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

Supreme Court of the GAnited

In The

¢

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

v.

MICCOSUKEE TRIBE OF INDIANS, et al.,

Respondents.

°

On Writ Of Certiorari To The United States Court

Of Appeals For The Eleventh Circuit

¢

BRIEF AMICI CURIAE OF THE NATIONAL

TRIBAL ENVIRONMENTAL COUNCIL

ANU THE NATIONAL CONGRESS OF AMERICAN

INDIANS IN SUPPORT OF RESPONDENTS

+

TRACY A. LABIN*

NATIVE AMERICAN RIGHTS FUND

1712 N St., NW

Washington, DC 20036

(202) 785-4166

ROBERT T. ANDERSON, ESQUIRE

DIRECTOR, NATIVE AMERICAN

LAW CENTER

UNIVERSITY OF WASHINGTON

SCHOOL OF LAW

William H. Gates Hall, Box 353020

Seattle, Washington 98195-3020

(206) 685-2861

WILLIAM H. RODGERS, JR., ESQUIRE

STIMSON BULLITT PROFESSOR OF

ENVIRONMENTAL LAW

UNIVERSITY OF WASHINGTON

SCHOOL OF LAW .

William H. Gates Hall, Box 353020

Seattle, Washington 98195-3020

(206) 543-5182

*Counsel of Record for all Amici

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether a massive pump system and storm sewer that

back-pumps pollutants from a 71-square-mile drainage

area of Broward County into the Everglades and onto

Miccosukee tribal lands through four huge pipes is a

“point source” under the Clean Water Act obliged to secure

an NPDES permit?

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURITAE...............cccceceeeeeeeees 1

STATEMENT OF FACTS....ccccccscccscsscccccccssccesseescseeses 3

SUMMARY OF ARGUMENT................:cccccsseeeeeeeeeees . 6

PN 0 |, Ee 9

I. THE INTRODUCTION OF POLLUTED

WATERS BY ONE SOVEREIGN INTO THE

WATERS OF ANOTHER SOVEREIGN IS

PROPERLY THE SUBJECT OF FEDERAL

REGULATION UNDER THE CLEAN WA-

TER ACT AND THUS NPDES PERMITTING

IS NECESSARY AND APPROPRIATE HERE

AS THE DISCHARGE OF POLLUTANTS BY

FLORIDA ADVERSELY AFFECTS INDIAN

RIGHTS AND PROPERTY ..............:0000eeeeeeees 9

II. CONSIDERATIONS OF ENVIRONMENTAL

JUSTICE REINFORCE THE CONCLUSION

THAT THE NPDES PERMIT PROVISIONS

SHOULD BE APPLIED TO PROTECT

TRIBAL LANDG ......cccccccescescocccscvesscvessesssescecs 12

III. THE S-9 STRUCTURE AT ISSUE HERE IS

A POINT SOURCE UNDER SETTLED PRO-

VISIONS OF THE CLEAN WATER ACT........ 15

CONCLUSION ...ccccosocccccccossccccesscssssssososcnesososvessonseses 22

iii

TABLE OF AUTHORITIES

Page

CASES

Amigos Bravos v. EPA, 324 F.3d 1166 (10th Cir.

EEE 20

Arkansas v. Oklahoma, 503 U.S. 9141992)................. 10, 16

Blue Legs v. United States, 867 F.2d 1094 (8th Cir.

SEES eee 15

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York, 273 F.3d 481 (2d Cir.

EEE SEE SEELET 19

City of Albuquerque v. Browner, 97 F.3d 415 (10th

Cir. 1996), cert. denied, 522 U.S. 965 (1997) ............. 3, 10

City of Tulsa v. Tyson Foods, Inc., 258 F. Supp. 2d

inn ccnrcrncemeensnenpnanssecnnnenneneds 21

Comm. to Save Mokelumne River v. East Bay

Municipal Utility District, 13 F.3d 305 (9th Cir.

1993), cert. denied, 513 U.S. 873 (1994) .............ccceceeeeee 20

Community Ass’n for Restoration of the Environ-

ment (CARE) v. Henry Bosma Dairy, 65 F. Supp.

a 20

Environmental Defense Center v. EPA, 319 F.3d 398

EEE 18

Georgia v. Tennessee Copper Co., 206 U.S. 230

CE LTE 11

Hodel v. Virginia Surface Min. and Reclamation

Maen, Inc., 462 UB. BB4 (1981) ..ccccccccsccccccccccccccccceicccocees 9

Int'l Paper Co. v. Ouellette, 479 U.S. 481 (1987)............... 10

Mescalero Apache Tribe v. Jones, 411 U.S. 145

SLES 15

iv

TABLE OF AUTHORITIES -— Continued

Page

Miccosukee Tribe of Indians v. South Florida Water

Mgmt. Dist., 1999 WL 33494862 (S.D. Fla. 1999).......... 5

Miccosukee Tribe of Indians of Florida v. United

States, 980 F. Supp. 448 (S.D. Fla. 1997) ................ 3, 4,5

Milwaukee v. Illinois, 451 U.S. 304 (1981)..............00+. 10, 12

Minnesota v. Mille Lacs Band of Chippewa Indians,

a ie, Bie a erensrensresnanttccnniintctatnnritaniiiiinnn 2

Mississippi Band of Choctaw Indians v. Holyfield,

ee Ce ee creccrceiaiiintiesicainiiainitaitiincuseantibaiitaiitiasaiiipmainans 15

Missouri v. Illinois, 200 U.S. 496 (1906) ................ccceeeeeeee 11

Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998) ................. 3

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156

Ge GI Fie ccnencenctnissnsncnesiannstnsetsiiniiinniasainaiinnmaies 19

New Mexico v. Mescalero Apache Tribe, 462 U.S. ~

ee Gai cccrecnresnsectnnmintnenmemaneeennmemntanennnnies 15

Northern Plains Resource Council v. Fidelity

Exploration & Dev. Co., 325 F.3d 1155 (9th Cir.

