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

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No. 02-626

In The

Supreme Court of the Gnited States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

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 FLORIDA

WILDLIFE FEDERATION, ENVIRONMENTAL

CONFEDERATION OF SOUTHWEST FLORIDA,

AND AUDUBON SOCIETY OF THE EVERGLADES

IN SUPPORT OF RESPONDENTS

DaviID G. GUEST

Counsel of Record

MONICA K. REIMER

111 South Martin Luther

King Jr. Blvd.

Tallahassee, Florida 32301

(850) 681-0031

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a pump’s discharge of water containing

pollutants, where the pollutants do not originate from the

pump itself, is exempt from point source Clean Water Act

permitting when the polluted water is pumped from a

drainage canal that is a jurisdictional water of the United

States into a different water of the United States into

which the pollutants would not be discharged but for the

action of the pump.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ..........cccsssssessesseecsesseeseeen i

TABLE OF AUTHORITIES .......-.sesscssecssesssesseeesesseee iv

INTERESTS OF AMICI CURIAE ..0...e.sessesseessesse0see 1

SUMMARY OF THE ARGUMENT ...........cscsesseeseeeees 4

FACTUAL BACKGROUND .......ccsessessessessvessessuesseeses 5

A. THE S-9 PUMPING STATION ......+..-sssssessssseeee 5

B. THE RELATIONSHIP BETWEEN THE 8-9

PUMPING STATION AND THE EVERGLADES.. 7

C. POLLUTANTS IN THE S-9 DISCHARGE TO

THE EVERGLADES. ...............ccsssssssssssereeeseeeeses 9

D. THE COMPREHENSIVE EVERGLADES RES-

TORATION PROJECT.............ccccsseeccseeseseeeeeeeenes 12

E. THE EVERGLADES FOREVER ACT PERMIT.. 13

SEEEEEEEIETE sesvcctscncnsccesecsesoveresescceescococsocecsessoscooosees 16

I. THE DISTRICT'S OPERATION OF THE 8-9

PUMPING STATION REQUIRES AN NPDES

PERMIT BECAUSE IT ADDS GROUND WA-

TER POLLUTANTS TO THE WATERS IT DIS-

- CHARGES INTO THE EVERGLADEG............. 16

Il. THE SOLICITOR GENERAL'S “UNITARY

WATERS” THEORY CONTRADICTS THE EX-

PRESS TERMS OF SECTION 402 WHICH RE-

QUIRES PERMITS FOR ANY DISCHARGE

WHICH ADDS POLLUTANTS ...........cccccceeeeees 19

A. The New Exemption from Section 402 of

the Clean Water Act Sought by the District

and the Solicitor General Cannot Be Rec-

onciled With the Express Terms of the Act.. 19

iil

TABLE OF CONTENTS — Continued

Page

B. There Is No Exemption In the Clean Wa-

ter Act Based on the Construction History

of the Drainage Source.................ccccceeeeeeeeees 21

Ill. THE DISTRICT IS NOT ENTITLED TO

AVOID THE SECTION 402 PERMITTING

REQUIREMENT BY CLAIMING THAT DIS-

POSAL OF GROUND WATER SEEPAGE AND

STORM WATER CONSTITUES AN ALLOCA-

TION WITHIN THE MEANING OF SECTION

TABLE OF AUTHORITIES

Page

CASES

FEDERAL

Kaiser Aetna v. United States, 444 U.S. 164 (1979).......... 22

Miccosukee Tribe of Indians v. South Florida Water

Management District, 1999 U.S. District LEXIS

23306 (S.D. Fla. Sept. 30, 1999) .............cccssssccccesecssseeeees 6

Miccosukee Tribe of Indians v. South Florida Water

Management District, 280 F.2d 1364 (11th Cir.

Northern Plains Resource Council-v. Fidelity

Exploration and Development Co., 325 F.3d 1155

ee SIE cnerrenenenscereennveiennenennnnseninninninieaniiain 18

United States v. South Florida Water Management

District, 28 F.3d 1563 (11th Cir. 1994)...0....... ee eeeeeeeeeeeee 13

STATE

Florida Wildlife Federation, et al. v. Florida De-

partment of Environmental Protection, No. 03-

3532RP (Fla. Div. Admin. Hearings filed Sept. 26,

eee cocncansnsenteiumninencmnenanasninbaniinnintsntebionapetanetiniinenaniinianis 2

Florida Wildlife Federation, et al. v. Carol M.

Browner, No. 4: 98CV356-WS (N.D. Fla. 1999).............. 2

STATUTES AND REGULATIONS

Clean Water Act, 33 U.S.C. § 1251(g)...........cccccccecceeeeeeeeees 23

Clean Water Act, 33 U.S.C. § 1313(c)(1)..........ccceccceeeeeeeeees 23

Clean Water Act, 33 U.S.C. § 1313(¢)(2).......cccccccccceeeeeeeeees 23

Clean Water Act, 33 U.S.C. § 1313(d)......................000 11, 20

TABLE OF AUTHORITIES — Continued

Page

Clean Water Act, 33 U.S.C. § 1313(d)(2) ..................... 11, 20

Clean Water Act, 33 U.S.C. § 1B42(p).........cscscseecersrsesreesees 19

Clean Water Act, 33 U.S.C. § 1342(p)(1) ..................0eeeeeeee 19

Clean Water Act, 33 U.S.C. § 1342(p)(2) ..................04. 19, 20

Clean Water Act, 33 U.S.C. § 1342(p)(6) ..............ccseeeeeeeees 20

FEDERAL REGULATIONS

oe eee 22

STATE STATUTES AND LAWS OF FLORIDA

Section 373.451(5), Florida Statutes ....................cccccceeeeees 15

Section 373.4592, Florida Statutes .......................000+ 13, 14

Section 373.4592(2), Florida Statutes .......................:00000+ 14

Section 373.4592(2)(j), Florida Statutes..................cseseeeees 14

Section 373.4592(3), Florida Statutes ...................cccceeeeees 14

Section 373.4592(9)(k), Florida Statutes.......................... 13

Chapter 2003-12, Laws of Florida..................c0cccccccsseeeeeeees 14

OTHER AUTHORITIES

BuRNS & MCDONNELL, EVERGLADES PROTECTION

AREA TRIBUTARY BASINS CONCEPTUAL LONG-TERM

PLAN FOR ACHIEVING WATER QUALITY GOALS, FINAL

REPORT (Mar. 17, 2003), available at http://

exchange.law.miami.edu/everglades/restore/Final

Conceptual/finalconceptual_031703%20(3.43mb).pdf......... 15

TABLE OF AUTHORITIES -— Continued

CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL

PROJECT COMPREHENSIVE REVIEW STUDY, FINAL

INTEGRATED FEASIBILITY REPORT AND PRO-

GRAMATIC ENVIRONMENTAL IMPACT STATEMENT,

SUMMARY, vii-x (Apr. 1999), available at http:

//www.evergladesplan.org/docs/comp_plan_apr99/

DEFINITION OF NGVD, at www.ems-i.com/wms

help/General/Edit_Menu/Coordinate_Conversions/

NGVD_system.htm (last visited Nov. 10, 2003) ......

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTEC-

TION, 303(d) LISTED WATER SEGMENTS IN BROWARD

CouNTY, available at http://www.dep.state.fl.us/

water/tmdl/docs/maps/broward.pdf (last visited

Nov. 10, 2003) [Appendix 9, 19a] ...................:eseeeeeeees

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTEC-

TION, FINAL PERMIT, available at ftp://everglades.

dep.state.fl.us/permitting/Non-ECP/Non-ECP%20

Permit.pdf (last visited Nov. 7, 2003)....................0++.

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTEC-

TION, FINAL PERMIT (EXHIBIT A) at II-33, available

at ftp://everglades.dep.state.fl.us/permitting/Non-

ECP/Non-ECP%20Permit%20Exhibit%20A.pdf

| Se

FLORIDA OCEANOGRAPHIC SOCIETY, COMMON WATER

QUALITY TESTS AND WHY THEY ARE IMPORTANT,

DISSOLVED OXYGEN, available at www.florida

oceanographic.org/parameters.htm (last visited

ET ER Sie ecensscnescnsssmsasesrenssemmemnmnsesnsserenennenes

Page

Vii

TABLE OF AUTHORITIES — Continued |

HERBERT J. FREIBERGER, U.S. GEOLOGICAL SURVEY,

EFFECTS OF BACKPUMPING FROM SOUTH NEW

RIVER CANAL AT PUMP STATION S-9 ON QUALITY

Or WATER IN WATER CONSERVATION AREA 3, BRO-

WARD COUNTY, FLORIDA 12, Open-File Rep. No.

