed in the course of litigation, such as that

submitted by the Solicitor General in this case, the General

Counsel’s ruling is precisely the kind of exercise of

19

legislatively delegated lawmaking authority (see 33 U.S.C. §

1342(a)(1)) that has the “force of law” for which Chevron

deference applies in the event of statutory ambiguity. United

States v. Mead Corp., 533 U.S. 218, 231, 234 (2001).*

Il. Petitioner's Reliance On “Principles of Statutory

Interpretation” To Defeat The Clean Water Act’s Plain

Meaning Is Misplaced

Although petitioner purports to acknowledge (Br. 26) that

“[t}he starting point for interpretation is the language of the

statute itself,” it is well past the mid-point of its brief before

petitioner even attempts to discuss the relevant language.

Then, spending little more than four pages of its 49-page

submission on that language, petitioner ultimately seeks

refuge not in its plain meaning, but in a series of so-called

“ordinary principles of statutory interpretation” (Br. 34).

Petitioner claims (1) federalism concerns demand a “clear

statement” to support “stripping the States of their

traditional powers”; (2) the “rule of lenity” requires a

narrow construction to avoid unfair criminal prosecutions;

and (3) plain meaning should be ignored when it would

“lead to absurd and disastrous results.”

Petitioner’s argument fails for two fundamental reasons.

First, none of these “principles of statutory interpretation”

can overcome the overriding principle that the judicial

inquiry ends when the meaning of a statute is plain. And,

second, none of the varied policy concerns petitioner raises

in support of the application of these purported “ principles”

would in fact be implicated by subjecting petitioner's point

sources to Section 402 permitting requirements.

A. The Plain Meaning Of A Statute Is Controlling

Petitioner commits a basic error in positing that this Court

® Indeed, it is the position of the EPA and the Solicitor General that,

under this Court's precedent, Chevron deference to EPA is warranted

in just these kinds of permit adjudications. See Brief for EPA, Alaska

v. EPA, No. 02-658, p. 41.

20

should turn to petitioner’s proposed “ principles of statutory

interpretation” and on that basis rule that Section 402 does

not apply to its conveyance of polluted effluent into

navigable waters. None of those principles applies where, as

in this case, the statute possesses a plain meaning as applied

to the factual circumstances of the case. f

Accordingly, in Salinas v. United States, 522 U.S. 52 (1997),

this Court explained that the “clear statement” rule, under

which Congress “will not be deemed to have significantly

changed the federal-state balance” absent such a statement,

has no continuing force when the statute is unambiguous.

“Statutes should be construed to avoid constitutional

questions, but this interpretative canon is nota license for the

judiciary to rewrite language enacted by the legislature.” Id.

at 59. Petitioner’s reliance on the rule of lenity is equally

misguided. “[T]he rule of lenity applies only when an

ambiguity is present; ‘it is not used to beget one * * *. The

rule comes into operation at the end of the process of

construing what Congress has expressed, not at the

beginning as an overriding consideration of being lenient to

wrongdoers.’” National Organization for Women, Inc. v.

Scheidler, 510 U.S. 249, 262 (1994), quoting, U.S. v. Turkette,

452 U.S. 576, 587-88 n.10 (1981).

Moreover, “[b]road general language is not necessarily

ambiguous when congressional objectives require broad

terms.” Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980).

“‘[T]he fact that a statute can be applied in situations not

expressly anticipated by Congress does not demonstrate

ambiguity. It demonstrates breadth.”” PGA Tour, Inc. v.

Martin, 532 U.S. 661, 689 (2001), quoting Pennsylvania Dept.

of Corrections v. Yesky, 524 U.S. 206, 212 (1998).

The Clean Water Act's breadth is no mei 2 happenstance.

As described by this Court, the Clean Water Act“ constituted

a comprehensive legislative attempt ‘to restore and maintain

the chemical, physical, and biological integrity of the

Nation's waters.’” U.S. v. Riverside Bayview Homes, 474 U.S.

21

121, 132 (1985). “This objective incorporated a broad,

systemic view of the goal of maintaining and improving

water quality * * * Protection of aquatic ecosystems,

Congress recognized, demanded broad federal authority to

control pollution, for ‘[water] moves in hydrologic cycles and

it is essential that discharge of pollutants be controlled at the

source.” Id. at 132-33, quoting S. Rep. No. 92-414, 92™ Cong,,

2d Sess. 77 (1972). _Petitioner’s suggested exception,

therefore, would directly undermine congressional intent by

eroding the comprehensiveness of the single most effective

aspect of the statute: the Section 402 permit program.