2003), cert. denied, ___ U.S. ___, 72 USLW 3148

I Fae, a ecriereccnicincnsnscinnennicinsaisemssaneinbieiiinnieeiensine’ 21

Oneida Indian Nation v. County of Oneida, 414

es Ge Ge ccensererenssnnntensinenniantineneunnmniininenmenn 15

Reynolds v. Rick’s Mushroom Service, Inc., 246

F. Supp. 2d 449 (E.D. Pa. 2003) ...................ccccssesessseseees 20

Seminole Nation v. United States, 316 U.S. 286

EEE enncnnnsscsnccsancainatinideiniairanenbninindainiasenianeenemaiiieands 14

United States Public Interest Research Group v.

Atlantic Salmon of Maine, LLC, 257 F. Supp. 2d

GEE GD. BED. SBGED cceccccccssscesssssssscssssssrecvessrsnemesnsessscsnsnsnes 20

v

TABLE OF AUTHORITIES - Continued

United States v. South Florida Water Mgmt. Dist.,

Case No. 88-1886 (S.D. Fla. 1988).................cccecceeeeeeeeees 5

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658

Gis a hesecincieeieetiirtenaiaieeneniencinasiadiisdeatianmsiataitaniaisieaiceranaaniiaigaaaati 2

weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ......... 16

Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001).................. 3

STATUTES

ae SIE iehiniennimnenincicinnaiminnenienbinunmeiaiitabmes 4

RE 4

Ne 4

Be i Oe Se iterrsereneincssnciennacensenesnaaimenpinniiiainanseail 4

rte na reriataiieinamemaeineiineeiintaeeniel 10

Br te aniiesintsicnintarerterterrsrnrenniinidirtniadilitlidianaiiaitaail 10

LE TT 17

ee Oe I ciicnisisinsiicsninncihiniheiiiaimincaninatettaitiaaiimtaitaiinsal 18

eRe 18

i 16

Or rE cerenisenienteniindiinnaniinrnntenntnanienieabieini 3, 11

Miccosukee Reserved Area Act, Pub. L. No. 105-

I 4

Water Resources Development Act of 2000, Pub. L.

ee es Ss INE scinreniceticsicatetiiinicinirpeniteiiiiaarsianieael 15

vi

TABLE OF AUTHORITIES -— Continued

Page

FEDERAL REGISTER AND EXECUTIVE MATERIALS

ie NE, Sitti hiceitcrnssntaninmeteteadiimsemnsinsieeeimunsgnnienmnennnaessniuen 14

es BENNI SI niccnenienenseensentememnnnemmmennemememnnne 1l

ee 14

MISCELLANEOUS

Brief of Appellant South Florida Water Manage-

ment District, South Florida Water Mgmt. Dist. v.

Miccosukee Tribe, 280 F.3d 1364 (11th Cir. 2002) ......... 16

ROBERT D. BULLARD, DUMPING ON DIXIE: RACE,

CLASS, AND ENVIRONMENTAL QUALITY (1990)................. 12

MARJORIE STONEMAN DOUGLAS, THE EVERGLADES:

EEE ene een ONE 4

ROBERT H. KELLER & MICHAEL F. TUREK, AMERICAN

INDIANS & NATIONAL PARKS (1998) ...............cccccceeeeeeeeeees 3

Robert R. Kuehn, A Taxonomy of Environmental

Justice, 30 Envtl. L. Rep. 10681 (2000)...................00000 13

Richard J. Lazarus, Fairness in Environmental

Law, 27 Envtl. L. Rep. 705 (1997) .............cccccccccccrrrereres 12

THE LAW OF ENVIRONMENTAL JUSTICE: THEORIES

AND PROCEDURES TO ADDRESS DISPROPORTIONATE

RISKS (Michael B. Gerrard ed. 1999) ................cccccceceeees 13

C. RECHTSCHAFFEN & E. GAUNA, ENVIRONMENTAL

JUSTICE: LAW, POLICY & REGULATION (2002) ................. 13

WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR

& WATER POLLUTION Vol. 2 (1986) ..................... 17, 19, 20

Vii

TABLE OF AUTHORITIES — Continued

Page

William H. Rodgers, Jr., The Miccosukee Indians

and Environmental Law: A Confederacy of Hope,

I 6

Dean B. Suagee, The Indian Country Environ-

mental Justice Clinic: From Vision to Reality, 23

eae 13

BUFFALO TIGER & HARRY A. KERSEY, JR., A LIFE IN

| en 3,5

Kim Topp, TINKERING WITH EDEN: A NATURAL ~

HISTORY OF EXOTICS IN AMERICA (2001)...............20seeee00 18

http://www.epa.gov/ost/standards/wgqslibrary/tribes/

fl_4_miccosukee.pdf (visited Nov. 10, 2003) .................. ll

1

INTEREST OF AMICUS CURIAE’

Amici Curiae, National Tribal Environmental Council

(NTEC) and National Congress of American Indians

(NCAI), are organizations that represent the interests of

federally recognized Indian tribes. NTEC, which was

formed in 1991, is a membership organization dedicated to

working with and assisting tribes in the protection and

preservation of the reservation environment. NTEC’s

mission is to enhance each tribe’s ability to protect, pre-

serve and promote the wise management of air, land and

water for the benefit of current and future generations.