Page

73026 (1973) [Appendix 7, 14a-17a] ..........e..s0e00-- 8, 10, 17

Map OF C-11 WEST BASIN AND CANAL IN CENTRAL

BROWARD COUNTY, at http://www.sfwmd.gov/

org/exo/broward/cllbmp/images/jpgs/c-11lwest.jpg

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

ECOLOGICAL IMPACTS OF DROUGHT IN THE WATER

CONSERVATION AREAS (Apr. 13, 2001), available

at http://www.sfwmd.gov/org/wrp/wrp_evg/reports/

drought_0401/generalinfo.pdf [Appendix 4, 11a)......

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

EVERGLADES INTERIM REPORT 2-10 (Jan. 1, 1999),

available at http://www.sfwmd.gov/org/ema/ever

glades/interimrpt_98/chpt2.pdf [Appendix 3, 9a-

BDNF cccsscsccccscsecssessesseseceensevcecesssessesssssesedboosseseseeee 7, 8, 17, 18

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

EVERGLADES REGULATION: C-11 WEST, at http:/

www.sfwmd.gov/org/reg/esp/cllw.html (last visited

FOO, F, Beep ceccccecssccesescevscncesecssesssssncosssossnsooneeeses 12, 13, 14

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

PUMPING STATIONS (1973) [Appendix 1, la-5a)........

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

TuRF & LANDSCAPE BEST MANAGEMENT PRAC-

TICES FOR THE C-11 WEST CANAL BASIN, at http://

www.sfwmd.gov/org/exo/broward/cllbmp/execsum.

html (last visted Nov. 10, 2003) [Appendix 6, 13a]..

Viii

TABLE OF AUTHORITIES — Continued

U.S. ARMY CORPS OF ENGINEERS, INTERIM WATER

CONTROL PLAN FOR PUMPING STATION 9A AND

STRUCTURE 381, available at http://www.saj.

usace.army.mil/projects/dwep_cll.htm, § 7.02, 94

(May 2002) [Appendix 2, Ga-8a]................ccccceeeeeeeeees

U.S. EPA, REGION 4, DECISION DOCUMENT RE-

GARDING DEPARTMENT OF ENVIRONMENTAL PRO-

TECTION’S § 303(d) LIST AMENDMENT, available

at http://www.epa.gov/region4/water/tmd)l/florida/

florida303d_update.pdf (last visited Nov. 10, 2003)

Page

ee 11, 12, 21

U.S. GEOLOGICAL SURVEY, CALENDAR YEAR STREAM-

FLOW STATISTICS FOR FLORIDA, at http://nwis.

waterdata.usgs.gov/fl/nwis/annual/?site_no=02312000

&agency_cd=USGS (Withlacoochee River); http://

nwis.waterdata.usgs.gov/fl/nwis/annual/?site_no=

02326900&agency_cd=USGS (St. Marks River); http://

nwis.waterdata.usgs.gov/fl/nwis/annual/?site_no=

02370000&agency_cd=USGS (Blackwater River);

http//nwis.waterdata.usgs.gov/fl/nwis/annual/?site_no

=02235000&agency_cd=USGS (Wekiva River); http://

nwis.waterdata.usgs.gov/fl/nwis/annual/?site_no=

02232400&agency_cd=USGS (St. Johns River);

http://nwis. waterdata.usgs.gov/fl/nwis/annual/?site

_no=02359000&agency_cd=USGS (Chipola River);

and http//nwis.waterdata.usgs.gov/fl/nwis/annual/?

site_no=02231000&agency_cd=USGS (St. Marys

River) (last visited Nov. 7, 2003) ...............ccccccesecseeeeeee

INTERESTS OF AMICI CURIAE

The Florida Wildlife Federation, Environmental

Confederation of Southwest Florida, and Audubon Society

of the Everglades, as amici curiae, respectfully submit this

brief in support of Respondents Miccosukee Tribe of

Indians and Friends of the Everglades.’

The Amici are conservation organizations established

for the purpose of protecting Florida’s magnificent natural

resources, including the Everglades National Park, a

World Heritage site. The Clean Water Act permitting

requirement upheld by the court below will serve to

protect the Everglades and Lake Okeechobee, which are

among the most ecologically important water bodies in the

United States. The Everglades are already seriously

impaired by pollution, and the exemption from Clean

Water Act permitting sought by the petitioner South

Florida Water Management District would further dimin-

ish protections for this unique ecosystem.

The Florida Wildlife Federation (“FWF”) is a state-

wide non-profit conservation and education organization

with over 12,500 members. FWF’s mission includes the

preservation, management, and improvement of Florida’s

water resources and its fish and wildlife habitat. Many of

FWF’s members reside within Lake Okeechobee’s water-

shed and use the waters in the Lake and of the Everglades

' The parties have consented to the filing of this brief. The Amici

have filed letters of consent with the Clerk. Pursuant to Rule 37.6,

Amici state that no counsel for any party in this case authored this

brief in whole or in part, and no person or entity other than Amici or

their representatives has made a monetary contribution to the prepara-

tion and submission of this brief.

for canoeing, air-boating, wildlife observation, photogra-

phy, personal and commercial research, sport fishing, and

waterfowl hunting. In particular, many FWF members

fish, recreate and observe wildlife in the Everglades

around the S-9 pumping station which is the subject of

this appeal. FWF focuses much of its public education and

advocacy efforts on the Everglades and Lake Okeechobee.

FWF recently obtained a Consent Decree that re-

quired the U.S. Environmental Protection Agency (“EPA”)

and, indirectly, the State of Florida, to comply with a 1972

Clean Water Act requirement to inventory and take

corrective action on over 700 Florida water bodies which

are polluted beyond legal standards. Florida Wildlife

Federation, et al. v. Carol M. Browner, No. 4: 98CV356-WS

(N.D. Fla. 1999). Both the federal and state governments

had completely disregarded their responsibilities to take

corrective action for over 25 years. Although a Consent

Decree was entered in 1999, id. (Order of August 9, 1999),

FWF has had to file yet another legal action to force the

State of Florida to reduce polluted discharges down to

levels that will allow the ecological survival of Lake

Okeechobee. Florida Wildlife Federation, et al. v. Florida

Department of Environmental Protection, No. 03-3532RP

(Fla. Div. Admin. Hearings filed Sept. 26, 2003).

FWF has a pending Ciean Water Act case against

Petitioner South Florida Water Management District that

is similar to the instant appeal. In that case, FWF is

seeking to require the District to obtain Clean Water Act

permits for its practice of force-pumping polluted drainage

canal water into Lake Okeechobee. See Florida Wildlife

Federation v. South Florida Water Management District,

now consolidated under case No. 02-80309-CIV (S.D. Fla.

filed July 30, 2002). The canals are at an elevation several

feet lower than the surface of Lake Okeechobee and the

polluted canal water is disposed by pumping it up into the

Lake. Although these drainage canals are waters of the

United States, they have been officially designated by

Florida and EPA as waters that fail to meet their classified

use — fish and wildlife and swimming — because they are

impaired by pollution beyond legal standards. Lake

Okeechobee, which receives the discharge from these

canals, is designated as a drinking water source — the

most highly protected classification of use for water bodies

in Florida. On July 1, 2003, FWF’s case was stayed

pending disposition of the instant appeal.

The Environmental Confederation of Southwest

Florida (“ECOSWF”) is a non-profit organization estab-

lished for the purpose of protecting and preserving Flor-

ida’s surface waters, ground water aquifers, wetlands,

endangered and threatened species and their habitats,

and other natural resources. Many of ECOSWF’s mem-

bers use and enjoy Lake Okeechobee and the Everglades

for recreation, fishing, “:rd watching, photography, and

educational purposes. In addition, ECOSWF has partici-

pated in numerous legal challenges aimed at preserving

Florida’s waters. For example, ECOSWF was a co-plaintiff

with FWF and another conservation organization in a

1998 Clean Water Act enforcement case that resulted in

the 1999 Consent Decree. For 25 years before that suit,

the EPA and the State of Florida had utterly failed to

comply with important obligations under the Clean Water

Act.

Audubon Society of the Everglades (“ASE”) is a non-

profit conservation and education organization established

in 1966 to promote the conservation of wildlife and the

natural environment as well as an understanding of and

interest in wildlife and the environment that supports it.

ASE and its members conduct field trips and summer

conservation camps to give schoolchildren the opportunity

to experience the ecology of Lake Okeechobee and the

Everglades firsthand. Many of ASE’s members also use the

Everglades for bird watching and other recreational

activities. For the last fifteen years, ASE has also been a

participant in the litigation between the U.S. Department

of Interior and Petitioner concerning excessive phosphorus

pollution of the Everglades.

