Amicus Curiae Brief — SD Warren Co. v. Maine Bd. of Environmental Protection

“Supreme Court. U.S.

FILED

(13) =| san am

No. 04-1527 OFFICE OF THE CLERK

Iu the Supreme Court of the United States

S.D. WARREN COMPANY,

Petitioner

v.

MAINE DEPARTMENT OF

ENVIRONMENTAL PROTECTION

Respondent

ON WRIT OF CERTCIORARI TO THE

MAINE SUPREME JUDICIAL COURT

BRIEF AMICI CURIAE OF THE FRIENDS

OF THE EVERGLADES IN SUPPORT

OF THE RESPONDENTS

John E. Childe

606 Pine Road

Palmyra, Pa. 17078

(717) 520-1510

Counsel of Record for

Amici Curiae

Friends of the Everglades

AMERICAN FINANCIAL PRINTERS ® (202) 464-5500

QUESTION PRESENTED

Whether a state has conditioning authority pursuant to

section 401 of the Clean Water Act, 33 U.S.C. § 1341, for the

relicensing of a hydroelectric dam, the operation of which

involves the discharge of water back into the river after it has

passed through the turbines and other dam structures, and

results in continuing negative impacts to the water quality of

the river?

il

TABLE OF CONTENTS

Page

QUESITON PRESENTED. ....0..cccevccvecs i

I ee il

pro se Fs, eee iv

INTERESTS OF AMICUS CURIAE. ........... 1

SUMMARY OF ARGUMENT. .............. 3

is wr ed Oe a Bee ee ee hk ke 7

A. The Supreme Court Opinion In South Florida Water

Management District v. Miccosukee Tribe of Indians

Did Not Hold That There Is No Addition Of Pollution

From One Water Body To Another If There Is No

Meaningful Distinction Between The Two Water

a rane es ear ee ae 7

B. Section 304(f)(2)(F) Of The Clean Water Act Is Not An

Exemption For Movement Though Dams As Nonpoint

Rc cece set Se Ea ee wR wen 10

c. The Inquiry Must Be Whether There Is A Discharge Of

PS cn ease WO SC ae eee Eo 12

D. The September 15, 2005 EPA Interpretation Merits No

Nb + oh OEE Oe Oe ee Oe 14

E. Nonpoint Sources Are Not Exempt From Point Source

cg, ee ere eee 20

F.

ili

There is No Distinction Between Pollution And

OER TEE eas emery em Pa ra ee 23

iv

TABLE OF CITATIONS

CASES: PAGE

Chevron v. Natural Resources Defense Council, Inc.

G07 Ui Gee ee 6k cae Cee ais 14,15

Consumer prod. Safety Comm'n v. GTE Slyvania, Inc.

ee ae 15

Edward Christensen, et. at., v. Harris County, et. al

529 U.S. 576, 582-83 (2000)... 2... we te 17

EPA v. California ex rel. State Water Resources Control Board

(EPA v. California)

Se Sa PPE s 40s 6-00 ere ore 18

Friends of Everglades v. South Florida Water Management

District

Southern District of Florida, District Court Case

PEP GEOS 5-6 60 6 6 8 eee es 6

Hodel v. Virginia Surface Mining & Reclaimation Assn., Inc

G52 UB. BO9, MeO CFSE) oc we eee teses 21

Milwaukee v. Illinios

Gee Wa Os» a-0 6 6 oe ees 18, 21

Nat'l Wildlife Fed'n v. Consumers Power Co.

862 F.2d 580 (6th Cir. 1988) ............ 10

Nat'l Wildlife Fed'n v Gorsuch

693 F.2d 156 (D.C. Cir. 1982).......... 9,10

Oil, Chemical 7 Atomic Workers Int'l v. RMI Taitanium Co.

199 F.3d 881, 894 (6th Cir. 2000)... ...... 23

PUD No. | of Jefferson County et al. Washington Department

of Ecology et. al.

DE Psd cecesececeves 21

Robinson v. Shell Oil Co.

519 U.S. 337, 340 (1997)... .. fo 15

Skidmore v. Swift & Co.

C~~~—Eh<: «cue eeeesee 14, 15

South Florida Management District v. Miccosukee Tribe of

Indians

EY ne es oe 6 ko 608 passim

United States v. Heirs of Boisdore

ES i. "hss on 6 6 6 5 06.6 0 12

United States v. Earth Sciences, Inc.

599 F.2d 368, 373 (10th Cir. 1979)... ..... 22

U.S. v. Mead Corp.

ee 14

STATUTES:

Clean Water Act

33 U.S.C. Section 1251 (a). .......... 16, 23

33 U.S.C. Section i311 (a). .......... 3,.16

Ed | 1,3,7

a La?

vi

33 U.S.C. Section 1362........... _ passim

CODE OF FEDERAL REGULATIONS:

NN ia i ds sc kc

40 CFR 122.26 (a)(1)(ii), (b\14Miii). 2. 12

40 CFR 122.26 (a9Mi). . ee ee eee ll

40 CFR 122.34 (bi)... 2... eee eee d2

- INTERESTS OF AMICUS CURIAE

Amicus Curiae Friends of the Everglades (“Friends”)

respectfully submits this brief supporting the findings below

upholding the State of Maine’s determination to issue water

quality certification conditions on the relicensing of the

hydropower dams owned and operated by S.D. Warren on the

grounds that releases of water from the dams into the

Presumpscot River constitute “any discharge,” whether or not

the releases meet the definition of “discharge of pollutants”.

Amicus Curiae Friends of the Everglades is a non-profit

association whose members’ interests are in the protection and

enhancement of the Natural Everglades ecosystem, a vast

marshland which covers much of South Florida. It begins in the

Kissimmee River watershed and flows through Lake

Okeechobee and the Everglades, including the Loxahatchee

National Wildlife Refuge and the Everglades National Park,

and ends at Florida Bay.

Amicus Curiae has a significant stake in this Court’s

determination of the issues raised by the Petitioner in its Brief

submitted to this Court. Petitioner argues that the test to

determine whether the Federal Clean Water Act (“CWA”)

requires a Certification under section 401 of the Act, 33 U.S.C.

§ 1341, is the same test as is required under the Act to

determine whether a permit is required to discharge pollutants

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

Petitioner then alleges that the findings below are contrary this

Court’s findings in South Florida Water Management D’ trict

v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).