NTEC membership is open to federally recognized tribes

throughout the United States, and currently has 178

member tribes. NCAI, which was founded in 1944, is the

oldest and largest organization of tribal governments in

the United States. Today, its membership includes 250

tribes from across the Nation. Its mission is to inform

decision-makers about tribal self-government, treaty

rights, and a broad range of federal policy issues affecting

tribal governments.

Amici’s member tribes have natural resources upon

which they depend for their survival, including in many

cases, off-reservation hunting, fishing and gathering

* Counsel for Petitioner and Counsel for Respondents both consent

to the filing of the Brief of Amicus. Their letters are submitted for filing

herewith. No counsel for a party authored this brief in whole or in part.

No person or entity, other than Amici Curiae, their members or their

counsel made a monetary contribution to the preparation and submis-

sion of this brief.

2

rights, which are often necessary for subsistence.’ Tribal

resources and rights are jeopardized if point sources are

free to discharge pollution, unchecked, to their detriment.

Like the Miccosukee Tribe here, Amici’s tribes must be

able to rely on the regulation and permitting of polluting

effluent discharges from point sources under the Clean

Water Act’s Nationa! Pollution Discharge Elimination

System provision to protect their interests. As the protec-

tive scope of that provision is being challenged here, Amici

have a substantial interest in this case. A further interest

derives from the significant role Indian tribes play under

the Clean Water Act, which was expanded by the Congress

in 1987 to afford tribes “Treatment as States.” 33 U.S.C.

§ 1377(e). This provision enables tribes to acquire permit-

issuing and other authorities over activities that pollute

on-reservation and that would otherwise be regulated

directly by the Environmental Protection Agency.’ Authority

? See, e.g., Minnnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999); Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979).

* The statute provides that: “The Administrator is authorized to

treat an Indian tribe as a State for purposes of subchapter II of this

chapter and sections 1254, 1256, 1313, 1315, 1318, 1319, 1324, 1329,

1341, 1342, 1344, and 1346 of this title to the degree necessary to carry

out the objectives of this section, but only if -

(1) the Indian tribe has a governing body carrying out sub-

stantial governmental duties and powers;

(2) the functions to be exercised by the Indian tribe pertain

to the management and protection of water resources which

are held by an Indian tribe, held by the United States in

trust for Indians, held by a member of an Indian tribe if

such property interest is subject to a trust restriction on

alienation, or otherwise within the borders of an Indian res-

ervation; and

(Continued on following page)

3

that may be exercised by Indian tribes includes NPDES

issuance under section 402, which is the subject of this

case. Twenty-seven Indian tribes have received treatment-

as-state approvals — all of which have been upheld by the

courts.‘ Since many tribes exercise authority pursuant to

the “treatment as state” provision, and many more may do

so in the future, the Court’s decision as to the reach of

“point source” authority is vitally important to Amici.

+

STATEMENT OF FACTS

The Miccosukee Tribe is a federally recognized Indian

tribe that counts the Everglades of South Florida as its

homeland.’ The Tribe and its members have numerous

properties in this region, among them 189,000 acres in

Water Conservation Area 3A which are held under “per-

petual lease” from the State of Florida — a lease which the

Tribe accepted in exchange for relinquishing all of its

aboriginal title claims in Florida. See Miccosukee Tribe of

(3) the Indian tribe is reasonably expected to be capable, in

the Administrator’s judgment, of carrying out the functions

to be exercised in a manner consistent with the terms and

purposes of this chapter and of all applicable regulations.

33 U.S.C. § 1377(e).

* See, e.g., City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir.

1996), cert. denied, 522 U.S. 965 (1997); Montana v. U.S. EPA, 137 F.3d

1135 (9th Cir. 1998); Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001).

* See BUFFALO TIGER & HARRY A. KERSEY, JR., A LIFE IN THE

EVERGLADES (2002) (hereinafter “2002 Tiger”). On tribal history within

the park, see ROBERT H. KELLER & MICHAEL F. TUREK, AMERICAN

INDIANS & NATIONAL PARKS, ch. 6 (1998).

4

Indians of Florida v. United States, 980 F. Supp. 448, 452-

53 (S.D. Fla. 1997). Within the leased area the Tribe has

perpetual rights to reside, to exercise religious functions,

to take and use native materials, and to engage in agricul-

tural, hunting, fishing, and frogging activities. Jd. at 453.

Tribal members also have recognized subsistence hunting,

fishing and gathering rights in both the Big Cypress

National Preserve and the Everglades National Park. See

25 U.S.C. §§ 1742(6), (8), 1750a(7). In addition, the Tribe

also has the exclusive right to use and occupy a 667-acre

strip known as the Miccosukee Reserved Area on the

northern edge of the Everglades National Park. See

Miccosukee Reserved Area Act, Pub. L. No. 105-313, 112

Stat. 2964 (1998). Finally, the Federal Government holds

75,000 acres of land, known as the Miccosukee Federal

Indian Reservation, in trust for the Miccosukee Tribe.

Almost 50,000 acres of the Reservation are located within

Water Conservation Area 3A. See Miccosukee Tribe of

Indians, 980 F. Supp. at 452; 25 U.S.C. § 1750d.