SUMMARY OF THE ARGUMENT

The discharge of water from the S-9 pumping station

is subject to Clean Water Act permitting requirements

because the pumps are withdrawing pollutant-laden storm

water and ground water from the South New River drain-

age canal and then discharging the polluted water into the

Everglades. The operation of the S-9 pumping station

introduces ground water into the drainage canal and then

discharges the ground water into the Everglades. A dis-

charge of ground water containing pollutants through a

point source into a water of the United States requires an

NPDES permit even if the pollutants are not introduced

into the ground water by the discharger.

The “unitary waters” exemption posited by the Solici-

tor General and the District must be rejected as inconsis-

tent with the Clean Water Act because: 1) any discharge of

storm water that contributes to a violation of water

pollution limits requires an NPDES permit regardless of

the origin of the storm water; and 2) the Clean Water Act

contains no express or implied principle that separate

water bodies should be treated as a single water of the

United States simply because they commingled a half

century ago. Adoption of the “unitary waters” theory would

also defeat the purposes underlying the Clean Water Act

requirement that states must designate uses and water

quality specifications for each individual water body.

The sweeping character of the exemption sought by

the District is revealed by the results of its application

under the facts of this case. The S-9 pumping station

would be allowed to continue to discharge canal water that

is, in fact, contributing to a violation of water quality

standards in the Everglades. The District would also be

allowed to force-pump profoundly polluted drainage canal

water up into Lake Okeechobee, a designated drinking

water source.

The District claims that it should be exempt from

Clean Water Act regulation because it is “allocating” water

to the Everglades through the S-9 pumping station. That

pump station does not function to allocate water but

instead is a system that collects, conveys, and disposes of

unwanted run-off and ground water seepage in order to

provide drainage for developed lands.

FACTUAL BACKGROUND

A. THE S-9 PUMPING STATION

The S-9 pumping station is an industrial scale pump-

ing station that conveys immense quantities of water into

the Everglades. Attached as Appendix 1 is a description

and photographs of the pumping station from a publica-

tion by Petitioner South Florida Water Management

District.” The scale of the water flow through South

Florida Water Management District pumps is illustrated

by the photographs on the fourth and fifth pages of Ap-

pendix 1 that graphically depict the size of the propellers

and the diameter of the pipes. (App. 1, 4a-5a). Each of the

three S-9 pumps discharges at the rate of 960 cubic feet

per second (“cfs”) for a total discharge of 2,880 cubic feet

per second. U.S. ARMY CORPS OF ENGINEERS, INTERIM

WATER CONTROL PLAN FOR PUMPING STATION 9A AND

STRUCTURE 381, available at http://www.saj.usace.army.

mil/projects/dwcep_cll.htm, § 7.02, ¥4 (May 2002) (App. 2,

7a) [hereinafter “INTERIM WATER CONTROL PLAN”].’ The

discharge rate of 2,880 cubic feet per second from the S-9

pumping station is considerably larger than the average

flow of the upper Suwannee River and of many other™

important Florida rivers.‘

* SOUTH FLORIDA WATER MANAGEMENT DISTRICT, PUMPING STATIONS

(1973) (App. 1).

* See also, Miccosukee Tribe of Indians v. South Florida Water

Management District, 1999 U.S. District LEXIS 23306, at *4 n.5 (S.D.

Fla. Sept. 30, 1999).

* See e.g., U.S. GEOLOGICAL SURVEY, CALENDAR YEAR STREAMFLOW

STATISTICS FOR FLORIDA, at http://nwis.waterdata.usgs.gov/fl/nwis/annual/

?site_no=02312000&agency_cd=USGS (Withlacoochee River); http://nwis.

waterdata.usgs.gov/fl/nwis/annual/?site_no=02326900&agency_cd=USGS

(St. Marks River); http://nwis.waterdata.usgs.gov/fl/nwis/annual/?

site_no=02370000&agency_cd=USGS (Blackwater River); http://nwis.

waterdata.usgs.gov/fl/nwis/annual/?site_no=02235000&agency_cd=USGS

(Wekiva River); http://nwis.waterdata.usgs.gov/fl/nwis/annual/’site_

no=02232400&agency_cd=USGS (St. Johns River); http://nwis.water-

data.usgs.gov/fl/nwis/annual/?site_no=02359000&agency_cd=USGS

(Chipola River); and http://nwis.waterdata.usgs.gov/fl/nwis/annual/?

site_no=02231000&agency_cd=USGS (St. Marys River) (last visited

Nov. 7, 2003).

B. THE RELATIONSHIP BETWEEN THE S-9

PUMPING STATION AND THE EVERGLADES

The S-9 pumping station removes water from a

portion of the former Everglades that is now a part of the

western suburbs of Fort Lauderdale and discharges that

water into the Everglades. Fifty years ago a levee was

constructed on a portion of the Everglades in western

Broward County. Construction of the levee and the accom-

panying S-9 pumping station allowed drainage of the area

east of the levee, making the land available for agricul-

tural and urban development. SOUTH FLORIDA WATER

MANAGEMENT DISTRICT, EVERGLADES INTERIM REPORT

2-11 (Jan. 1, 1999), available at http://www.sfwmd.gov/org/

ema/everglades/interimrpt_98/chpt2.pdf (App. 3) [hereinaf-

ter “EVERGLADES INTERIM REPORT’); see also Pet’r Br. at 8-

9. The South New River. Canal (the relevant portion is

known as “C-11 West”) runs through this area to the S-9

pumping station. On the west (receiving) side of S-9 are

the Everglades.

The height of water in the Everglades is held at 9.5

feet to 10.5 feet’ above sea level. This is several feet

* SouTH FLORIDA WATER MANAGEMENT DISTRICT, ECOLOGICAL

IMPACTS OF DROUGHT IN THE WATER CONSERVATION AREAS at 2 (Apr. 13,

2001), available at http://www.sfwmd.gov/org/wrp/wrp_evg/reports/

drought_0401/generalinfo.pdf (App. 4, 11a). Specifically, this part of the

Everglades is designated “Water Conservation Area 3” (“WCA-3”).

* Sea Level is now expressed as the National Geodetic Vertical

Datum (“NGVD”) which is a convention for establishing a standardized

elevation for mean sea level. For that reason, all elevations in technical

literature refer to elevations expressed in terms of NGVD. DEFINITION

oF NGVD, at www.ems-i.com/wmshelp/General/Edit_Menu/Coordinate_

Conversions/NGVD_system.htm (last visited Nov. 10, 2003).

higher than the elevation of the ground in the developed

areas east of the levee.’ HERBERT J. FREIBERGER, U.S.

GEOLOGICAL SURVEY, EFFECTS OF BACKPUMPING FROM

SOUTH NEW RIVER CANAL AT PuMP STATION S-9 ON QUAL-

ITY OF WATER IN WATER CONSERVATION AREA 3, BROWARD

COUNTY, FLORIDA 12, Open-File Rep. No. 73026 (1973)

(App. 7, 14a) [hereinafter FREIBERGER REPORT]. The much

higher water level in the Everglades forces ground water

through the ground under the levee because the soil and

rock underlying the Everglades is porous. Ground water

seepage is such a serious problem that a large auxiliary

pump station next to S-9 is under construction and will be

operated for the sole purpose of collecting ground water

seepage in the canal east of the levee and discharging it to

the Everglades (the pump station has been given number

S-9A). See INTERIM WATER CONTROL PLAN at § 7.01 (“[t]he

operation of S-9A is expected to be near continuous to

match the seepage”) (App. 2, 6a); see also Pet’r Br. at 11.

The canal and S-9 pumping station are also essential

to disposing of urban storm water run-off that would

otherwise accumulate in a relatively short time and cause

floods. Br. of Amicus City of Weston at 4-6. Run-off from

the suburban and agricultural lands east of the levee is

collected in the South New River Canal and conveyed from

that canal into the Everglades by the S-9 pumping sta-

tion.’ When the water level in the South New River Canal

” Studies have indicated that soil subsidence east of the levee has

lowered the elevation of the land surface by almost four feet. Ever.

GLADES INTERIM REPORT 2-10, available at http://www.sfwmd.gov/

org/ema/everglades/interimrpt_98/chpt2.pdf (last visited Nov. 7, 2003).

* MaP oF C-11 West BASIN AND CANAL IN CENTRAL BROWARD

CounTY, at http//www.sfwmd.gov/org/exo/broward/cllbmp/images/jpgs/

(Continued on following page)

rises to four feet NGVD, the S-9 pumps are turned on;

they are turned back off when the canal water level falls to

one foot NGVD. Pet’r Br. at 11. The pumps are also rou-

tinely operated in preparation for approaching storms. Br.

of Amicus City of Weston at 6.