Amicus Curiae Friends of the Everglades were Co-

respondents before this Court in Miccosukee. The case was

remanded by this Court, and is currently in the District Court

for the Southern District of Florida under the mandate of this

2

Court to make a factual determination as to whether there is no

meaningful distinction between the natura! Everglades area and

the C-11 drainage basin from which polluted water is

discharged by the S-9 pump station into the Everglades. A

ruling by this Court in favor of Petitioner’s argument could

significantly effect the interests of Amicus in the Miccosukee

case.

Both the Petitioner and the Respondent have consented

to the filing of this Amicus CuriaeBrief.

3

SUMMARY OF ARGUMENT

The principle issue raised by the Petitioner in the case

before this Court is if the State of Maine can impose conditions

on recertification of discharges from several dams owned and

operated by S.D. Warren Company on the Presumpscot River

under section 401 of the Federal Clean Water Act (“CWA”), 33

U.S.C. § 1341. In support of its position that the Maine

decision was inappropriate, the Petitioner relies on this Court’s

recent decision in South Florida Water Management District

v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004); as weil as

Environmental Protection Agency’s (“EPA”) recent

Interpretation of the Clean Water Act of August 5, 2005, both

of which deal with the authority to issue permits under section

402 of the Act, 33 U.S.C. § 1342. These are National Pollutant

Discharge Elimination System (“NPDES”) permits. Petitioner

also asserts the relevance of section 304(f)(2)(F) of the CWA,

33 U.S.C. § 1314(f)(2\F), as support for the argument that

dams, such as the petitioner owns, are nonpoint sources of

pollutants rather than point sources, which are 2xempted under

section 402 NPDES permit requirements.

Petitioner asserts that the section 402 arguments are

relevant in an inquiry of the appropriateness of a section

401Certification requirement because the requirement to

determine if there is “any discharge” under section 401(a) is

the same as the requirement to determine if there is a

“discharge of pollutants” under section 301(a) of the Act, 33

U.S.C. § 131 1(a), that would then require an NPDES permit

under section 402.

The Amicus Curiae Friends of the Everglades will not

address the issue of whether section 401 Certification and

section 402 Permitting should be required to meet the same test

of whether there is a discharge of pollutants. Instead, the

Friends of the Everglades will address the issues of whether

this Court’s determination in Miccosukee is correctly stated by

the Petitioner and is relevant to this case; whether the

Petitioner’s reliance on section 304(f)(2)(F) is appropriate; and

whether the EPA Interpretation cited by Petitioner is

supportable.

The Petitioner cites the decision of this Court in

Miccosukee as holding that the question of whether a NPDES

permit is required turns on whether the waters being discharged

to are meaningfully distinct from the waters discharged from.

(Pet. Br. at 21). It is the belief of Amicus Curiae that this Court

in Miccosukee made no such finding. The case was remanded

below with this Court’s mandate to resolve a factual dispute

raised by the South Florida Water Management District

(“WMD”). This Court specifically reserved making any

decision in Miccosukee on the meaning of “discharge of

pollutants” determined by the District Court or the Eleventh

Circuit Decision until the Courts below complied with the

mandate to reopen the record to resolve the factual dispute.

The often repeated test which Congress imposed by

definition to determine what “discharge of a pollutant” means

is, “any addition of any pollutant to navigable waters from any

point source.” 33 U.S.C. § 1362(12). There is no exemption

under this test for a discharge within the same water body.

The first part of this test Congress imposed is to

determine whether a pollutant is being added to a navigable

water. So the inquiry must begin with evaluating the receiving

body of water to determine if a pollutant is being added.

Congress limits the inquiry as to where the pollutants came

from to whether the pollutants are discharged “from a point

source,” not from where the pollutants originated. This court

made this clear in Miccosukee when it determined that the

NPDES program is not limited to when a point source is the

originator of the pollutants being discharged, but also includes

when pollutants originating elsewhere merely pass through the

point source. The point source “need only convey the pollutant

to ‘navigable waters’ which are, in turn, defined as ‘the waters

of the United States.”” Miccosukee, 541 U.S. at 105.

At the conclusion of Miccosukee, this Court speculated

that “it is possible that the District Court will conclude that C-

11 and WCA-3 are not meaningfully distinct water bodies. If

it does so, then the S-9 pump station will not need an NPDES

permit.” Id. at 112. This statement is not a new legal standard

5

enunciated by this Court as to when an “addition of a

pollutant” does or does not occur that would result in the need

for an NPDES permit. The only support for the statement that

the S-9 would not need an NPDES permit if the WCA-3 is not

meaningfully distinct from the C-11 drainage basin is the

Court’s previous statement in Miccosukee that, “The Tribe

(meaning both the Tribe and Friends of the Everglades), does

not dispute that if C-11 and WCA-3 are simply two parts of

the same water body, pumping from one into the other cannot

constitute an “addition of pollutants.” Id. at 109.

When Miccosukee was released the Tribe filed a

Petition For Rehearing for the limited purpose of correcting the

above cited statements. The briefs of both Respondents Tribe

and Friends were cited, as well as excerpts of the transcript of

the Oral Argument, to support the fact that both parties had

argued that a discharge from one part of a water body to

another part of that same water body could require a NPDES

permit. (Friends App. at pp. !-8).

Petitioner S.D. Warren’s reliance on_ section

304(f)(2)(F), 33 U.S.C. § 1314(f)(2)(F), as support for the

argument that a dam discharge is a nonpoint source discharge,

and therefore not subject to the requirement for a NPDES

permit is based on a basic misunderstanding of the section.

Through section 304(f) of the CWA, Congress required

EPA to consult with federal and state agencies in order to

develop and issue information including for two numerically

designated purposes. The first, section 304(f)(1), 33 U.S.C. §

1314(f){1), is to establish guidelines for identifying and

evaluating the nature and extent of nonpoint sources of

pollutants. The second, section 304(f)(2), 33 U.S.C. §

1314(f)(2), is to develop information on processes, procedures,

and methods to control pollution resulting from six different

sources, listed as (A) through (F).

Section 304(f)(2)(F), which is what Petitioner relies on,

is “changes in the movement, flow, or circulation of any

navigable waters or ground waters, including changes caused

by the construction of dams, levees, channels, causeways, or

flow diversion facilities.” These activities are not nonpoint

6

sources, as identified in section 304(f)(1), but are other sources

of pollution. EPA currently regulates three of those other

sources, sections 304(f)(2)(A), (B) and (C) under section 402

NPDES permits.