The Everglades “begin” at Lake Okeechobee, Marjorie

Stoneman Douglas wrote in 1947. MARJORIE STONEMAN

DOUGLAS, THE EVERGLADES: RIVER OF GRASS 9 (1997). The

“river of grass” she described was seventy miles wide and

several inches deep, and it flowed circuitously north to

south. Time has brought significant changes to the plumb-

ing of the Everglades but the starting line is still Lake

Okeechobee and the prominent flows are still north to

south. The S-9 structure at issue here reverses the flow

and back-pumps stormwater and pollutants in huge

volumes (the pumping capacity of the station is

5

1,861,392,900 gallons in 24 hours) into Water Conserva-

tion Area 3A, the so-called “Everglades Protection Area.”

Much of the land upon which the Tribe lives, works, and

uses for religious and cultural purposes, is located within

Conservation Area 3-A and is adversely affected by the

discharge of pollutants from the S-9 pumping station.

As the lower court recognized, “(t]he way of life of the

Tribe and its members, including their religious, cultural,

economic, and historical identity, relies upon the Ever-

glades ecosystem and upon preservation of the Everglades

in its natural state.” Miccosukee Tribe of Indians v. South

Florida Water Mgmt. Dist., 1999 WL 33494862 (S.D. Fla.

1999) *1. “Historically, islands of trees in the Leased Area

have been the site of the Tribe’s religious and cultural

practices. The tree islands provide dry spots within the

Everglades where tribal members can build traditional

Indian huts known as chickees, and plant corn and other

vegetables. An integral part of the Tribe’s religious tradi-

tion is the spring planting of corn, accompanied by the

Green Corn Dance. The tree islands also are a source of

plants used in traditional tribal medicines.” Miccosukee

Tribe of Indians, 980 F. Supp. at 453.

This case is one of several chapters in the effort by the

Miccosukee and others to protect the flora and fauna of the

Everglades from pollution. In 1988, the United States filed

United States v. South Florida Water Mgmt. Dist., Case

No. 88-1886 (S.D. Fla. 1988), based on the theory that

state-sanctioned nutrient pollution in the Everglades

Agricultural Area, just south of Lake Okeechobee, exacted

* 2002 Tiger, supra note 5, at 153-54.

6

a heavy ecological price on federal holdings further south,

including the Miccosukee territory. The Miccosukee Tribe

intervened in this case in 1992, and has maintained a

vigorous and effective presence ever since. See William H.

Rodgers, Jr., The Miccosukee Indians and Environmental

Law: A Confederacy of Hope, 31 Envtl. L. Rep. 10918

(2001) (describing the litigation).

¢

SUMMARY OF ARGUMENT

The Miccosukee Tribe brought suit against the South

Florida Management District here simply to enforce a

valid federal permitting scheme. The Tribe asserts that

the S-9 pumping station, which indisputably pumps

pollutants into the Everglades, is a point source that must

obtain a National Pollution Discharge Elimination System

(NPDES) permit. The Tribe does not ask for special favors

to preserve its unique, vulnerable, and historic properties.

It asks only for a fair chance to bring these “point source”

laws of general applicability to bear on its current exigen-

cies.

NPDES permitting is particularly appropriate in this

case. As a national, federal permitting scheme it is par-

ticularly suited to balance and protect the competing

sovereign interests at stake here. As in cases of interstate

water pollution, the NPDES permitting process is the

appropriate place to account for the negative impact the

State’s action is having on the Miccosukee Tribe, a sepa-

rate sovereign entity. For instance, just as federal permit-

ting would take into account any other affected states’

standards in a similar situation, it can likewise take into

account the Tribe’s water quality standards. This Court

7

has confirmed that regulation of interstate water pollution

has always been a matter of federal law. The NPDES

permitting scheme merely formalizes what has always

been within the ambit of federal regulatory powers.

In addition, as a national, federal scheme, the NPDES

permitting process is best suited to address the issues of

environmental justice and protection of tribal trust assets

that are present here. Environmental protection at a

national level, such as that available under the Clean

Water Act’s NPDES permitting scheme, can help ensure

that the Miccosukee Tribe does not bear a disproportionate

share of the “costs” involved here. As it stands now, with-

out permitting, the Tribe is certainly bearing the brunt of

those costs. While the District may be saving time and

money by not obtaining a permit, the Tribe is suffering the

utter degradation of its homeland. Clearly, state regula-

tion is insufficient to protect the Tribe’s interests in this

regard as the State is unlikely to make decisions that

would raise its own costs. State regulation is likewise

insufficient as the State does not have the same fiduciary

responsibility to protect the Tribe’s trust assets that the

Federal Government does. All of these considerations are

consistent with the plain meaning of the Act.

The S-9 structure at issue here is a “point source”

requiring a permit under the most mundane interpreta-

tions of the Clean Water Act. The District is the responsi-

ble owner and manager of this facility, controls its destiny,

and is in the best position to improve its 1957-vintage

performance. None deny that the C-11 canal and its S-9

back-pump outlet releases substantial pollutants in huge

volumes into the pristine waters of the Everglades that is

the legally protected home of the Miccosukee Indian Tribe.

None deny that the waters pumped through the S-9

8

structure affect adversely the receiving waters, Indian

interests, and the Everglades National Park. See J. App.

150, 167-69.

Arguments to the contrary are out of touch with the

basic structure of the Clean Water Act. The District’s claim

that the Act excuses pollutants that “are merely passed

through”, see Pet’r Br. at 26-27, is repudiated by the

universal experience of publicly-owned treatment works

(POTWs). POTWs deal daily with the burden of treating,

managing, and controlling pollutants that enter their

systems, sometimes willy-nilly, from “indirect discharg-

ers,” both known and unknown. The United States as

Amicus proposes to excuse transfers of polluted navigable

waters “from one location to another.” U.S. Amicus Br. at

13. It offers this rash — and potentially destructive —

interpretation without a single word attempting to recon-

cile its reading with the strict statutory definitions of

“pollutant” and “point source” that plainly reach activities

that are dwarfed by the extravagant S-9 arrangement

defended here.