C. POLLUTANTS IN THE S-9 DISCHARGE TO

THE EVERGLADES

The area from which the South New River Canal (C-

11 West) collects urban run-off is inhabited by 136,000

people. Pet’r Br. at 12. As explained on the South Florida

Water Management District’s web site, run-off collection

canals capture and convey “urban fertilizers, detergents,

household chemicals, gas, [and] oil. . . .” The same web site

states that “[t]he C-11 West basin has been cited as one of

the top urban polluters of the Everglades.” SOUTH FLORIDA

WATER MANAGEMENT DISTRICT, TURF & LANDSCAPE BEST

MANAGEMENT PRACTICES FOR THE C-11 WEST CANAL BASIN,

at http://www.sfwmd.gov/org/exo/broward/cllbmp/execsum.

html 91, 3 (App. 6, 13a).

It has been well-known for at least thirty years that

the S-9 pump withdraws ground water that is chemically

different from that of the Everglades and discharges this

ground water into the Everglades. A United States Geo-

logical Survey Report dated 1973 — conducted in coopera-

tion with the District — found that ground water is a

c-1lwest.jpg. (App. 5, 12a). The map shows that the storm water run-off

collection system includes the cities of Weston (which has filed an

amicus brief in this case), Sunrise, Davie, Cooper City, and part of

Pembroke Pines. The map states that floodwater from the cities and

towns in this area is “pumped to the Everglades via the S-9 pump.” Jd.

“major contributor to the [South New River] canal.”

FREIBERGER REPORT at 20 (App. 7, 15a). This ground water

pumped through S-9 is mineralized and has low levels of

dissolved oxygen. Jd. at 61 (App. 7, 17a) (dissolved oxygen

levels in the South New River Canal on the intake side of

the S-9 pump “were consistently low, presumably because

of the great amount of groundwater inflow to the canal”).

Dissolved oxygen is a critical constituent in lakes, rivers

and wetlands because fish and other aquatic life need to

breathe oxygen dissolved in the water in order to survive.

FLORIDA OCEANOGRAPHIC SOCIETY, COMMON WATER QUALITY

TESTS AND WHY THEY ARE IMPORTANT, DISSOLVED OXYGEN,

at www.floridaoceanographic.org/parameters.htm (last

visited Nov. 10, 2003). When the S-9 is in operation,

dissolved oxygen levels in the adjacent Everglades (WCA-

3) “immediately” decrease to about the same concentration

of dissolved oxygen in the canal from which the S-9 with-

draws water. FREIBERGER REPORT at 61 (App. 7, 17a). S-9

does not merely discharge run-off: it adds pollutants to the

canal water by pulling ground water up into the canal and

then discharges the canal’s contents into the Everglades.

Id. at 14 (App. 7, 14-15a). -

Neither the ground water nor the run-off collected

in the canal would naturally flow into the Everglades

because the water in the Everglades is higher than the

urban and agricultural land to the east of the levee. For

this reason, the waters of the Everglades and of the South

New River Canal “intermingle” only to the extent that the

S-9 pumping station forces canal water up and into the

Everglades.

The water discharged through S-9 into the Everglades

is categorized by the EPA and the State of Florida as

impaired by pollution.. Clean Water Act section 303(d)

requires states to file with the EPA reports that identify

water bodies within the state that are so polluted that

they fail to meet established water quality standards. 33

U.S.C. § 1313(d). The EPA then approves (or modifies) the

list of “impaired” waters. 33 U.S.C. § 1313(d)(2). The South

New River Canal, from which S-9 pumps water into the

Everglades, is so fouled by urban fertilizers, detergents,

household chemicals and ground water contaminants that

the canal is listed on the official approved 303(d) list as

being impaired — polluted beyond legal limits — as to

nutrients,’ dissolved oxygen and coliforms. U.S. EPA,

REGION 4, DECISION DOCUMENT REGARDING DEPARTMENT

OF ENVIRONMENTAL PROTECTION’S § 303(d) List AMEND-

MENT, available at http://www.epa.gov/region4/water/tmdl/

florida/florida303d_update.pdf (App. 8) [hereinafter “EPA

DECISION DOCUMENT’). The portion of the Everglades

* Nutrients are primarily phosphorus and nitrogen which are

constituents of fertilizers used in cities and farms.

” The EPA DEcIsION DocUMENT lists individual segments of water

bodies and gives each a Water Body Identification Number (“Wbid”).

The South New River Canal (also known as C-11 West) has been given

Water Body Identification Number 3279 and is listed as impaired as to

nutrients, coliforms and dissolved oxygen. EPA DECISION DOCUMENT

at 140 (App. 8, 18a). A map depicting these areas is attached as

Appendix 9. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

303(d) LisTED WATER SEGMENTS IN BROWARD COUNTY, available at

http://www.dep.state.fl.us/water/tmdl/docs/maps/broward.pdf (last visited

Nov. 10, 2003). The Water Body Identification Numbers appear on a

table on the right side of the map; the various impaired waters are

depicted as a salmon color; and the C-11 West canal (South New River

Canal) is located about % inch southeast of the D in the word “Broward”

on the map, immediately above Wbid number 3279 on the map. (App. 9,

19a).

that receives this polluted water is similarly listed as

being impaired as to nutrients and dissolved oxygen.” Id.

D. THE COMPREHENSIVE EVERGLADES RES-

TORATION PROJECT

The Comprehensive Everglades Restoration Project

(“CERP”) is a joint federal and state project to re-engineer

many of South Florida’s canals and pump stations to

provide additional water supply to urban and agricultural

areas as well as to the Everglades.”

The CERP includes plans for modifications to the S-9

pumping station. It calls for the construction of an auxil-

iary pump station to gather ground water seepage and

discharge it into the surface waters of the Everglades (the

S-9A project discussed above). In addition, the CERP also

plans for the impoundment and diversion to the south of

some urban storm water. SOUTH FLORIDA WATER MANAGE-

MENT DISTRICT, EVERGLADES REGULATION: C-11 WEST, at

http://www.sfwmd.gov/org/reg/esp/cllw.html] (last visited

Nov. 7, 2003) (see section entitled “Future Plans,” 74). The

District’s web site states that “neither of the two Federal

" The EPA DEcISION DOCUMENT also shows that the waters in the

Everglades that receive discharge from S-9 (Wbid Numbers 3268,

3268A and 3278A) are similarly impaired as to nutrients, dissolved

oxygen and mercury. EPA DECISION DOCUMENT at 140 (App. 8, 18a);

303(d) LISTED WATER SEGMENTS IN BROWARD COUNTY (App. 9, 19a).

“ CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL PROJECT

COMPREHENSIVE REVIEW STUDY, FINAL INTEGRATED FEASIBILITY REPORT

AND PROGRAMATIC ENVIRONMENTAL IMPACT STATEMENT, SUMMARY,

vii-x (Apr. 1999), available at http://www.evergladesplan.org/docs/

comp_plan_apr99/summary.pdf. The District has sought to lodge a

hard copy of this document with the Court.

projects is specifically being designed for treatment of

stormwater” although it is anticipated that some water

quality improvements may result. id.

E. THE EVERGLADES FOREVER ACT PERMIT

The United States Department of Interior has brought

extensive water pollution litigation against the District

and the State of Florida because the District was pumping

and conveying nutrient-laden agricultural storm water

into the Loxahatchee National Wildlife Refuge and the

Everglades National Park. United States v. South Florida

Water Management District, 28 F.3d 1563, 1568-79 (11th

Cir. 1994). One outcome of that case was a settlement

that resulted in passage of the Everglades Forever Act,

section 373.4592, Florida Statutes (2002). Section 9 of

that Act required the District to obtain a pollution dis-

charge permit for structures such as the S-9 pumping

station, and required the discharge from that pump

station to comply with all water quality standards by

December 31, 2006. § 373.4592(9)(k), Fla. Stat. (2002); see

also FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTEC-

TION, FINAL PERMIT, available at ftp://everglades.dep.

* Compare, Pet’r Br. at 12, characterizing these same components

as being designed to reduce pollution.

“ The Act called for pollution source reduction and an array of

treatment works to remove much of the nutrients before they could

reach the Everglades. The treatment works are denominated the

Everglades Construction Project. A permitting system was also required

under section 9(k) of the Act for other pumping stations and water

. discharge structures that discharge pollutants into the Everglades but

which are not part of the Everglades Construction Project.

§ 373.4592(9\(k), Fla. Stat.

state.fl.us/permitting/Non-ECP/Non-ECP%20Permit.pdf

(last visited Nov. 7, 2003)." It requires only “public

outreach” by the District and the promulgation of volun-

tary landscaping practices that, if followed, might help

to reduce pollution. SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, EVERGLADES REGULATION: C-1l1 WEST, at

http://www.sfwmd.gov/org/reg/esp/cllw.html (last visited

Nov. 7, 2003).