The terms of section 304 (f)(2)(F) and the definition of

“point source” are quite similar. The basic difference between

these two provisions of the CWA is the phrase in the definition

of “point source” that states, “from which pollutants are or may

be discharged.” 33 U.S.C. § 1362(14). The only way to

determine if an activity that could be either a “change in

movement, flow, or circulation of any navigable water...”

under section 304(f)(2)(F), or a point source discharge as

defined in section 502(14), 33 U.S.C. § 1362(14), is to

determine if there is or might be a discharge of pollutants

as a result of that discharge activity into our nation’s waters.

The EPA Interpretation cited by and relied on by the

Petitioner, at page 22 of its Brief, was introduced by EPA on

August 5, 2005, as an Exhibit in support of its Motion For

Summary Judgment as to Intervenor Defendant in the case of

Friends of the Everglades v. South Florida Water Management

District, Case No.02-80309, Southern District of Florida. (EPA

Interpretation Memorandum).

Because there are material facts in dispute, the Judge in

the Friends of the Everglades case has denied all parties’

motions for summary judgment, and has ordered trial to

commence on January 9, 2006.

7

ARGUMENT

A. The Supreme Court Opinion In South Florida Water

Management District v. Miccosukee Tribe of Indians

Did Not Hold That There Is No Addition Of

Pollution From One Water Body To Another If

There Is No Meaningful Distinction Between The

Two Water Bodies.

The Petitioner S.D. Warren Company, at page 21 of its

memorandum submitted to the Court, attempts to argue that

this Court’s Opinion in Miccosukee, holds that the definitional

requirement that there must be an “addition of pollutants” turns

on whether the water being discharged from is or is not

“meaningfully distinct” from the water being discharged into.

541 U.S. 95 (2004).'

It is the belief of Amicus Curiae that this Court in

Miccosukee made no such finding. The case was remanded

with this Court’s mandate to resolve a factual dispute raised by

the South Florida Water Management District. The District

alleged that there is no meaningful distinction between the

water being discharged into, the Everglades area known as

Water Conservation Area 3-A (WCA-3), and the water being

discharged from by the S-9 pump station, the drainage canal

known as the C-11! Canal, and they are thus essentially one

water body.

This Court determined that the factual dispute in

Miccosukee made the District Court’s summary judgment

' This Court in Miccosukee ¢d not address the meaning of “any

discharge” in section 401 of the Clean Water Act, 33 U.S.C. §1341, to

determine if a certification is required. In Miccosukee the question was

whether a National Pollution Discharge Elimination System (NPDES)

permit under section 402 of the Clean Water Act (“CWA”), 33 U.S.C.§

1342, is required. A permit under section 402 requires the determination that

there is a “discharge of any pollutant by any person,” as required by section

301(a), 33 U.S.C. §1362(12). These are two different tests, as are the

purposes between sections 401 and 402 of the CWA.

8

premature. This Court specifically reserved making any

decision in Miccosukee on the legal issue of the meaning of the

term “any addition of any pollutant” until the courts below

complied with the mandate to reopen the record to resolve the

factual dispute. 541 U.S. at 103.

At the conclusion of Miccosukee this Court speculated

that “it is possible that the District Court will conclude that C-

11 and WCA-3 are not meaningfully distinct. If it does so, then

the S-9 pump station will not need an NPDES permit.” Id. at

112. This statement is not a new legal standard enunciated by

this Court as to when an “addition of a pollutant” occurs that

would require an NPDES permit.

The only support for the statement that the S-9 would

not need an NPDES permit if the WCA-3 is not meaningfully

distinct from the C-11 drainage basin is the Court’s previous

statement in Miccosukee that, “The Tribe (meaning both the

Tribe and Friends of the Everglades), does not dispute that if C-

11 and WCA-3 are simply two parts of the same water body,

pumping from one into the other cannot constitute an “addition

of pollutants.” /d. at 109.

When the Miccosukee Opinion was released the Tribe

filed a Petition For Rehearing, with the consent of the Friends

of the Everglades, for the limited purpose of correcting the

above cited statements. The briefs of both Respondents Tribe

and Friends were cited, as well as excerpts of the transcript of

the Oral Argument, to support the fact that both parties had

argued that a discharge from one part of a water body to

another part of that same water body could require an NPDES

permit.’ (Friends App. at pp. 1-8).

> Several examples illustrate the problem with suggesting that a

discharge within the same water body could not constitute an addition of

pollutants. In a lake there are deep parts usually in the center where

sediments settle, and there are often shallow areas around the edge of the

lake, that have different plant and aquatic life. If the sediments from the

middle of the lake were pumped through a pipe to the shallow areas of the

lake where grasses grow those shallows areas would be severely harmed by

the sediment, which is a pollutant. Also, in many streams and rivers there

can be different areas that have different characteristics of chemistry,

9

It is clear from the arguments raised by the Petitioner in this

case that the misconceptions of the Court Opinion raised in the

Petition for Rehearing in the Miccosukee case are causing

confusion in the courts below.

The purpose of the South Florida Water Management

District’s use of the term “not meaningfully distinct” was to

argue that there could be no “addition of any pollutant” from

one body of water, the Everglades, to the other, the C-11

drainage basin, if they were significantly similar enough to be

considered one water body.

The often repeated test, which Congress imposed by

definition, to determine what “discharge of a pollutant” means

is, “any addition of any pollutant to navigable waters from any

point source.” 33 U.S.C. § 1362(12). There is no exemption

under this test for a discharge within the same water body.

The first part of this test Congress imposed is to

determine whether a pollutant is being added to a navigable

water. So the inquiry must begin with evaluating the receiving

body of water to determine if a pollutant is being added.

Congress limits the inquiry as to where the pollutants came

from to whether the pollutants are discharged “from a point

source,” not from where the pollutants originated. This

Court made this clear in Miccosukee when it was determined

that the NPDES program is not limited to when a point source

is the originator of the pollutants being discharged, but also

includes when pollutants originating elsewhere merely pass

through the point source. The point source “need only convey

the pollutant to ‘navigable waters,’ which are, in turn, defined

as ‘the waters of the United States.’” Miccosukee, 541 U.S. at

105.

The “not meaningfully distinct water body” argument

as raised by the South Florida Water Management District in

Miccosukee was an attempt to tie in the facts of the case with

the often cited “dam” cases, Nat'/ Wildlife Fed’n v. Gorsuch,

temperature, depth, plant and other aquatic life, to the point where the

discharge of water from onc part to the other could cause harm.