9

ARGUMENT

I. THE INTRODUCTION OF POLLUTED WATERS

BY ONE SOVEREIGN INTO THE WATERS OF

ANOTHER SOVEREIGN IS PROPERLY THE

SUBJECT OF FEDERAL REGULATION UNDER

THE CLEAN WATER ACT AND THUS NPDES

PERMITTING IS NECESSARY AND APPROPRI-

ATE AS THE DISCHARGE OF POLLUT-

ANTS BY FLORIDA ADVERSELY AFFECTS

INDIAN RIGHTS AND PROPERTY

The South Florida Water Management District (Dis-

trict) and several of its Amici argue that requiring a

National Pollution Discharge Elimination System

(NPDES) permit in the present situation would in some

way upset the balance of federal-state power over water

pollution regulation. They argue that the situation here is

one concerning “water management and allocation” and

that such a situation is one traditionally left to state

control. Pet’r Br. at 35. Quite the contrary is true. While

indeed, the Clean Water Act (CWA) envisions a partner-

ship between the State and the Federal Government, the

situation here is precisely the type that is meant to be

addressed by federal regulation.

Here, the discharge of pollutants by a governmental

entity of the State of Florida adversely is affecting the

rights and property of another sovereign entity, the Micco-

sukee Tribe. Inter-governmental pollution such as this is

traditionally regulated by the Federal Government, a fact

that is reaffirmed by the CWA.

Congress has broad powers to regulate “activities

causing air or water pollution, or other environmental

hazards that may have effects in more than one State.”

Hodel v. Virginia Surface Min. and Reclamation Ass’n,

10

Inc., 452 U.S. 264, 282 (1981). In the case of water pollu-

tion, the Court has repeatedly recognized that regulation

of interstate water pollution is “primarily a matter of

federal law.” Int'l Paper Co. v. Ouellette, 479 U.S. 481, 492

(1987); Arkansas v. Oklahoma, 503 U.S. 91 (1992). This

primacy of the federal government in the regulation of

interstate water pollution was solidified in the 1972

amendments to the Federal Water Pollution Control Act

and the creation of the NPDES, a federal permitting

program. Milwaukee v. Illinois, 451 U.S. 304, 310-11

(1981).

The NPDES permitting program covers situations

where effluent discharges from one state negatively

impact another state. In such situations:

the CWA carefully defines the role of both the

source and affected states, and specifically pro-

vides for a process whereby their interests will be

considered and balanced by the source state and

the EPA. This delineation of authority represents

Congress’ considered judgment as to the best

method of serving the public interest and recon-

ciling the often competing concerns of those af-

fected by the pollution.

Ouellette, 479 U.S. at 497. One way for the federal gov-

ernment to take the interests of an affected state into

consideration is to take the affected state’s water quality

standards into consideration and to condition issuance of

NPDES permits on compliance with such water quality

standards. Arkansas, 503 U.S. at 105-107. The same is

true for water quality standards set by an Indian tribe.

City of Albuquerque v. Browner, 97 F.3d 415, 423-24 (10th

Cir. 1996), cert. denied, 522 U.S. 965 (1997) (holding that

33 U.S.C. §§ 1341 and 1342 of the Clean Water Act give

11

the “EPA the authority to issue NPDES permits in compli-

ance with a tribe’s water quality standards”). The Clean

Water Act also directs the EPA Administrator to “consult

affected States sharing common water bodies and provide

a mechanism for the resolution of any unreasonable

consequences that may arise as a result of differing water

quality standards that may be set by States and Indian

tribes located on common bodies of water.” 33 U.S.C.

§ 1377(e).

Since the pollution discharges in this case by an agent

of the state of Florida are affecting the interests of another

sovereign, the Miccosukee Tribe, the situation is analogous

to interstate water pollution. Indeed, the analogy is

particularly apt here, as the Tribe is recognized as a

“State” under the Clean Water Act. See 33 U.S.C.

§ 1377(e).’

The gross water pollution descending the C-11 canal

and pouring through the S-9 pumping structure is regret-

tably suggestive of the cross-boundary delivery of sulfur

oxides in Georgia v. Tennessee Copper Co., 206 U.S. 230

(1907), the downstream release of sewage in Missouri v.

Illinois, 200 U.S. 496 (1906), and the cross-lake flow of

” The Clean Water Act authorizes the EPA Administrator to treat

tribes as states for purposes of the Act. Significantly, such treatment

affords tribes the ability to set water quality standards, and hence to

regulate their waters, in the same manner as states. Here, the Micco-

sukee Tribe has enacted such water quality standards. Miccosukee

Environmental Protection Code Subtitle B: Water Quality Standards

for Surface Waters of the Miccosukee Tribe of Indians of Florida

http://www.epa.gov/ost/standards/wqslibrary/tribes/fl_4_miccosukee. pdf

(visited Nov. 10, 2003); 66 Fed. Reg. 29951 (listing Miccosukee Water

Quality Standards as approved by the Environmental Protection Agency).

12

effluent in Milwaukee v. Illinois, 451 U.S. 304 (1981).