B. Application of the Clean Water Act According To Its

Plain Terms Neither Raises Serious Federalism

Concerns Nor Otherwise Leads To Any Absurd Or

Disastrous Consequences

Petitioner and their supporting amici are also wrong in

suggesting that this Court should ignore the Clean Water

Act’s plain meaning because none of the various policy

concerns they raise is in fact implicated by the decision

below. Affirmance of the lower court's judgment will not

transgress state sovereignty and it will not impose massive

burdens, if any, on water allocation systems.

1. The Clean Water Act, Including Section 402,

Directly Incorporates Rather Than Transgresses

State Sovereign Prerogatives

Petitioner's heavy emphasis on principles of federalism at

the expense of the relevant statutory language starts from the

false premise that the Clean Water Act is administered

exclusively by the federal government to the persistent

subjugation of the States. As this Court has previously

explained, however, the Clean Water Act establishes a

“regulatory ‘partnership’ between the federal government

and the States. See International Paper Co. v. Ouellette, 479

U.S. 481, 490 (1987). In myriad ways, the Act recognizes the

important role that States should and do play in water

pollution control.

22

Indeed, the major role played by the States extends to

virtually all aspects of the Section 402 permit program,

especially as that program relates to the kind of point source

discharges present in this case. First, as described by this

Court in International Paper Co. v. Ouellette, 479 U.S. at 489,

“[t]he Act provives that the Federal Government may

delegate to a Sts*x the authority to administer the NPDES

program with respect to point sources located within the

State, if the EPA Administrator determines that the proposed

state program complies with the requirements set forth at 33

U.S.C. § 1342(b).” Currently, 47 out of the 50 States are

doing just that: they are the primary permitting agencies

pursuant to Section 402(b).’ Because Florida is just such a

state, were this Court to affirm the judgment below, it would

not be EPA that would be primarily responsible for deciding

the content of petitioner’s Section 402 permit. It would be a

fellow Florida state agency. See note 11, infra.

Nor are State permitting agencies mere instrumentalities

of the federal government. They exercise considerable

independent lawmaking authority. The kinds of point

source discharges at issue in this case are, moreover, not

within the narrower category of industrial point sources for

which Congress asked the Administrator to promulgate

nationally uniform technologically-based effluent limitations.

See 33 U.S.C. §§ 1311(b), 1314(b); E.. DuPont de Nemours &

Co. v. Train, 430 U.S. 112 (1977); EPA v. National Crushed

Stone Ass’n, 449 U.S. 64 (1980). Accordingly, for a source like

petitioner's, it would be the responsibility of the State

permitting agency to use its “best professional judgment” to

craft appropriate permit requirements. See 33 U.S.C. §

1342(a); 40 C.F.R. § 122.44(a).

The other statutory basis for effluent limitations within a

* See National Pollutant Discharge Elimination System, Website of

US. EPA, http:/ /cfpub.epa.gov/npdes/statestats.cfm (accessed

October 27, 2003).

23

Section 402 permit is even more within the discretionary

authority of the States. The effluent limitations imposed by

Section 402 permits must also guard against violation of State

water quality standards. See 33 U.S.C. §§ 1311(b)(1)(C),

1313(a) & (d). But, as the Clean Water Act makes clear, it is

State water quality standards that govern this federal

requirement. The States possess the primary responsibility

for determining state water quality standards and, where the

State agency is the permitting authority, to determine how to

allocate effluent between several sources to ensure that state

standards are met. See 33 U.S.C. § 1313(a)-(d); 33 U.S.C. §

1313(c); Public Utility Dist. No. 1 v. Washington Dept. of

Ecology, 511 U.S. 700 (1994). Unlike for the Clean Air Act, 42

U.S.C. § 7409, there are no generally applicable nationally

uniform ambient standards applicable to all waters.

2. Subjecting Petitioner's Pumping Station to Section

402 Would Not Lead To Massive Administrative

Burdens On State Authorities

While studiously avoiding its origins within this Court's

precedent, petitioner and its amici ultimately turn to the last

refuge of those seeking to persuade the Court to ignore the

clear statutory language in favor of a construction that

petitioner contends would lead toa more sensible policy: the

“absurd result” canon most famously set forth in Church of

Holy Trinity v. United States, 143 U.S. 457 (1892). See The

Honorable Antonin Scalia, A Matter of Interpretation, 18

(1997). Petitioner, joined by its amici, accordingly unleash

their own veritable floodgates of horrible results,

prophesizing an administrative cataclysm or bureaucratic

doomsday should the Court affirm the judgment below.