10

693 F.2d 156 (D.C. Cir. 1982); and Nat’! Wildlife Fed'n v.

Consumers Power Co., 862 F.2d 580 (6" Cir. 1988), which

held, based on EPA Opinions, that a dam, which is a point

source, does not add any pollutants to a water body if the

pollutants are already in that same water body. The District

argued that the C-11 Canal and the Everglades area known as

WCA-3 are hydrologically indistinguishable parts of a single

water body. (Pet. Br. at 48).

In the “dam” cases, Gorsuch and Consumers Power,

EPA took the position that under section 304(f)(2)(F) of the

Act, 33 U.S.C. § 1314(f(2)(F), discharges from dams are

exempt from NPDES permits as nonpoint sources under the

language of section 304(f)(2)(F) of the Act, 33 U.S.C. §

1314(f(2)(F) . Gorsuch, 693 F.2d at 169. Further, the EPA

took the very narrow view that the definition of pollutants

under the Act was limited to the specific terms within the

definition at section 502(6), 33 U.S.C. § 1362(6), and did not

include such things as low dissolved oxygen, changes in

temperature and supersaturation, arguing that these changes

were water “conditions” not substances. Id. at 171. And finally,

EPA took the position that an addition of a pollutant from a

point source occurs only if the point source itself introduces a

pollutant into water from the outside world. /d.

at 175. In both of these cases the Circuit Courts relied heavily

on the EPA Opinions, based on the concept of deference, and

found that the dam discharges in question did not need to have

an NPDES permit.

B. Section 304(f)(2)(F) Is Not An Exemption For

Nonpoint Sources.

Through section 304(f) of the CWA, Congress required

EPA to consult with federal and state agencies in order to

develop and issue information including for two numerically

designated purposes. The first, section 304(f)(1), is to establish

guidelines for identifying and evaluating the nature and extent

of nonpoint sources of pollutants. The second, section

304(f)(2), is to develop information on processes, procedures

11

and methods to control pollution resulting from six different

sources, listed as (A) through (F). Section 304(f)(1) of the

CWA deals with nonpoint sources, not section 304(f)(2).

The EPA and the Courts in the “Dam” cases assume

that discharges from dams within the same water body should

be treated as a nonpoint sources based on the terms of section

304(f)(2)(F). There are two serious misinterpretations of

section 304(f)(2)(F) in attempting to use this to provide a new

exemption under the Act for nonpoint sources.

First, they read section 304(f)(2)(F) as dealing with

nonpoint sources of pollution. Section 304(f) requires EPA to

identify and evaluate and develop guidelines for two concerns:

“(1). . . the nature and extent of nonpoint

sources of pollutants, and (2) processes,

procedures and methods to control pollution

resulting from, (subsections (A) through (F)).”

The listed activities in subsections (A) through

(F) of 304(f)(2) are not listed under nonpoint

sources of pollutants in section 304(f)(1), but as

a separate category of sources of pollution

under section 304(f)(2).” Jd.

The clear purpose of Congress is to separate the

nonpoint sources of pollutants under section 304(f)(1) from

other sources of pollutants such as agricultural, mining,

construction, salt water intrusion, and changes in movement,

flow or circulation of navigable waters, under section 304(f)(2),

by numbering them separately. ,

Looking at section 304(f)(2) as a whole this is the only

way it makes sense. If section 304(f)(2) were interpreted as

being included within the section 304(f)(1) nonpoint source

category, then all the activities defined in sections 304(f)(2)(A)

through (E), as well as (F), would also be nonpoint sources of

pollutants, in addition to section 304(f)(2)(F). This the EPA

cannot accept. EPA regulations expressly require an NPDES

permit for point source discharges for many of the activities

listed in section 304(f)(2), including, under section

12

304(f)(2)(A), agricultural activities involving concentrated

animal feeding operations, regulated at 40 CFR 122.23; mining

activities, section 304(f{2)(B), regulated at 40 CFR

122.26(a)( 1 (11), (b)(14)(1ii); and construction activities, under

section 304(f)(2)(c), regulated at 40 CFR 122.26(a)(9)(i),

(b)(14)(x), (b)(15){i), 122.34(b)(i).

A statute’s plain meaning must be enforced. The

Supreme Court has stressed, “over and over,” that in construing

the language of a statute the court must not be guided by a

single sentence, but must be guided by the provisions of the

whole law. United States v. Heirs of Boisdore, 49 U.S. 113

(1849). The only way to read section 304(f)(2) is to separate it

from the nonpoint source section in 304(f)(1).

Another fundamental flaw with the EPA interpretation

of section 304(f) is the assumption that section 304(f)(2)(F) is

about the changes in movement, flow, or circulation from one

navigable water to another. It is not. There is no mention of

a transfer, connection or discharge of the movement of water

from one water body to another under section 304(f)(2)(F). The

only way to read this section, in light of the statute as a whole,

is to recognize that it is deals with pollution from changes in

movement, flow or circulation within the navigable waters that

the changes are taking place in. When the pollution from these

changes is then discharged through a point source into

navigable waters it meets the definition of a “discharge of

pollutants” at CWA section 502(12), 33 U.SC. § 1362(12).

C. The Inquiry Must Be Whether There Is A

Discharge Of Pollutants.

Even assuming that section 304(f)(2)(F) could be read

to establish Congress’ intent to treat “changes in the movement,

flow, or circulation of any navigable waters...” as nonpoint

sources, and as including the movement from one navigable

water to another, it still does not establish Congress’ intent to

separate those movements from consideration as point source

discharges.

The EPA argues that discharges from changes in

13

movement in flow should be treated as nonpoint sources based

on the terms of section 304(f)(2)(F), rather than a point source

under section 402(a), as defined at section 502(14) of the

CWA. Looking at the relevant language of these two provisions

of the CWA it is striking how similar they are to one another.

Under section 304(f)(2)(F), the language reads, “changes in

movement, flow and circulation of navigable waters, including

changes caused by the construction of dams, levees, channels,

causeways, or flow diversion facilities.” The definition of a

point source under CWA 502(14), 33. U.S.C. § 1362(14) is a

“discernable, confined and discrete conveyance, including but

not limited to any pipe, ditch, channel, tunnel, conduit, well,

discrete fissure, container, rolling stock, concentrated animai

feeding operation, or vessel or other floating craft...” This

definition would clearly include the channels, causeways or

flow diversion facilities under section 304(f)(2) (F).