When this Court saw fit to preempt the interstate common

law of nuisance with the comprehensive Clean Water Act

in Milwaukee v. Illinois, it was not envisaging “opt-outs” of

the dimensions attempted by the District here. As NPDES

permitting is the appropriate tool for states to rely on

where they are being affected by another state’s pollution

discharges, so too is it the appropriate tool in this situa-

tion.

II. CONSIDERATIONS OF ENVIRONMENTAL JUS-

TICE REINFORCE THE CONCLUSION THAT

THE NPDES PERMIT PROVISIONS SHOULD BE

APPLIED TO PROTECT TRIBAL LANDS

The environmental justice movement had its origins

in 1982 in one of North Carolina’s poorest counties “when

local officials decided to locate a PCB landfill in a pre-

dominately African-American neighborhood.” R.V. Per-

cival, et al., Environmental Regulation: Law, Science, and

Policy 446 (2d ed. 1996); See Richard J. Lazarus, Fairness

in Environmental Law, 27 Envtl. L. Rep. 705 (1997);

ROBERT D. BULLARD, DUMPING ON DIXIE: RACE, CLASS, AND

ENVIRONMENTAL QUALITY (1990). At a minimum, environ-

mental justice has come to mean:

The fair treatment of people of all races, cultures,

incomes, and educational levels with respect to

the development and enforcement of environ-

mental laws, regulations, and policies. Fair

treatment implies that no population should be

forced to shoulder a dispropurtionate share of ex-

posure to negative effects of pollution due to lack

of political or economic strength.

13

Robert R. Kuehn, A Taxonomy of Environmental Justice,

30 Envtl. L. Rep. 10681 (2000) (quoting the “standard

definition” developed in 1998 by EPA’s Office of Environ-

mental Justice), quoted in C. RECHTSCHAFFEN & E. GAUNA,

ENVIRONMENTAL JUSTICE: LAW, POLICY & REGULATION 6, 7

(2002). .

Environmental Justice considerations have a special

force in Indian country. See Dean B. Suagee, The Indian

Country Environmental Justice Clinic: From Vision to

Reality, 23 Vt. L. Rev. 567 (1999). As articulated by Profes-

sor Judith Royster: *

Indian tribes connect to their lands not only on

economic and emotional levels, but also on the

levels of culture, religion, and sovereignty. Envi-

ronmental degradation may, for example, affect

land that is sacred to tribes, or pose a threat to

the entire territory in which the tribe as govern-

ment operates. And for Native American tribes,

land is not fungible. Most tribes today occupy

reservations carved out of their aboriginal terri-

tory, lands that the tribes occupied before white ~——

contact. The reservations are ‘place’: a homeland,

a source of physical subsistence and spiritual

sustenance. The loss of place may impact the

identity and destiny of the tribe itself.

THE LAW OF ENVIRONMENTAL JUSTICE: THEORIES AND

PROCEDURES TO ADDRESS DISPROPORTIONATE RISKS 157-58

(Michael B. Gerrard ed. 1999).

Here, the Miccosukee Tribe is being disproportionately

burdened by the discharge of pollutants into its homeland.

While S-9 is clearly protecting the people who live along

Florida’s lower east coast from flooding, and is ensuring

14

them a stable water supply, see Pet. Br. at 12, it is deci-

mating the homeland and cultural existence of the Micco-

sukee Tribe. While, as several of the District’s Amici

allege, enforcing the permitting scheme here would entail

certain expense, the enormous cost currently being suf-

fered by the Tribe cannot be overlooked. Under the

NPDES permitting scheme, principles of environmental

justice can be taken into consideration. In fact, as declared

by Executive Order, these principles must be taken into

consideration by the Federal Government. Exec. Order No.

12,898, Federal Actions to Address Environmental Justice

in Minority Populations and Low-Income Populations, 59

Fed. Reg. 7629 (1994). The Executive Order states:

To the greatest extent practicable and permitted

by law ... each Federal agency shall make

achieving environmental justice part of its mis-

sion by identifying and addressing, as appropri-

ate, disproportionately high and adverse human

health or environmental effects of its programs,

policies, and activities on minority populations

and low-income populations in the United States

59 Fed. Reg. 7629.

Permitting under the federal NPDES scheme would

also appropriately take into consideration the impacts on

the tribal trust assets implicated here. Under the federal

trust responsibility the United States and its officers are

expected to meet exacting fiduciary standards in carrying

out responsibilities affecting Indian tribes and treaty

rights. Seminole Nation v. United States, 316 U.S. 286,

296-97 (1942). The interests being threatened here,

including the threat to the Miccosukee Tribe’s homeland,

sovereignty, economic integrity, resources, and its right to

15

conduct its religious and cultural practices, are precisely

the interests the United States is duty-bound to protect.

See, e.g., Oneida Indian Nation v. County of Oneida, 414 -

U.S. 661, 667 (1974); Mescalero Apache Tribe v. Jones, 411

U.S. 145, 152 (1973); New Mexico v. Mescalero Apache

Tribe, 462 U.S. 324, 335 n.17 (1983); Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). In the

Water Resources Development Act of 2000, Pub. L. No.

106-541, 114 Stat. 2572, Congress demonstrated its

awareness of the importance of tribal interests in the

Everglades when it provided that in exercising federal

authority the Secretary of the Interior shall “fulfill his

obligations to the Indian tribes in South Florida under the

Indian trust doctrine as well as other legal obligations.”

Id. § 601(h)(2)(C). See also Blue Legs v. United States, 867

F.2d 1094, 1100, 1101 (8th Cir. 1989) (federal government’s

duty to the tribe under environmental statutes “is but-

tressed by the existence of the general trust relationship”

and that “Congress intended that the obligations of BIA

and IHS under the RCRA to be exercised consistent with

their trust obligation.”).