In 2003, the Florida legislature passed amendments

to the Everglades Forever Act. Ch. 2003-12, Laws of

Florida. Those amendments replace the former Act’s

specific deadlines with a “long-term plan” for achieving

water quality standards in the Everglades. Ch. 2003-12,

§ 1 (amending § 373.4592, Fla. Stat.).”*

The Long-Term Plan does not call for the S-9 dis-

charge to be in full compliance with water quality stan-

dards until 2036. Specifically, the Long-Term Plan at page

6-86 states as to the C-11 West basin that:

[EJach alternative assumed that the long-term

strategy to comply with water quality standards,

* This document is posted on the Florida Department of Environ-

mental Protection’s web site and the page references are to pages in the

current Everglades Forever Act permit.

* Section 1 of Chapter 2003-12 amended section 373.4592(2),

Florida Statutes to add a definition reading: “Long Term Plan” or “Plan”

means the district’s “Everglades Protection Area Tributary Basins

Conceptual Plan For Achieving Long-Term Water Quality Goals Final

Report” dated March 2003, as modified herein. § 373.4592(j), Fla. Stat.

That same section of Ch. 2003-12 also amended section 373.4592(3),

Florida Statutes — the Everglades Forever Act — so as to substitute this

Long-Term Plan for the previous compliance schedule.

including the numeric phosphorus criterion,

would rely on completion of the Western C-11

Impoundment and Diversion Canal CERP Pro-

ject (2006 completion) and the North Lake Belt

Storage CERP Project (2036 completion).

BuRNS & MCDONNELL, EVERGLADES PROTECTION AREA

TRIBUTARY BASINS CONCEPTUAL LONG-TERM PLAN FOR

ACHIEVING WATER QUALITY GOALS FINAL REPORT ** 6-86

(Mar. 17, 2003), available at http://exchange.law.miami.edu/

everglades/restore/FinalConceptual/finalconceptual_031703

%20(3.43mb).pdf (last visited Nov. 10, 2003) (parentheti-

cals in original). The State of Florida and the District have

previously used “long-term” plans as a substitute for

compliance deadlines. In 1987, the Florida legislature

passed the “Surface Water Improvement and Management

Act,” which found that

[Slurface water problems can be corrected and

prevented through plans and programs for sur-

face water improvement and management that

are planned, designed, and implemented by the

water management districts and local govern-

ments.

§ 373.451(5), Fla. Stat. (2002). Now, 16 years later, Florida

is still aiming to meet water pollution limits in the Ever-

glades. However, the deadline for compliance has been

postponed until the year 2036 — 64 years after passage of

the Clean Water Act.

In its permit application for the state permit, the

District explained that it operates the C-11 canal and the

S-9 pumping station for the following purposes:

The Project canals and control structures in the

C-11 basin have four functions: (1) to provide

flood protection and drainage for the basin, (2) to

supply water to the basin during periods of low

natural flow, (3) to intercept and control seepage

from Water Conservation Area (WCA) 3A, and (4)

to maintain a groundwater table elevation west

of S-13 adequate to prevent saltwater intrusion

into local groundwater.

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

FINAL PERMIT (EXHIBIT A) at II-33, available at ftp://

everglades.dep.state.fl.us/permitting/Non-ECP/Non-ECP%20

Permit%20Exhibit%20A.pdf (last visited Nov. 7, 2003).

The District did not include allocation of water to the

Everglades west of the pump station as one of the S-9

pumping station’s functions.

ARGUMENT

THE DISTRICT’S OPERATION OF THE S-9

PUMPING STATION REQUIRES AN NPDES

PERMIT BECAUSE IT ADDS GROUND

WATER POLLUTANTS TO THE WATERS IT

DISCHARGES INTO THE EVERGLADES

The heart of the District’s argument is that it should

not be held responsible for the pollution it discharges into

the Everglades through the S-9 pumps because the pumps

are not responsible for physically introducing pollution

into the waters of the South New River Canal. Pet’r Br. at

20, 26-27. That claim is inconsistent with the District’s

explanation of the S-9 pumping station in its brief and

contradicts the only government studies of that issue.

As stated in the District’s brief, a major component of

the S-9 discharge is ground water seepage. Pet’r Br. at 11.

When the S-9 pumps are operating, their rapid with-

drawal of immense quantities of water from the South

New River Canal dramatically lowers the water level of

the canal and causes ground water to flow into the canal.”

As described in a United States Geological Survey report

that investigated the effects of the operation of the S-9

pumps:

Surface water inflow from lateral canals and

ground-water inflow are the chief means of rais-

ing canal water-levels after pumping ceases. On

several occasions, groundwater was seen seeping

from the banks of South New River Canal during

and after pumping.

FREIBERGER REPORT at 14 (App. 7, 14-15a).

Ground water has different chemical characteristics

and contaminants than surface water because it stays in

the ground and has long contact with polluting materials

" The District also forces ground water into the South New River

Canal by holding the water levels in the Everglades west of the levee at

a much higher elevation than the water levels in the South New River

Canal. (App. 4, lla). This difference in water elevation forces ground

water to flow beneath the levee and come up into the C-11 basin where

it is collected in District canals and then discharged by the S-9 pumps.

Pet’r Br. at 11. The ground elevation in the C-11 basin is lower than the

Everglades west of the levee because drainage operations have caused

the disappearance of at least four feet of muck soil that formerly

covered the lands in this region. EVERGLADES INTERIM REPORT at 2-10,

available at http://www.sfwmd.gov/org/ema/everglades/interimrpt_98/

chpt2.pdf. The lowering of ground levels in the C-11 basin has resulted

in the flooding problems described in the amicus brief of the City of

Weston.

in the soils and rock. 55 Fed. Reg. 47,990, 47,995-96 (Nov.

16, 1990). Typical ground water pollutants include total

dissolved solids (salts and minerals that are dissolved in

the water) that degrade surface waters into which they are

discharged. FREIBERGER REPORT at 20 (App. 7, 15a); see

also Northern Plains Resource Council v. Fidelity Explora-

tion and Development Co., 325 F.3d 1155, 1158 (9th Cir.

2003), cert. denied, 2003 U.S. LEXIS 7730 (Oct. 20, 2003).

It does not matter whether the ground water pollut-

ants are naturally occurring or are introduced by human

activities. In Fidelity, the Environmental Protection

Agency rejected a state agency’s attempt to exempt natu-

rally occurring ground water pollutants from point source

regulations. 325 F.3d at 1162-63. The EPA’s position was

upheld by the Ninth Circuit which ruled that a mine

operator was required to obtain an NPDES point source

permit for a discharge of ground water to surface water

even though the pollutants had not been introduced into

the ground water by the discharger. Jd. Because the

operation of the S-9 pumping station causes ground water

to flow into the South New River Canal, and then dis-

charges this ground water seepage into the Everglades,

the discharge of this ground water through the S-9 pumps

requires an NPDES permit.

THE SOLICITOR GENERAL’S “UNITARY

WATERS” THEORY CONTRADICTS THE

EXPRESS TERMS OF SECTION 402 WHICH

REQUIRES PERMITS FOR ANY DISCHARGE

WHICH ADDS POLLUTANTS

A. The New Exemption From Section 402 Of The

Clean Water Act Sought By The District And

The Solicitor General Cannot Be Reconciled

With The Express Terms Of The Act

The discharge from the S-9 pumps is a mixture of

storm water and ground water. As set out in Argument I,

the ground water at issue here contains pollutants and the

discharge of polluted ground water into the Everglades

requires an NPDES permit. However, if the discharge

were entirely storm water it would still be subject to

regulation under section 402(p) of the Clean Water Act,

which requires NPDES storm water permits for discharges

which either: a) contribute to a violation of a water quality

standard in the receiving water; or b) are a significant

contributor of pollutants. 33 U.S.C. § 1342(p), CWA

§ 402(p) (App. 10, 20a-21a). The “unitary waters” theory of

the District and the Solicitor General would create an

exemption from this statutory requirement. Such a sweep-

ing exemption has no basis in the language or purposes of

the Clean Water Act.

Subsection 1342(p)(1) generally exempts storm water

from regulation prior to 1994 but requires NPDES permits

for five specified categories of discharges composed en-

tirely of storm water. Those five categories are set out in

the next subsection, subsection 1342(p)(2): (A) previously

permitted discharges, (B) discharges from industrial

activity, (C) large municipal storm water systems, (D)

medium municipal storm water systems (urban run-off)

and (E) discharges where the Administrator or the dele-

gated state administrator determines that the discharge

“contributes to a violation of a water quality standard” in

the receiving water or is a “significant contributor of

pollutants” to the receiving water. 33 U.S.C. § 1342(p)(2),

CWA § 402(p)(2) (App. 10, 20a) (emphasis added).