The basic difference between these two provisions of

the CWA is the phrase in the definition of “point source” that

States: “from which pollutants are or may be discharged.” 33

U.S.C. § 1362(14). The only way to determine if an activity

that could be either a “change in movemer:t, flow or circulation

of any navigable water...” under section 304(f)(2)(F), or a

point source discharge as defined in section 502(14), is to

determine if there is or might be a discharge of pollutants

as a result of that discharge activity into our nation’s waters.

The Supreme Court, in Miccosukee, supports this

conclusion by stating, “That (point source) definition makes

plain that a point source need not be the original source of

pollutant; it need only convey the pollutant to “navigable

waters,” which are, in turn, defined as “the waters of the

United States”. 541 U.S. at 105. Determining if the point

source conveys pollutants is thus the critical inquiry.

If the movement, flow or circulation of any navigable

water contains pollutants, and is discharged from a point source

that causes the addition of pollutants to the navigable water

being discharged into, it requires a NPDES permit.

14

D. The August 5, 2005 EPA iaterpretation Merits No

Deference

The United States EPA interpretation of August 5, 2005

cited by the Petitioner in this case beginning at page 22 of the

Brief, was submitted to the Federal District Court for the

Southern District of Florida on that same date, August 5, 2005.

It was submitted in support of the United States’ Motion For

Summary Judgment, as an Intervenor Defendant in the case of

of Friends of the Everglades v. South Florida Water

Management District, Case No.02-80309. The Friends of the

Everglades made the following argument to the Southern

District Court on the EPA Interpretation:

The EPA Interpretation that was submitted to

the Court is not entitled to deference under

Chevron v. Natural Resources Defense Council,

Inc. 467 U.S. 837 (1984). The interpretation has

not been the subject of rule making, with the

“fruits” of notice and comment; nor has it gone

through any adjudication process before the

agency. U.S. v. Mead Corp. 533 U.S. 218, 226

( 2001). Under these circumstances deference

as a matter of law under Chevron is not

warranted.

Even though EPA is not entitled to deference as

a matter of law, under the direction of the

Supreme Court in Skidmore v. Swift & Co. 323

U.S. 134 (1944), the court must look to see if

some level of persuasiveness should be

accorded to it. /d. at 139.

The interpretation offered by EPA in this case runs

contrary to Congress’ purpose and intent in passing the Federal

Clean Water Act (CWA), as well as the specific provisions of

the CWA; and is contrary to the determinations of the United

States Supreme Court, as set forth more fully below, and

cannot be given any deference. |

15

In Skidmore the weight given to an agency

interpretation should depend on the thoroughness evident in the

consideration, the validity of the reasoning, and consistency

with earlier pronouncements. Id. at 140. Even assuming it was

not contrary to the CWA’s clear purpose and provisions, the

reasoning in the EPA Interpretation is not valid. It is not based

on a thorough evaluation of the Act, but on selective portions

of the CWA taken out of context with the purpose of tle Act in

order to allege that there are ambiguities within the provisions

of the CWA when in fact there are not. The EPA Interpretation

is divisive and not supported by the unambiguous terms of the

Act. As a result, this Court cannot give any deference or weight

to the EPA Interpretation.

Specifically, the EPA Interpretation states that water

transfers, that is, amy activity that conveys or connects

navigable waters without subjecting the water to intervening

industrial, municipal or commercial use, is exempt from

NPDES requirements, ( EPA Interpretation Memorandum),

except for water transfer activities that had previously been

determined to require NPDES requirements, (as set forth in

Section VI of the Interpretation).

Under the doctrine of deference adopted by the

Supreme Court in Chevron the first question to ask in

determining whether to give credence to an agency statutory

interpretation is whether the intent of Congress is clear within

the terms of the statute; if the statute is silent or ambiguous

with respect to a specific issue, then one must ask whether the

agency’s interpretation is based on a permissible construction

of the statute. 467 U.S. at 842-43.

The starting point for statutory interpretation is the

language of the statute itself. Consumer Prod. Safety Comm'n

v. GTE Sylvania, Inc., 447 U.S. 102, 108 £1980). The first step

“is to determine whether the language at issue has a clear and

unambiguous meaning with regard to the particular dispute in

the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).

The inquiry ceases “if the statutory language is unambiguous

and ‘the statutory scheme is coherent and consistent.’” /d. That

is the case here.

16

The language of the CWA clearly demonstrates that

Congress intended that any discharge of any pollutant from any

point source into our nation’s waters is to be regulated under

the NPDES program set forth ia the CWA.

There is no ambiguity within the language of the Clean

Water Act which could enable the EPA to restrict the scope of

the NPDES permit program to exclude from regulation every

conveyance not subject to intervening industrial, municipal or

commercial uses, (except those the EPA has already included).

The CWA is a comprehensive act of Congress, passed

in 1972, amended in 1977 and again in 1987, with Congress’

specific objective to restore and maintain the chemical,

physical and biological integrity of the Nation’s waters. CWA

§101(a), 33 USC §1251(a).

The core of the CWA is the Congressional prohibition

that, “Except in compliance with this (Act), the discharge of

any pollutant by any person shall be unlawful,” CWA §301(a),

33 USC §1311(a). There is no ambiguity in the inclusive

language of this section. Any discharge of any pollutant is

covered by the prohibition.

To make it even more clear Congress defined the term,

“discharge of a pollutant” as, “any addition of any pollutant to

navigable waters from any point source.” CWA §502(12), 33

USC § 1362(12). There are n~ exclusions or other limitations

provided by Congress in defining what was meant to be

included in the general prohibition under section 301(a).

Exemptions from the requirements of the CWA can

only be established through the legislative process, not by

agency interpretation, nor by agency regulation. The CWA

requires that any discharge of pollutants through a point source

into our nation’s waters be regulated by the NPDES provisions

of the CWA, section 402(a), unless the activity does not come

within the parameters of the definitions Congress has

established to implement its purposes and goals.

Congress has provided specific exemptions from

NPDES requirements in the CWA. Section 502(14), 33 USC

§ 1362(14), the definition of “poimt source,” exempts

“agricultural stormwater discharges and retum flows from

17

irrigated agriculture” from the definition. If Congress wanted

to exempt from point sources all conveyances from one

navigable water to another it would have done so. A

fundamental principle of statutory construction, expressio unius

est exclusio alterius, holds that express inclusion of one item

implies the intent to exclude other items not included. Edward

Christensen, et. at., v. Harris County, et. al, 529 U.S. 576, 582-

83 (2000).