Environmental justice and trust considerations are

consistent with the plain reading of the Clean Water Act’s

point source provisions. A contrary reading allows the

District to treat the area of the Everglades most critical to

the Miccosukee Tribe as a filter for polluted waters dis-

charged by the S-9 pump.

Ill, THE S-9 STRUCTURE AT ISSUE HERE IS A

POINT SOURCE UNDER SETTLED PROVI-

SIONS OF THE CLEAN WATER ACT

Congress’ definition of a “point source,” powerful in its

simplicity, is “any pipe, ditch, channel, tunnel, ... from

16

which pollutants are or may be discharged.” 33 U.S.C.

§ 1362(14). The S-9 structure so obviously features “pipes,

“ditches,” “channels,” and “tunnels” from which “pollut-

ants” are liberally spewed that feats of imaginative inter-

pretation would be required to exclude it from this

definition. This is not a case of a far-fetched interpretation

of point source. As this Court has held, the definition of

point source already includes U.S. naval warplanes drop-

ping ordinance in the waters of Puerto Rico, Weinberger v.

Romero-Barcelo, 456 US. 305 (1982), and a sewage treat-

ment plant fed by storm sewers and featuring system

“overflow” points known as combined sewer overflows

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

The S-9 pump is a “point source” with- structure,

purpose, and function so plainly within the Congressional

design that the District conceded that S-9 was a statutory

“point source.” Despite this concession, the District

attempts to avoid the point source characterization by

arguing that it is not a conveyance “from which pollutants

are or may be discharged,” in order to escape the require-

ment of obtaining an NPDES permit for S-9. The District

insists that a “discharge” occurs “when the pollutant

originates from the point source, not when the pollutants

are merely passed through.” Pet’r Br. at 26-27. The United

. ief of lant South Florida Water Managemen‘ District

at 8, paby tiny Wer Mgmt. Dist. v. Miccosukee Tribe, 280 F.3d

1364 (11th Cir. 2002) (No. 00-15703-CC), which states :

There is no dispute that the S-9 pumping station is a ‘point

source,’ that the waters passing through it contain low lev-

els of pollutants, and that those waters constitute navigable

waters for purposes of the CWA.

17

States as Amicus Curiae repeats the District’s error.’ The

United States argues that the S-9 structure “merely

conveys” pollutants, and hence, claims that there is no

“addition.” See U.S. Amicus Br. at 10, 12. It argues that

the pumping station “merely transports [polluted] naviga-

ble waters from one location to another.” Jd. at 13. These

arguments are unavailing and unworkable.

First, the definition of point source clearly includes

structures that merely convey — i.e. “any discernible,

confined, and discrete conveyance.” 33 U.S.C. § 1362(14).

For example, storm sewers, which the S-9 facility very

closely resembles, and which are customarily point

sources, merely “convey.”” Indeed, the whole panoply of

* In its Amicus brief, the United States states the Ques\.on

Presented as follows:

“Whether petitioner’s longstanding practice of pumping ac-

cumulated water from a weter collection canal to a water

conservation area within the Florida Everglades constitutes

an addition of a pollutant from a point source for purposes

of Section 402 of the Clean Water Act, 33 U.S C. § 1342,

where the water contains a pollutant, but the pumping sta-

tion itself adds no pollutants to the water being pumped.”

U.S. Amicus Br. at 1.

” The S-9 structure at issue here compares most closely to a storm

sewer. A storm sewer is a conveyance for conducting pollutants from roads,

construction sites, and farms into the navigable waters. The storm sewer is

a classical point source. See WILLIAM H. RODGERS, JR, ENVIRONMENTAL

Law: AIR & WATER POLLUTION Vol. 2 § 4.10 at 157-62 (1986). See also 33

U.S.C. § 1342 (pX2XE) (stating that while permits are generally not

required for discharges “composed entirely” of stormwater, they are

required for discharges that violate water quality standards, or are

significant contributors of pollutants to waters of the United States; both

conditions are satisfied here). As a result of the Water Quality Act of 1987

and a 13-years-in-the-making “Phase 2” storm water rule, all discharges

from small municipal storm sewer systems and from 1- to 5-acre construc-

tion sites are now within the NPDES permit program. For background,

(Continued on following page)

18

run-of-the-mill point sources (trucks, helicopters, earth-

moving equipment, etc.) are merely pass-through devices

that do not physically generate the pollutants they carry

to the water. The definition of point source also includes

the clause “from which pollutants are or may be dis-

charged.” A discharge means “any addition of ong 4

ant to navigable waters from any point source. 33 U.S.C.

§ 1362(12)(A).

Exempting point sources under a “pass —,

theory would violate the plain language of the Act. :

would remove already polluted water from the category 0

“pollutant,” a result which the Act does not contemplate.

33 U.S.C. § 1362(6) (defining “pollutant”). Such a result

would excuse transfers of polluted waters from point A to

point B where biological effects can be magnified many

times. It would close the door on NPDES applications to

water movements — uncontrolled ballast comes to mind ,

that is the source of the spread of exotic species an

considerable ecological damage throughout the United

States, including the Everglades.” It would make all the

special corners and pockets and treasures of US. waters

vulnerable to a creeping, degraded sameness if foul water

is brought in from somewhere else.

