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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A37

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 957

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0612%3A37. Public record. Not legal advice.