Congress has also provided two specific exemptions

under the definition of the term pollutant: sewage from vessels

or a discharge incidental to the normal operation of a vessel of

the armed forces; and water, gas, or other material which is

injected into a well to facilitate production of oil, gas or water

derived in association with oil or gas production, and disposed

of in a well, if the well is approved by the state. CWA §502(6),

33 U.S.C. § 1362(6). Congress could have extended the

exceptions to include pollutants from one navigable water body

to another. It did not. Expressio unius est exclusio alterius.

EPA is attempting to add a major new exemption

through its Interpretation, where Congress has limited

exemptions to the Act by legislative amendment. Congress did

not provide EPA with any specific authority under the CWA to

exempt any category of dischargers by regulation, much less to

limit the extent of the CWA by interpretation.

The whole concept of the CWA is to restore and

maintain the chemical, physical and biological integrity of our

nation’s waters. One of the Congressional goals of the CWA is

to eliminate the discharge of pollutants into navigable waters.

The purpose of the CWA, to restore the integrity of our nations

waters, cannot be given any credence if EPA can categorically

exempt all conveyances from one water to another unless

subjected to industrial, municipal or commercial use. The

CWA would become an Act to regulate industrial and

municipal treatment systems, not an act to clean and restore our

nation’s waters, if NPDES permits were limited to the EPA

Interpretation.

Congress’ intent in enacting the 1972 Clean Water Act

Amendments was clearly to establish an all-encompassing

18

program of water pollution regulations. Rep. No. 92-414, at 95,

2 Leg. Hist.1S511. As the Supreme Court stated, the 1972

Amendments established “a comprehensive program for

controlling and abating water pollution.” Milwaukee v. Illinois,

451 U.S. 304 (1981).

In Milwaukee, the Supreme Court concluded that,

“Every point source discharge is meant to be prohibited unless

covered by a permit, which directly subjects the discharger to

the administrative apparatus established by Congress to achieve

its goals.” Jd. at 318. (Emphasis added.)

In the case of EPA v. California ex rel. State Water

Resources Control Board (“EPA v. California”), 426 U.S. 200

(1976), the Supreme Court dealt with the history of what

prompted the 1972 Amendments, beginning with the fact that

the federal water pollution program up to that time was

“inadequate in every vital aspect.” Citing S. Rep. 92-414, Id. at

202-03. |

The Supreme Court recognized that the 1972

Amendment introduced two major changes in the methods of

setting and enforcing standards to abate and control water

pollution. “First, the Amendments are aimed at achieving

maximum ‘effluent limitations’ on ‘point sources,’ as well as

achieving acceptable water quality standards.” EPA v.

California, 426 U.S. at 205. “Second, the amendments

established the National Pollutant Discharge Elimination

System (NPDES) as a means of achieving and enforcing the

effluent limitations.” /d. at 205.

The purpose of the major changes was to deal with the

problem of enforcement inherent in the prior cumbersome

enforcement procedures. The prior procedures employed

ambient water quality standards which specified acceptable

levels of pollution in the navigable waters, rather than anplying

the specified acceptable levels at the source of the d.. -harge

into the water. As the Supreme Court stated in EPA v.

California, “Such direct restrictions on discharges facilitate

enforcement by making it necessary to work backward from an

over-polluted body of water to determine which point sources

are responsible and which must be abated.” /d. at 204.

19

Under the CWA definition of the term “discharge of a

pollutant,” the focus of determining whether the CWA

restriction under section 301 applies is to look “to” the

receiving body of water, and determine if there are “any”

pollutants being added to the receiving water from “any” point

source. The meaning of the terms “any” and “to” are

unambiguous. “Any” means “every or all, in relation to which

pollutants and which point sources.” Webster’s New Century

Dictionary (2001). “To” means simply “motion or direction

toward a point, person, place or thing,” not “from.” /d.

In order for the EPA/DOJ tp create this broad new

exemption of water transfers from the NPDES program the

EPA has to draw assumptions and inferences from peripheral

sections of the CWA, employing subjective “interpretations” of

what these sections mean collectively, not within the language

of these sections themselves. That is why the DOJ repeatedly

uses the phrase relating to the CWA, “when read as a whole,”

relying on sections 101(g), 510(2), and 304(f)(2)(F), to create

their argument. (EPA Interpretation Memorandum).

The EPA Interpretation, relied on by the DOJ, defines

a water transfer as, “any activity that conveys or connects

navigable waters without subjecting the water to intervening

industrial, municipal or commercial uses.” (EPA Interpretation

Memorandum). Not only is this definition contrary to the

Supreme Court Determination in Miccosukee, that “the

definition of a point source need not be the original source of

the pollutant; it need only convey the pollutant to ‘navigable

waters,’ which are, in turn, defined as ‘the waters of the United

States.” 541 U.S. at 105(Emphasis added); It also creates a

definition completely outside the scope of and without the

support of the CWA.

Nowhere in the sections relied on by EPA and DOJ, or

anywhere in the CWA, is the term “water transfer” used,

identified or defined. Nowhere in the CWA is the phrase

“conveys or connects navigable waters” identitied or defined.

Neither are the terms “convey” or “connect” independently

used in any of the sections of the CWA relied on by the

Intevenor Defendant. Without the use of the term “connect” the

20

definition would not work.

Nor does the CWA mention or define what the term

“subjecting the water to intervening...” uses means. The EPA

Interpretation gives no guidance. The CWA does define the

term “industrial user” at section 502(18), 33 U.S.C. § 1362(18),

and the term “municipality” in 502(4), 33 U.S.C. § 1362(4),

which gives some insight into what industrial and municipal

uses might mean but these terms are not used in the provisions

of the CWA relied on by the DOJ to limit the scope of the

Congressional intent to prohibit discharges of pollutants to be

related only to industrial, municipal or commercial uses.

There is thus no authority in the CWA to support the

use of the term “water transfer” and its created definition to

define or limit any activity which discharges pollutants into

navigable waters from being regulated under the NPDES

program.

E. Nonpoint Sources Are Not Exempt From Point

Source Provisions Of The CWA.

The next problem with the DOJ argument that water

transfers are exempt from NPDES permitting is that the

principle provisions of the CWA must be ignored to reach that

desired conclusion. To accomplish the task of avoiding review

under the point source provisions of the CWA, the DOJ states,

“Looking to the statute as a whole reveals that a fact-specific

inquiry into every water transfer is legally irrelevant.” (EPA

Interpretation Memorandum).