405 (9th Cir.

ironmental Defense Center v. EPA, 319 F.3d 398,

abaeanive that the “foremost cause” of impaired ocean —

is urban runoff; upholding stormwater rules). The only vr

difference between the S-9 structure and the hundreds bg

municipal storm sewers is the enormous size and volume 0:

structure.

" An exotic is a nonindigenous species. See Kim TODD, TINKERING

WITH EDEN: A NATURAL HISTORY OF EXOTICS IN AMERICA (2001).

IP RE RR: Valter Ge te

wt ieee &

19

Petitioners, and the United States as Amicus, incor-

rectly characterize this case as a water transfer case

similar to Catskill Mountains Chapter of Trout Unlimited,

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

is not a water supply case where drinking water is

whisked about within one or more systems. This is not

drinking water with trace pollutants; it is disposal water

with gross pollutants. It is a pollution disposal case. The

South Florida Water Management District directs a river

of pollution (with flows up to 950 cfs) onto public and

Indian properties of unique ecological value. The situation

is also unlike that in National Wildlife Fed’n v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982), which explores whether

dams are point sources. The status of dams as point

sources is not presented by this case. Typically, a dam is a

passive structure that interdicts flows with consequent

biological effects. The S-9 structure is not a dam but a

pump. It is not passive but active. It does not block water

but moves it.

The Eleventh Circuit correctly stressed that “an

addition from a point source occurs if a point source is the

cause-in-fact of the release of pollutants into navigable

waters.” 280 F.3d at 1368; See also WILLIAM H. RODGERS,

JR., ENVIRONMENTAL LAW: AIR & WATER POLLUTION, Vol. 2,

§ 4.10 at 158 (1986) hereinafter Rodgers (stating that,

“The statutory condition that a pollutant be ‘added’ to the

stream is met if the source is the cause of the appearance

of the pollutant regardless of the mechanism”). The S-9

structure is a back-pumping operation. Energy is applied

to move this water — and the pollutants within it — into the

backyard of the Miccosukee Indian Tribe. The District

operates this pumping station and the discharges of

pollutants from it. The “pollution” from this activity occurs

20

on its watch and within its jurisdiction. The District’s

assertion that S-9 is a mere conduit, an inanimate part of

the piping, a stoic victim of problems from somewhere else

and responsible for none of them, smacks of blaming the

pump for human action and must be rejected.

In addition to the plain language of the Clean Water

Act, other factors indicate S-9 is a point source subject to

NPDES permitting. The ample case law exploring the

contours of “point source” in the lower federal courts,

indicate that a test of “controllability” best explains the

distinction between “point sources” that need NPDES

permits and nonpoint sources that do not. See Rodgers at

150-62. Here, the District is the responsible owner and

manager of the S-9 structure, a situation found determina-

tive for owners of other point source structures subject to

NPDES permitting. See, e.g., the owner of the dairy farm

with its waste storage ponds, spray guns, and trucks in

Community Ass’n for Restoration of the Environment

(CARE) v. Henry Bosma Dairy, 65 F. Supp. 2d 1129 (E.D.

Wash. 1999), the owner of the waste rock piles at the

molybdenum mine in Amigos Bravos v. EPA, 324 F.3d 1166

(10th Cir. 2003), the owner of the storage bin with “spent

mushroom substrate” releasing a “black oil-like” leachate

into the water in Reynolds v. Rick’s Mushroom Service,

Inc., 246 F. Supp. 2d 449 (E.D. Pa. 2003), the owner of the

abandoned mine (with ditches, pipes, channels, and

gullies) in Comm. to Save Mokelumne River v. East Bay

Municipal Utility Dist., 13 F.3d 305 (9th Cir. 1993), cert.

denied, 513 U.S. 873 (1994), the owner of the net pen

salmon farms in United States Public Interest Research

Group v. Atlantic Salmon of Maine, LLC, 257 F. Supp. 2d

407 (D. Me. 2003) (escaping “non-North American strains

of Atlantic salmon” are the “pollutants”), the owner of the

en eee .

21

groundwater pumps that release their “salty” byproduct

into the Tongue River in Northern Plains Resource Council

v. Fidelity Exploration & Dev. Co., 325 F.3d 1155 (9th Cir.

2003), cert. denied, ___ U.S. __, 72 USLW 3148 (Oct. 20,

2003), and the owner of the chicken farms whose pollution

wended its way into the drinking water of the City of

Tulsa. City of Tulsa v. Tyson Foods, Inc., 258 F. Supp. 2d

1263 (N.D. Okla. 2003). Like with these examples, the

District here has an active and affirmative hand in direct-

ing the delivery of pollutants into the Everglades and into

the “Indian country” protected there. The South Florida

Water Management District, like the owners in the cited

examples, must obtain an NPDES permit to operate S-9.

+

22

CONCLUSION

For the reasons stated above, the judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,

TRACY A. LABIN*

NATIVE AMERICAN RIGHTS FUND

1712 N St., NW

Washington, DC 20036

(202) 785-4166

ROBERT T. ANDERSON, ESQUIRE

DIRECTOR, NATIVE AMERICAN

LAW CENTER

UNIVERSITY OF WASHINGTON

SCHOOL OF LAW

William H. Gates Hall, Box 353020

Seattle, Washington 98195-3020

(206) 685-2861

WILLIAM H. RODGERS, JR., ESQUIRE

STIMSON BULLITT PROFESSOR

OF ENVIRONMENTAL LAW

UNIVERSITY OF WASHINGTON

SCHOOL OF LAW

William H. Gates Hall, Box 353020

Seattle, Washington 98195-3020

(206) 543-5182

*Counsel of Record for all Amici