It should be sufficient, of course, simply to restate the

obvious: the plain meaning of the statute must prevail,

especially where, as with the Clean Water Act, Congress so

carefully defined the relevant terms and otherwise made

plain in a host of provisions throughout the Act its rejection

of petitioner’s preferred policies. But, it is important

24

nonetheless to make clear that petitioner's exaggerated

rhetoric is only that: exaggerated rhetoric.

At the outset, the vast majority of water allocation

management consists simply of diverting water away from a4

body of water. Although such withdrawals of water clearly

have water quality impacts, there is no question that

withdrawals do not constitute “discharges” and they are

accordingly not subject to Section 402 notwithstanding those

impacts. So too, Congress has already decided specifically to

exempt from Section 402 permitting requirements the single

largest source of pollution from water allocation activities

that would otherwise satisfy the statute’s definition of

“discharge,” which is irrigation return flows. See 42 U.S.C.

§§ 1342(1)(1), 1362(14).

Nor is there reason to suppose that all water allocation

activities that divert water from one basin to another will be

subjec: to NPDES permit requirements. To the extent that

the waters involved, unlike those here, can be fairly treated

as the same waters, we do not herein dispute that EPA could

fairly conclude, as it has done for dams, that no “addition”

is occurring within the meaning of Section 502(12)."° For

” At the jurisdictional stage in this case, the Solicitor General

heavily relied (Juris. Br. 11) on the viability of the distinction

historically made by the federal courts of appeals between “two

situations” : (1) “when a water control facility, such as adam or pump,

directs the flow of water from one part of a single water system to

another part of the same system,” which “does not result in an

‘addition’ of a ‘pollutant,’ and (2) “when a water control facility

transfers polluted water from one distinct and separate body of water

to another less-polluted body of water,” which does “result[] in an

‘addition’ of pollutants to the more pristine body of water, and an

NPDES permit is therefore required.” Whatever the reasons for the —

Solicitor General's dramatic shift of opinion between the brief filed at

the jurisdictional stage last May and the brief submitted on the merits

just a few weeks later in September, we believe he got it right the first

25

many dams, there may be merely “water that passes

through,” warranting the conclusion that the receiving

waters are the same as the intake waters. See U.S. Merits Br.

24 n.10. But the Solicitor General is simply wrong in

equating (id.) that activity of dams with the operation of the

pumps at issue here. Petitioner’s pipes do not simply allow

water to “pass through.” They take massive amounts of

contaminated water and deliberately discharge them for the

purpose of disposal into a distinct navigable water body to

which they would not otherwise have flowed.

Weare likewise confident that EPA possesses considerable

discretion in interpreting the meaning of “discharge of a

pollutant” as applied to water allocation activities, unlike

those present here, that are truly aimed at allocating water

supplies to satisfy human consumptive needs. Such classic

transbasin diversions invariably involve moving pristine

water to join waters that are not so pristine, not vice versa.

For such activities that are in fact doing no more than

moving water, there may well be ambiguity in terms of the

application of Section 402 and, for that reason, EPA may well

possess some discretion under Chevron to advance a

reasonable construction of the Act that exempts some of

those water allocation activities.

But the theoretical possibility of some ambiguity in the

application of the statute in other factual circumstances lends

absolutely no support to petitioner’s claim that either the

Act's plain meaning exempts petitioner from Section 402 or

there is sufficient ambiguity to support an sweeping

administrative exemption for all “water movement.”

Petitioner is not moving water for human consumptive

purposes. Petitioner is not moving pristine water to a less

pristine area. Nor is petitioner simply moving water within

the same navigable body of water. Petitioner is discharging

massive amounts of water from one area to get rid of it and

is using a distinct water body as nothing more than a

disposal site for its discharges of water and phosphorous.

26

This is nothing less than a classic Section 402 discharge.

Nor are petitioner and their amici correct in their assertion

that subjecting similar discharges to Section 402 will impose

massive administrative burdens on state and local water

management activities. As described by the amicus brief

filed by the Solicitor General at the Court's invitation at the

jurisdictional stage (Juris. Br. 11), every court of appeals to

address the status of such water transfers had previously

reached precisely the same result as did the Eleventh Circuit

below. The upshot of those longstanding judicial rulings has

not been the widespread havoc now predicted by petitioner.