The DOJ argument, although not clearly articulated, is

that as a matter of law, if there is water transfer activity it is de

facto a nonpoint source under section 304(f)(2)(F). If it is a

nonpoint source it cannot be a point sour: - according to the

DOJ. Therefore, the analysis as to whether or not that activity

is subject to the point source provisions of an NPDES permit

should not be made. The United States Supreme Court

disagrees. In Miccosukee, the Supreme Court stated that, “We

note, however, that section 1314(f)(2)(F) does not explicitly

exempt nonpoint pollution sources from the NPDES permit

21

program if they also fall within the ‘point source’ definition.”

541 U.S. at 106.

The DOJ argument of exemption of all non-industrial,

municipal, commercial use point source discharges as nonpoint

source is based on a misguided attempt to restore states’ control

over water quality responsibilities that Congress removed from

them in the 1972 CWA. See 451 U.S. at 310; 426 U.S. at 202-

03.

This is clearly contrary to the intent of the CWA to

restore and maintain the chemical, physical and biological

integrity of our nation’s waters; and to establish as a national

goal the elimination of the discharge of pollutants into our

nation’s waters. CWA sections 101(a) and 101(a)1). It is also

contrary to the United States Supreme Court view of the scope

of the CWA, which is that “every point source discharge is

meant to be prohibited unless covered by a permit, which

directly subjects the discharger to the administrative apparatus

established by Congress to achieve its goals.” Milwaukee 451

U.S. at 318; EPA v. California ex rel. State Water resources

Board, 426 U.S. at 200; Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc. 452 U.S. 264, 282 (1981)(finding that

the CWA is a paradigm of environmental regulation, and is an

“accepted exercise of federal power”).

The provisions of the CWA that are relied upon by the

DOJ, as well as the South Florida Water Management District,

in attempting to redefine the CWA, are peripheral to and not

supportive of the primary goal of the CWA to restore our

nation’s waters.

_ The goal of the CWA to maintain the water allocation

rights of states contained in section 101(g) of the CWA merely

reaffirms those existing rights and does not conflict with

federal regulation of water quality point source discharges.

Both the Supreme Court and Congress have made this clear.

Sections 101(g) and 510(2) preserve the authority of each state

to allocate water quantity between users; they do not limit the

scope of water pollution controls that may be imposed on users

who have obtained permits pursuant to a state permit, a water

allocation permit. PUD No. | of Jefferson County et. all. v.

22

Washington Department of Ecology et. al., 511 U.S. 700, 720

(1994). In the Legislative History of the CWA, 1977

Amendments, when section 101(g) was added, it was stated,

“The requirements [of the CWA] may incidentally affect

individual water rights . . . It is not the purpose of this

Amendment to prohibit those incidental effects. It is the

purpose of this amendment to insure that state allocation

systems are not subverted, and that effects in individual rights,

if any, are prompted by legitimate and necessary water quality

considerations.” Ser. No. 95-14, p. 532, at 721 (1978).

The remaining provision relied upon by DOJ, section

304(f), sets out the requirements to provide guidelines to the

states for identifying and evaluating the nature and extent of

two sources of activities. The first, in section 304(f)(1), is

nonpoint sources of pollutants. The second is for processes,

procedures and methods to control pollution resulting from

agricultural, mining, construction activities and salt intrusion,

as well as changes in movement of waters. CWA § 304(f)(2),

33 U.S.C. § 1314(f)(2). These guidelines are also supplemental

to the primary purpose of the CWA to restore the water quality

of our nation’s waters through control of point sources of

pollutants.

As the Tenth Circuit Court of Appeals determined,

nowhere in section 304(f) does it exempt the permit

requirement for point source discharges. The Tenth Circuit held

that the provision does not create nonpoint exemptions from the

CWA’s NPDES requirement, stating “mining and other

categories listed in section 1 314(f)(2) may involve discharges

from both point and nonpoint sources, and those from point

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

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

was the result of an EPA enforcement action.

The DOJ’s repeated assertions that their concept of an

exemption for water transfers from NPDES permitting is the

holistic view of the CWA, “which gives due consideration to

all of the relevant provisions and goals,” and is a view of the

“CWA read as a whole,” is a sham. (EPA Interpretation

Memorandum).

——o

f

3

F. _ There Is No Distinction Between Pollution And

Pollutants.

The DOJ alludes, and the WMD directly argues, that

the CWA draws a clear distinction between the term

“pollution” and the term “pollutant,” implying that pollution is

a term dealing with nonpoint sources under the CWA, and

pollutant with point sources under the CWA. (EPA

Interpretation Memorandum). This distinction simply makes no

sense.

The CWA does not distinguish between the terms

“pollution” and “pollutant.” The CWA does not segregate

problems with pollution from nonpoint sources and problems

with pollutants from point sources. The very section of the

CWA relied upon bv the Defendants to establish the

assumption that Congress establishes a separate category of

nonpoint sources of pollution, section 304(f)(2)(F), does not

even refer to nonpoint sources. But section 304(f)(1) does, and

it refers to developing guidelines for identifying nonpoint

sources of pollutants, not pollution.

The definitions of pollutants and pollution are quite

related. The term pollution means the man-made or man-

induced alteration of the chemical, physical, biological and

radiological integrity of water. CWA § 502(19), 33 U.S.C. §

1362(19). These are the same terms as are stated in the primary

_ goal of the CWA at 101(a), 33 U.S.C. § 1251(a). These terms

are also reflected within the definition of “pollutant” at CWA

502(6), which includes “chemical wastes,” “biological

materials,” “radioactive materials,” and lots of physical

materials, including, dredged spoil, solid waste, rock, sand,

cellar dirt, as well as industrial, municipal and agricultural

waste.

There is no reason within the goals and provisions of

the CWA to try to make these two terms separate and distinct.

A general principle of statutory construction is that courts are

“required ... to interpret one statutory term in a manner that

will not conflict with other terms.” Oil, Chemical & Atomic

Workers Int'l v. RMI Titanium Co. 199 F.3d 881, 894 (6" Cir.

24

2000). |

If “pollution” as defined in the CWA is considered only

in relation to nonpoint sources, then any discharge of “man-

made or man-induced alterations of the chemical, physical,

biological and radiological integrity of water” would be

exempted as a point source. It would be impossible to separate

point sources of pollutants of chemical, physical, biological and

radiological wastes from the discharge of man-made alteration

of the same materials.

CONCLUSION

S.D. Warren’s Brief misinterprets this Court’s Opinion

in the case of South Florida Water Management District v.

Miccosukee Tribe of Indians, 541 U.S. 95 (2004).