After 1994, additional storm water discharges that

require NPDES permits were to be designated by EPA

rules:

(T]he Administrator ... shali issue regulations

... which designate stormwater discharges, other

than those discharges described in paragraph (2)

to be regulated to protect water quality. ...

33 U.S.C. § 1342(p)(6), CWA § 402(p\(6) (App. 10, 21a)

(emphasis added). The regulations to be promulgated

under this latter section cannot address the five categories

of storm water discharges for which NPDES permits are

already required by statute.

The requirement of a storm water permit for dis-

charges that contribute to water quality violations is not

merely of academic interest. The water discharged

through S-9 into the Everglades is categorized by the EPA

and the State of Florida as impaired by pollution. Clean

Water Act section 303(d) requires states to file with the

EPA reports that identify water bodies within the state

that are so polluted that they fail to meet established

water quality standards. 33 U.S.C. §1313(d), CWA

§ 303(d). The EPA then approves (or modifies) the list

of “impaired” waters. 33 U.S.C. §1313(d)(2), CWA

§ 303(d)(2). The South New River Canal from which S-9

pumps water into the Everglades is listed on the official

approved 303(d) list as being impaired — polluted beyond

legal limits - as to nutrients,” dissolved oxygen and

coliforms. EPA DECISION DOCUMENT at 140 (App. 8, 18a).”*

The portion of the Everglades that receives this polluted

water is similarly listed as being impaired as to nutrients

and dissolved oxygen.”

Given that both the South New River Canal and the

Water Conservation Areas are in violation as to the same

pollution parameters, it appears that Florida and the EPA

have determined that the S-9 pump discharge “contributes

to a violation of a water quality standard.” Therefore a

Clean Water Act section 402(p)(2)(e) NPDES permit would

be required if the discharge were composed entirely of

storm water.

-B. There Is No Exemption In The Clean Water

Act Based On The Construction History Of

The Drainage Source

The District and Solicitor General attempt to parlay

the construction history of the discharge source into a new

exemption from the Clean Water Act. It is an established

“ Nutrients are primarily phosphorus and nitrogen which are

contaminants found in urban run-off and (as to phosphorus) also in

ground water.

“ A map which graphically depicts these areas is attached as

Appendix 9.

* The EPA DECISION DOCUMENT and related map also show that

the waters in the Everglades that receive discharges from S-9 (Wbid

Numbers 3268, 3268A and 3278A) are similarly impaired as to nutri-

ents, dissolved oxygen and mercury. (App. 8, 18a; App. 9, 19a).

fact that the canal from which pollutants are pumped into

the Everglades was carved out of the Everglades area as a

separate water body some 50 years ago through human

construction activity. Miccosukee Tribe of Indians v. South

Florida Water Management District, 280 F.2d 1364, 1366

(11th Cir. 2002). However, impoundments of waters by

levees or dams are specifically included in the definition of

“Waters of the United States.” 40 C.F.R. § 122.2(d) (includ-

ing “(ajll impoundments of waters otherwise defined as

waters of the United States under this definition”); see

Kaiser Aetna v. United States, 444 U.S. 164, 172 (1979)

(man-made pond connected to the Pacific Ocean consti-

tuted navigable waters for Clean Water Act regulatory

purposes).

As these waters exist today, the pollutants contained

in water collected in the drainage canal would not flow

into the Everglades except for the operation of the S-9

pumping station. Miccosukee, 280 F.3d at 1368-1369 and

n.8. Waters from the South New River Canal now “inter-

mingle” with the waters of the Everglades only to the

extent that the canal waters are forced upward several

feet by industrial-scale pumps.

The Solicitor General and the District argue that the

entirety of the waters of South Florida, including the

waters of Lake Okeechobee (a drinking water source), the

Everglades (including the impaired waters of the Water

Conservation Areas and the nearly pristine waters of

Everglades National Park), the agricultural canals that

receive pollution from 700,000 acres of sugar cane fields,

and canals in urban drainage basins that receive urban

storm water pollution containing urban fertilizers, deter-

gents, household chemicals, gas, and oil are one water

body because a century ago these waters had a “hydrologic

association.” Pet’r Br. at 22, 47-49; Br. of the United States

at 15-20. This merging of water bodies for the purpose of

avoiding water pollution regulation is the very antithesis

of the Clean Water Act approach which is to designate the

uses and establish water quality standards for each

individual water body for the specific purpose of protecting

the distinct, unique character of each of these natural

resources. 33 U.S.C. §§ 1313(c)(1), (2), CWA § 303(c)(1), (2).

Under this argument, the District, with impunity from

NPDES permitting, would be able to pump waters from

drainage canals that fail to meet the standard for human

recreation and fish and wildlife propagation and survival,

into Lake Okeechobee, a designated drinking water

resource.

East of pump station S-9 is a weed choked and debris-

strewn canal draining urban subdivision developments

and commercial areas; west of S-9 is the priceless Ever-

glades marsh. Under these circumstances, it cannot be

fairly argued that the South New River Canal and the

Everglades are the same body of water such that pollut-

ants that are in the canal are already located within the

Everglades.

Ill

THE DISTRICT IS NOT ENTITLED TO AVOID

THE SECTION 402 PERMITTING REQUIREMENT

BY CLAIMING THAT DISPOSAL OF GROUND

WATER SEEPAGE AND STORM WATER

CONSTITUTES AN ALLOCATION WITHIN

THE MEANING OF SECTION 101(g)

The District and the Solicitor General argue that CWA

section 101(g), 33 U.S.C. § 1251(g), supports the exemption

of the S-9 pump station from the NPDES permit require-

ment because regulation of water pollution cannot inter-

fere with allocation of water by the state. Br. of the United

States at 25 n.11; Pet’r Br. at 2-3. The District claims that

the S-9 pumping station is “allocating” water because it is

“used to provide the WCA with water for beneficial uses or

for release to Everglades National Park.” Pet’r Br. at 11.

However, in its application for the state Everglades For-

ever Act permit for the S-9 pumping station, the District

explained the purpose and function of the drainage canal

and pumping station:

The Project canals and control structures in the

C-11 basin have four functions: (1) to provide

flood protection and drainage for the basin, (2) to

supply water to the basin during periods of low

natural flow, (3) to intercept and control seepage

from the Water Conservation Area (WCA) 3A,

and (4) to maintain a groundwater table eleva-

tion west of S-13 adequate to prevent saltwater

intrusion into local groundwater.

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

FINAL PERMIT (EXHIBIT A) at II-33, available at ftp-/

everglades.dep.state.fl.us/permitting/Non-ECP/Non-ECP%29

Permit%20Exhibit%20A.pdf (last visited Nov. 7, 2003).

The District’s permit application correctly stated the facts.

The District is not “allocating”; it is “disposing.” It is not

the need for water in the Everglades that triggers the

decision to pump water at the S-9 pump station — it is high

water levels in the South New River Canal. The pumps

are started when the canal level reaches four feet NGVD

and are turned back off when the water has been lowered

to one foot NGVD. Pet’r Br. at 11. As the City of Weston

has vividly explained: 1) the pumps are disposing of

floodwaters; 2) without the pumps the entire South New

River Canal basin (the C-11 West basin) would be flooded;

and 3) the pumps are turned on to pull the canal down

whenever storms are approaching. Br. of Amicus City of

Weston at 4-6. The District is collecting, conveying, and

disposing of unwanted ground water and storm water, not

allocating water to the Everglades.

CONCLUSION

For the foregoing reasons, the judgment of the United

States Court of Appeals for the Eleventh Circuit should be

affirmed.

Respectfully submitted,

Monica K. REIMER

Davip G. GUEST

P.O. Box 1329

111 S. Martin Luther King, Jr. Blvd.

Tallahassee, FL 32302-1329

(850) 681-0031

Counsel for Amici Curiae

INDEX FOR APPENDICES

Page

SOUTH FLORIDA WATER MANAGEMENT DISs-

TRICT, PUMPING STATIONS (1973}..............20000+

U.S. ARMY CORPS OF ENGINEERS, INTERIM

WATER CONTROL PLAN FOR PUMPING STATION

9A AND STRUCTURE 381, available at http://

www.saj.usace.army.mil/projects/dwcp_cll.htm,

(yyy

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

EVERGLADES INTERIM REPORT 2-11 (Jan. 1, 1999),

available at http://www.sfwmd.gov/org/ema/ever

glades/interimrpt_98/chpt2.pdf..................0000+

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

ECOLOGICAL IMPACTS OF DROUGHT IN THE WaA-

TER CONSERVATION AREAS (Apr. 13, 2001),

available at http://www.sfwmd.gov/org/wrp/wrp_

evg/reports/drought_0401/drought0401.pdf.......