The reasons are several. As explained by the Solicitor

General in his initial filing in this case, the considerable

flexibility offered within the Clean Water Act would likely

render “relatively modest” any possible resulting

administrative burden even as applied to this case:

For example, the permitting authority in this

case--the Florida Department of Environmental

Protection--may be able to issue a general

permit that considerably streamlines the

permitting process. See 40 C.F.R. 122.28, 123.25.

Furthermore, an NPDES permit can provide

considerable flexibility in any schedules for

compliance. See 40 C.F.R. 122.47. And it

appears at least questionable that the NPDES

permit would subject petitioner to any

significant environmental obligations beyond

those that petitioner already faces under other

existing laws.

US. Juris. Br. 17 (jurisdictional stage).

Hence, even under the most far reaching interpretation of

“discharge of a pollutant,” State permitting agencies would

not have to issue hundreds of thousands of individual

permits for water allocation activities for the same reason

that they already do not have to do so for many other

comparable activities regulated by Section 402. As long ago

ee ae -

27

described by the D.C. Circuit in NRDC v. Costle, 568 F.2d

1369 (D.C. Cir. 1977), and as since routinely performed by

both EPA and State permitting agencies pursuant to Section

402, the agency can instead issue, within reasonable bounds,

general or areawide permits that authorize an entire category

of activities. See, e.g., Final National Pollutant Discharge

Elimination System General Permit for Storm Water Discharges

from Construction Activities, 68 Fed. Reg. 39087 (2003). -

For similar reasons, petitioner's claim (Br. 40-42) that

application of Section 402 to its pumping station will disrupt

otherwise comprehensive state water management programs

applicable to the Florida Everglades is a complete red

herring. If such laws do in fact exist and adequately address

the issue, then as the Solicitor General explained at the

jurisdictional stage, Section 402 will not impose any

additional significant burdens and will instead simply easily

integrate itself into state programs as necessary to ensure

protection of water quality based on state water quality

standards. Indeed, as described by respondents in their brief

(see Resp. Miccosukee Tribe Br. IIIA) and as revealed by

publicly available documents,” it appears that petitioner is

already subject to and complies with Clean Water ActSection

402 and 404 permits in many of its water management

activities, including some closely related to those at issue in

this case. There is, accordingly, no stark divide between

Everglades management and the Clean Water Act.

But, of course, because petitioner is advancing a sweeping

" Seee.g., Website of the South Florida Water Managment District,

http:/ /www.sfwmd.gov/org/wrp/wrp_evg/ projects/404permit

(Nov. 7, 2003) (describing Section 404 permit); Website of the Florida

Dept. of Envt'l Protection, http:/ / www.dep.state.fl.us/legal/legal

documents/ finalorders /1999/ DEP99-0385.doc (Nov. 7, 2003) (Florida

DEP final emergency order describing Section 402 permits applicable

to Everglades nutrient removal project undertaken pursuant to

stormwater treatment and Everglades Construction Project).

28

interpretation of the statute that would apply nationwide in

all circumstances, the precise adequacy of Florida’s other

programs is wholly irrelevant. For, if petitioner is correct

that Section 402 does not apply to its kind of water discharge

activity, that would be equally true in jurisdictions that have

absolutely no other programs at all apart from their

administration of Section 402.”

In sum, the Clean Water Act does not impose some

sweeping exemption for all pollutants conveyed by the

movement of water no matter what the nature and impact of

that movement. The Act instead provides sufficient clarity

within its terms to identify discharges that, like petitioner's,

are no different in their character from a classic industrial

discharge, while maintaining sufficient flexibility within its

requirements to guard against imposing unduly burdensome

administrative requirements on state water management

agencies for all their authorized activities.

III. Petitioner’s Sole Recourse Is To Persuade Congress

Of The Merits Of Their Policy Arguments

Given the plain meaning of the Clean Water Act, as

bolstered by its structure, longstanding administrative

" Significantly, the experience of other States has demonstrated the

potentially substantial value of subjecting some water transfers to

Section 402. For instance, in Del-Aware Unlimited, Inc. v. Pennsylvania,

1984 Envtl’ Hearing Bd. 178 (1984), the Pennsylvania Environmental

Hearing Board considered whether a Section 402 permit was required

for a state water project that would convey substantial amounts of

water from the Delaware River to a distinct navigable body of water

that the Delaware River would not otherwise reach. The Board ruled

that Section 402 should apply because otherwise the State Department

of Environmental Resources “would have no right to establish

pollutant concentration limits for discharges of the Delaware into the

Neshaminy or Perkiomen, no matter how polluted the Delaware or

how pristine the receiving streams; we do not believe this outcome

would be consistent with Congress’ intent when it passed the Federal

Clean Water Act.” Id.

29

interpretation, and subsequent congressional amendment,

petitioner’s request for relief can be fairly characterized as an

invitation for judicial amendment of a statute. The Court

should soundly decline the invitation.

It is well established that this Court is “without

competence to entertain these arguments - either to brush

them aside as fantasies generated by fear of the unknown, or

to act on them.” Diamond v. Chakrabarty, 447 U.S. 303, 317

(1980). Resolution of such policy disputes “involves the

balancing of competing values and interests, which in our

democratic system is the business of elected representatives.

Whatever their validity, the contentions now pressed on [the

Court] should be addressed to the political branches of the

Government, the Congress and the Executive, and not to the

courts.” Id. “[CJourts ‘are not at liberty to create an

exception where Congress has declined to do so.’” Freytag v.

C.LR., 501 U.S. 868, 874 (1991), quoting Hallstrom v.

Tillamook County, 493 U.S. 20, 27 (1989).

Certainly, based on the identity of the amici filing in

support of petitioner, there is no reason to suppose that those

supporting petitioner's preferred policy will be unable to

have their voices heard by Congress should the Court affirm

the judgment below based on the Clean Water Act's plain

meaning. As previously described, we do not believe that

there is any plausible basis for believing that affirmance will

have any major adverse impact on water management

nationwide, and will instead simply bolster water pollution

control in those instances where regulatory gaps apparently

persist. Certainly, the fact that no such massive burden has

developed over the years in the face of multiple courts of

appeals reaching the same result as the court below in this

case, is weighty testimony in favor of our view.

Butevenif, contrary to our submission, problems do arise,

these same entities can make their case heard by their elected

representatives. Congress has certainly not exhibited any

past reluctance to narrow the Clean Water Act when

30

persuaded that it would be sound public policy. Congress,

accordingly, has exempted from Section 402 irrigation return

flows and stormwater runoff from oil, gas, and mining

activities. See 33 U.S.C. §§ 1342(1), 1362(14). The legislators

have similarly fine-tuned the application of Section 402 to

municipal and industrial stormwater discharges. See id. §

1342(p). Indeed, the Act is replete with statutory revisions

made by Congress based on the lessons learned from the

Act’s actual implementation, rather than on a litigant’s

exaggerated rhetoric and hypothetical parades of horribles.”*

No constitutional shortcut exists for achieving legislative

change. Individual citizens and the politically powerless

must follow the constitutional pathways for securing law

reform, no matter how high the hurdles. These same rules

must equally apply to captains of industry and to powerful

state and local executive branch governmental entities.

CONCLUSION

For the forgoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted.

RICHARD J. LAZARUS

COUNSEL OF RECORD

GEORGETOWN UNIVERSITY LAW CENTER

600 NEW JERSEY AVENUE, N.W.

WASHINGTON, D.C. 20001

(202) 662-9129

Attorney for Amici

NOVEMBER 2003

® See, e.g.,33 U.S.C. §§ 1311(g) (modification provisions for certain

nonconventional pollutants), 1311(h) (modification provisions for

secondary treatment), 1311(i) (municipal time extensions).

APPENDIX

Description of Amici Curiae

Carol M. Browner was appointed by President William

Jefferson Clinton, Administrator of the United States

Environmental Protection Agency and unanimously

confirmed by the United States Senate in January, 1993. She

served in the position for eight years, longer than other EPA

Administrator. Ms. Browner also worked closely with the

White House to secure passage of the first ever

comprehensive law to protect the Everglades. Prior to her

appointment to EPA, Ms. Browner served as Secretary of the

Environment for the State of Florida.

Jonathan Z. Cannon served as General Counsel of the

United States Environmental Protection Agency from 1995 to

1998 and as Assistant Administrator for Administration and

Resource Management for the Agency from 1993 to 1995.

Charles Fox served as Assistant Administrator for Water of

the United States Environmental Protection Agency from

July 1998 through January 2001. He also served as Secretary

of the Maryland Department of Natural Resources from

August 2001 through January 2003.

Jean C. Nelson served as General Counsel of the United

States Environmental Protection Agency from 1993 to 1995.

Robert W. Perciaepe served as Assistant Administrator for

Water of the United States Environmental Protection Agency

from 1993 to 1998. He served as Assistant Administrator for

Air and Radiation from 1998 to 2001.

Al