MapP OF C-11 WEsT BASIN AND CANAL IN CENTRAL

BROWARD COUNTY, at http://www.sfwmd.gov/org/

exo/broward/c1lbmp/images/jpgs/c-11west.jpg......

SOUTH FLORIDA WATER MANAGEMENT DISs-

TRICT, TURF & LANDSCAPE BEST MANAGEMENT

PRACTICES FOR THE C-11 WEST CANAL BASIN,

at http://www.sfwmd.gov/org/exo/broward/cl1

Re TIBSIUID DIGI ccccccecccccsccesscccsnscecsccsssscenecees

lla

12a

10.

INDEX FOR APPENDICES - Continued

Page

HERBERT J. FREIBERGER, U.S. GEOLOGICAL

SURVEY, EFFECTS OF BACKPUMPING FROM

SOUTH NEW RIVER CANAL AT PUMP STATION

S-9 ON QUALITY OF WATER IN WATER CON-

SERVATION AREA 3, BROWARD COUNTY, FLOR-

IDA 12, Open-File Rep. No. 73026 (1973)........

U.S. EPA, REGION 4, DECISION DOCUMENT

REGARDING DEPARTMENT OF ENVIRONMENTAL

PROTECTION’S § 303(d) LIST AMENDMENT, avail-

able at http://www.epa.gov/region4/water/tmdl/

FLORIDA DEPARTMENT OF ENVIRONMENTAL

PROTECTION, 303(d) LISTED WATER SEGMENTS

IN BROWARD COUNTY, available at http://www.

dep.state.fl.us/water/tmdl/docs/maps/broward.

l4a

18a

20a

APPENDIX 1

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;

APPENDIX 2

INTERIM WATER CONTROL PLAN

FOR

PUMPING STATION 9A

AND

STRUCTURE 381

JACKSONVILLE DISTRICT

U.S. ARMY CORPS OF ENGINEERS

May 2002

* * *

7-01. General Objectives.

* * *

With the addition of the S-9A pumps, the existing S-9

pump station will only be used as needed for pumping

larger runoff events or canal drawdown prior to antici-

pated events. This will prevent over pumping into WCA 3,

prevent over drainage of C-11, and reduce movement of

bottom sediments. The operation of S-9A is expected to be

near continuous to match the seepage losses from the

WCAs which will also aid in consistent canal stages.

7-02. Features.

The S-9A pump station is a seepage control pump

station that will replace the existing S-9 pump station’s

role of pumping seepage losses from WCA-3 which are

collected in from the L-37, L-33, and U.S. Highway 27.

This pump station will provide a total pumping capacity of

500 cfs, will be located on the L-37 Levee just north of the

existing S-9 pump station, and will discharge into C-304 in

eastern °WCA-3A. Pumping seepage will be the primary

role for the S-9A structure however, S-9 can perform this

function if needed for larger forecasted storm events.

* * *

The existing S-9 pump station is a flood control pump

station for the Western C-11 basin. This pump station

provides a-total pumping capacity of 2,880 cfs. S-9 is a 3-

bay pump station with three 960 cfs diesel engine driven

pumps. The pump station is located at the western end of

the C-11 Canal between the L-37 and L-33 Levees.

* * *

7-04. Overall Plan for Water Control.

“a * x *

The flood control phase of operation is characteristic

of periods of pumping runoff events that have occurred in

the C-11 basin in order to remove excess runoff or regain

canal storage.

* * *

7-09. Flood Control Operations.

The three large S-9 pumps will continue to operate

according to their existing flood control regulation with

pumping beginning at 4.0 ft., NGD or sooner as measured

at S-13A headwater. The C-11 canal will operate as stated

in Chapter 7 of the “Master Water Control Manual East

Coast Canals” and the “Master Water Control Manual

Water Conservation Areas, Everglades National park, and

ENP-South Dade Conveyance System”. The S-9 and S-9A

pumping station will be operated whenever the water level

in the C-11 at S-13A exceeds elevation 4.0 ft., NGVD;

however, the water surface should not be drawn down

below elevation 0.0 ft., NGVD at the pumping station S-9.

Under design head the S-9 pumping station capacity is

2,880 cfs and the S-9A capacity is 500 cfs with a total

operating flow not to exceed 2,880 cfs per the non-ECP

operating permit. The non-ECP permit does not permit the

total flow from S-9 and S-9A to exceed 2,880 cfs.

* * *

APPENDIX 3

Everglades

INTERIM REPORT

JANUARY 1, 1999

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

* * oe

Chapter 2: Hydrologic Needs: The Effects of

Altered Hydrology on the Everglades

* * *

Post-C&SF Project

* * *

The first major earthworks of the C&SF Project was

to construct a 100-mile-long series of levees and borrow

canals from Palm Beach to Dade counties. These levees

were completed during 1952 to 1954 and became the

eastern boundaries of what would become the WCAs,

effectively stopping Everglades sheetflow from advancing

on urban coastal areas. The next step during the period

1954 to 1959 entailed construction of levees 5, 6 and 7,

which formed the northern and western boarders of the

WCAs. Construction of additional levees (1 through 4 and

28) completed the partitioning off of 700,000 acres

(283,290 ha) of deep muck lands that became known as the

Everglades Agricultural Area (EAA). Flood protection for

the EAA was provided by construction of large-capacity

pump stations. Other flood protection activities during the

1954 to 1959 period included the deepening of the Hills-

boro, North New River and Miami canals in the EAA and

construction of water control structures (S-11A, S-11B and

S-11C) that moved water from WCA-2 to WCA-3, thereby

diverting it away from coastal areas. Pump stations (S-9

10a

and private pump stations) were also constructed to move

water west from urban areas into the WCAs.

* * *

lla

APPENDIX 4

April 13, 2001

Ecological Impacts of Drought

in the Water Conservation Areas

* * *

South Florida Water Management District

* * *

General Information

* * *

Water Conservation Areas 3A and 3B

Management of water levels within WCA-3A and WCA-3B

is the responsibility of the District in accordance with

regulation schedules set by the USACE. * * * Water levels

in WCA-3A are regulated from 9.5 to 10.5 ft NGVD.

* * *

APPENDIX 5

C-11 WEST BASIN and CANAL in CENTRAL BROWARD COUNTY

A. WCA 2B AN

ft - 6 EF

a2 bt, ect amines 4 :

my aot Maa They GF Ret +

e . ’

¥ f

Sheridan St.

27) Pembroke Pines

Pines Bivd

Pembroke Road

C-11 West Basin Map Not to Scale

l3a

APPENDIX 6

Turf & Landscape

Best Management Practices

for the C-11 West Canal Basin

Broward County, Florida

Executive Summary

When it rains in the C-11 West Basin, urban fertilizers,

detergents, household chemicals, gas, oil and other pollut-

ants “wash off” roads, parking lots and driveways and are

carried by “stormwater” into drainage canals. If excess

fertilizer has been applied, there is also the potential for

nutrient laden stormwater to “run off” of lawns and

landscaping as well. Ditches, culverts and smaller canals

within the basin eventually drain into the C-11 West

Canal — and once in the C-11 West Canal — stormwater

from the basin is pumped into the Everglades through the

S-9 Pump Station just west of US 27 near Holiday Park.

Unlike Broward’s other 14 drainage basins that also

collect polluted stormwater in canals, the stormwater

drains into the C-11 West Canal is discharged directly into

the Everglades, in Water Conservation Area 3A. There is

currently no type of structure to hold and process — or

filter out — the pollution and sediments in canal water

before it is discharged into the Everglades.

Because so much untreated stormwater is discharged into

the Everglades by way of the C-11 West Canal, the C-11

West Basin has been cited as one of the top urban pollut-

ers of the Everglades.

* * *

l4a

APPENDIX 7

EFFECTS OF BACKPUMPING FROM SOUTH

NEW RIVER CANAL AT PUMP STATION S-9

ON QUALITY OF WATER IN WATER-CONSERVATION

AREA 3, BROWARD COUNTY, FLORIDA

Herbert J. Freiberger

OPEN-FILE REPORT

73026

Prepared by

U.S. GEOLOGICAL SURVEY

in cooperation with

CENTRAL AND SOUTHERN FLORIDA

FLOOD CONTROL DISTRICT

* * *

1973

* * *

[12] WATER MANAGEMENT

Water Levels

The ground-water levels in the drainage area range

from about 6 feet above ms1 north of the canal to about 3

feet above msl south of the canal near Snake Creek Canal.

The ground water level is about 4 feet above msl adjacent

to South New River Canal.

* * *

[14] Surface-water inflow from lateral canals and

ground-water inflow are the chief means of raising canal

15a

water-levels after pumping ceases. On several occasions,

ground water was seen seeping from the banks of South

New Rivert Canal during and after pumping.

* * *

[20] WATER QUALITY

Background Data

[22] South New River Canal between S-9 and S-13A is

occasionally contaminated by bacteria. Average total and

fecal coliform counts are 5,550 and 330 colonies per 100 ml

(milliliters) of water. Maximum total and fecal coliform

counts were 20,400 and 1,300 colonies per 100 ml of water.

The high concentrations of coliform bacteria that occasion-

ally occur are presumably from cattle wastes.

[30] Dissolved Oxygen

* * *

Concentrations of dissolved oxygen at site 8, in South

New River Canal east of S-9 were relatively lower (0.2 to

2.4 mg/l) during all four sampling periods when compared

with concentrations in Conservation Area 3A (as high as

12.9 mg/l). Dissolved oxygen at site 8 was lower than

father east in the canal because of the great amount of

ground-water discharge to the canal east of S-9 after

pumping.

[35] Decreases in dissolved oxygen west of S-9 (site 9)

in Water Conservation Act 3A by backpuming were more

l6a

drastic in the dry season than in the wet season (fig. 13).

During the west season, when much of the water in South

New River Canal east of S-9 is derived from surface water,

the dissolved oxygen is higher than during the dry season.

~ * 7

[45] Nitrogen

* . .

{56] The effects of backpumping on changes in nitro-

gen species were most pronounced at S-9, but changes

were also observed in canals and marshes bordering the

canals in Water-Conservation Area 3. Changes in nitrogen

content in the canals of Water Conservation Act 3 were

similar to changes in dissolved oxygen with respect to

location. In effect, the greater the distance from the pump

station, the less the degradation of the water due to

increased nitrogren. The data in figures 22 and 23 show

that degradation by ammonia in the two canals is most

pronounced within a mile of the pump station.

* * *

[60] SUMMARY AND CONCLUSIONS

* * *

Backpumping of water at S-9 generally lowers the

water level in South New River Canal near the pump

station about 4 feet while at S-13A, the eastern end of the

backpumping reach, the water level is lowered only about

2 feet. Much of the recharge to the canal near S-9 after

pumping is from ground-water inflow which greatly

influences the quality of water in South New River Canal.

* * *

17a

[61] Dissolved oxygen concentrations in South New

River Canal just east of S-9 were consistently low, pre-

sumably from the great amount of ground-water inflow to

the canal. Dissolved oxygen west of S-9 was considerably

higher than east of S-9. During backpumping, dissolved

oxygen concentrations west of S-9 immediately decreased

to about the same concentrations as east of S-9. Sags in

dissolved oxygen were recorded in the canal system of

Water Conservation Area 3 as far as 3 miles away from S-

9. Dissolved oxygen in marsh sites remote from the con-

servation area canals did not decrease.

* * *

[62] Ammonia was the dominant form of nitrogen in

the South New River Canal east of S-9 because of the lack

of dissolved oxygen needed to convert it to nitrate. Ammo-

nia in the canals of Water-Conservation Area 3 west of S-9

immediately increased when pumping began. Remote

marsh sites were not affected. The areal extent of degrada-

tion was dependent on the amount of backpumping and on

the amount of flow in the canals from releases from Water-

Conservation Area 2.

18a

APPENDIX 8

DECISION DOCUMENT

REGARDING

DEPARTMENT OF ENVIRONMENTAL

PROTECTION’S §303(d)

LIST AMENDMENT SUBMITTED ON

OCTOBER 1, 2002 AND SUBSEQUENTLY

AMENDED ON MAY 12, 2003

Prepared by the

Environmental Protection Agency, Region 4

Water Management Division

[Page 140] June 11, 2003

HUC Name Water Segment WBID Parameters of Comments | Priority Basin Projected Year

Concern Rotation of TMDL

Group Development

*— *

SOUTHEAST WCAS3B S-333 3278A | Dissolved Oxygen, Nutrients Low Group 5 2011

FLORIDA COAST

* *

SOUTHEAST WCA3A CENTER | 3268 Dissolved Oxygen, Nutrients, Low Group 5 2011

FLORIDA COAST | SECTOR Mercury (Based on Fish

Consumption Advisory)

SOUTHEAST WCA3A US27 3268A _ | Dissolved Oxygen, Nutrients Low Group 5 2011

FLORIDA COAST | Perimeter

* *

SOUTHEAST SOUTH NEW 3279 Dissolved Oxygen, Nutrients, Low Group 4 2010

FLORIDA COAST | RIVER CANAL Coliforms

* *

19a

2 —— ie SO SE 1998 303(d) Listed Water

=== =i! a % j Segements in

SS TST ec: 4

a =e ait > ao Broward County

ui i ot + Ld) - ime’ - em SS Se

aii +, ts epee val ~ a s candtiors and & nat ttanded ter dairasians o ondyés ol the techawe Sow

al tT} - 0 ~ =| For more infarmoten or copes contact Moll Brondt ot (850) 92)-9469. or

Bo: ‘a8 | same | Pi | I me = " hol. brondt@xiep state fl.us Locuhon bdpwkO! E \wonous_mops\ind!_ assess Taps

TSH |B T + y — .

T 7 : i ii t “| 1

= eescess: eo SS | \\i Basin Wbid

TT i it ii ‘eee

— jaa ] +)

, , TTTT — ICWW AB POMPANO | 3226F

pip JS wat L-28 GAP | 3269

: N ar Tamiami Cana! | 32618

= TTT LN —= WCA3B S-333 | 3278

: Jt 4 A CONSERVATION AREA 38 | 3278

ae oe $8 3260

Ho . L-3 3260A

+ =, $-7 3263

. +} HOLEY LAND | 32608

= ‘ HOLEY LAND | 3263A

‘ _— L-28 INTERCEPTOR 3266

= WCA2A CENTER SECTOR 3265€

L | S22’ WCA2A EAST SECTION 3265

3 WCA2A SW PERIMETER 32658

see = Ww WCA3A US27 PERIMETER 3268A

ae t WCA3A NORTH SECTOR 32688

ae C-14 3270

ms POMPANO CANAL | 3271

‘. ICWW AB DADE CO | 32266

WCA2A L-358 PERIMETER 3265C

CONSERVATION AREA 28 3272

C-13 WEST 3273

WCA3A CENTER SECTOR 3268

C-12 3276

4 C-11 WEST 3279

E. HOLLOWAY CANAL | 32778

: NORTH NEW RIVER CANAL | 3277

he NORTH NEW RIVER CANAL 32808

aa te eS SOUTH NEW RIVER CANAL 3277A

ENS bs C-1) EAST 3281

page C-10 3282

f WCA3B MIAMI CANAL | 32788

C-9 WEST | 3264

a : Legend

re ‘ ‘——

| Ia [_] County Boundary

a! ; Vi. WAFER Facilities

= _ ¢ NPDES (National) Facility

3 ® State or Local Facility

F Major Roads

\_/ Water Lines

2. civ % 7; pe 6,4,” .

. a Water Bodies

: ___, 1998 303(d) Listed Waters

(

vd ae:

== °

| 7, 3 0 3. 6 Miles

i, mr ——— |

Zs DADE ®

20a

APPENDIX 10

33 USCS § 1342 (2003)

§ 1342. National pollutant discharge elimination system

* * *

(p) Municipal and industrial stormwater discharges.

(1) General rule. Prior to October 1, 1994, the

Administrator or the State (in the case of a permit pro-

gram approved under section 402 of this Act [this section])

shall not require a permit under this section for discharges

composed entirely of stormwater.

(2) Exceptions. Paragraph (1) shall not apply with

respect to the following stormwater discharges:

(A) A discharge with respect to which a permit

has been issued under this section before the date of the

enactment of this subsection [enacted Feb. 4, 1987].

(B) A discharge associated with industrial

activity.

sewer system serving a population of 250,000 or more.

(D) A discharge from a municipal separate

storm sewer system serving a population of 100,000 or

more but less than 250,000.

(E) A discharge for which the Administrator or

the State, as the case may be, determines that the storm-

water discharge contributes to a violation of a water

quality standard or is a significant contributor of pollut-

ants to waters of the United States.

* * *

2la

(6) Regulations. Not later than October 1, 1993, the

Administrator, in consultation with State and local offi-

cials, shall issue regulations (based on the results of the

studies conducted under paragraph (5)) which designate

stormwater discharges, other than those discharges

described in paragraph (2), to be regulated to protect

water quality and shall establish a comprehensive pro-

gram to regulate such designated sources. The program

shall, at a minimum, (A) establish priorities, (B) establish

requirements for State stormwater management pro-

grams, and (C) establish expeditious deadlines. The

program may include performance standards, guidelines,

guidance, and management practices and treatment

requirements, as appropriate.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.