The reliance of the Petitioner, as well as the EPA and the D.C.

and Sixth Circuit Courts of Appeal in the “Dam” cases, and the

EPA in its August 5, 2005 Interpretation on section

304(f)(2)(F) as a statutory exemption for nonpoint sources is

contrary to the plain meaning and intent of that section.

Further, Warren’s reliance on the EPA August 5, 2005

Interpretation is inappropriate, as the Interpretation is contrary

to the terms and conditions of the Federal Clean Water Act, and

this Court’s numerous interpretations of relevant portions of

that Act.

For the foregoing reasons, Amicus respectfully urges the

Court to affirm the lower court’s decision regarding Maine’s

decision to require 401 Certification conditions to the

discharges of the Petitioner S.D. Warren’s dams on the

Presumpscot River in Maine.

25

Respectfully submitted,

John E. Childe

Counsel of Record

For Friends of the Everglades

606 Pine Road

Palmyra, Pennsylvania 17078

717-520-1510

No. 02-626

IN THE

Supreme Court of the United States

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

V.

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA

And FRIENDS OF THE EVERGLADES, INC.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR REHEARING

DEXTER W. LEHTINEN SONIA ESCOBIO O’ DONNELL

Counsel of Record ~ RICHARD J. OVELMAN

JUAN M. VARGAS ENRIQUE D. ARANA

CLAUDIO RIEDI TODD M. FULLER

LEHTINEN, VARGAS JORDEN BURT LLP

& RIEDI, P.A 777 Brickell Avenue

7700 North Kendall Drive Suite 500

Suite 303 Miami, FL 33131

Miami, FL 33156-7559

(305) 279-1166 DIONE C. CARROLL

In House General Counsel

MICCOSUKEE TRIBE OF INDIANS

OF FLORIDA

P.O. Box 440021

Tamiami Station

Miami, FL 33144

Counsel for Respondent

Miccosukee Tribe of Indians of Florida

SS

A-l

STATEMENT

Pursuant to Sup. Ct. R. 44, the Tribe requests rehearing to

correct statements in the Opinion which inaccurately state the

Tribe’s position in this appeal, and which, if left uncorrected,

could cause confusion on remand.' The corrections are

necessary not only to reflect the clear record before the Court

regarding the Tribe’s long standing positions — before the

district court, before the circuit court and in its brief and

argument to this Court —- but also because they clarify the

hydrological relation between these two distinct surface water

bodies. Rehearing is proper because the portion of the Opinion

that was remanded contains misconceptions of fact.

1. The Opinion Should Be Corrected To Reflect That

The Tribe Does Argue That a Permit Would Be

Required Even If the WCA-3 And The C-11 Are

Determined To Be Two Parts Of The Same Water

Body.

The Opinion states: “The Tribe does not dispute that if

C-11 and WCA-3 are simply two parts of the same water body,

pumping water from one into the ocher cannot constitute and an

‘addition’ of pollutants.” South Florida Water Management

District (“SFWMD”") v. Miccosukee Tribe of Indians, et all,

124 S. Ct. 1537, 1545 (2004). This is incorrect.

1. The Tribe fully recognizes that rehearing petitions are granted

only rarely and that they are not a vehicle for rearguing a case the Court has

taken great care in deciding. See Sup. Ct. R. 44. Nevertheless, the Tribe

understands that the Court will make changes “to correct certain

inaccuracies or omissions brought to light by a petition for rehearing...”

Robert L. Stern, ef al., Supreme Court Practice 729 (8" ed. 2002) (collecting

cases). The Tribe respectfully submits that the Court should grant :ehearing

in this case for the limited purpose of the correcting two material

inaccuracies in the Opinion regarding the Tribe's positions in this appeal.

A-2

At oral argument, the Tribe’s counsel argued that

permits would be required even if the WCA-3 and the C-11

were found to be the same body of water:

QUESTION: ...do you think that if it — if— if it is

established that — that this is the same water body,

these pumps would be ok without permitting.

MR. LEHTINEN: No, your honor, because...

QUESTION: I thought so...

(Tr. at 37)

* * *#

QUESTION: But you say this doesn’t matter anyway.

You wouldn’t care if it was the same water body. That

isn’t — that isn’t what you are arguing.

MR. LEHTINEN: We do argue that [if] it is the same

water body and you pump it substantially upstream.

You would also need a permit.

QUESTION: Right, right.

(Tr. at 43.44).

Relying on Dubois v. United States Department of

Agriculture, 102 F.3d 1273 (1* Cir. 1992), the Tribe’s counsel

explained that whether the WCA-3 and the C-1 | are considered

to be one body of water (i.e, hydrologically connected) or not

is irrelevant because water from the C-11! naturally flows in an

easterly direction — away from WCA-3.

(Tr. at 37-38). As the Dubois Court explained:

The [] ‘hydrological connectedness’ proposal ignores

a fundamental fact about water: the direction of flow.

A-3

It is true that Loon Pond and the East Branch of the

Pemigewasset River are “hyrdrologically connected” in

the sense that wat.r from the pond flows down and

eventually empties into the River. But water from the

East Branch certainly does not flow uphill into Loon

Pond, carrying with it the pollutants that have

undisputedly accumulated in the East Branch water

from some of the other sources of water entering the

East Breach from upstream. Under such circumstances,

defendants cannot credibly argue that these water

bodies are so related that the transfer of water from the

East Branch fo Loon Pond is not an “addition” of

water from one of the “waters of the United States” to

another.

Dubois, 102 F.3d at 1298.

In its brief, the Tribe consistently argued that permits

were required because “the S-9 pump station reverses the

natural flow, backpumps ‘against a gradient’ or ‘against what

would flow naturally the other direction, or another direction,’

the polluted water to the west, where it would not have flowed

otherwise.” (Resp. Br. at 8); (see also Resp. Br. at 12, 17 &

24); (see also Br. of Friends of the Everglades at 5 & 13).

Accordingly, the Tribe did not, and has never, conceded that

permits would not be required if it is determined that the C-11

and the WCA-3 are one, interconnected, body of water. The

Court should correct the Opinion so that there is no confusion

on remand.”

2. The Court also states in dicta that:

After reviewing the full record, it is possible that the District Court

will conclude that C-! L and WCA-3 are not meaningfully distinct

water bodies. If it does so, then the S-9 pump station will not need

NPDES permit. 3

(Cont'd)

A-4

2. The Decision Shoula Be Corrected To

Reflect That The Tribe Does Defend The

Decisions Of The Lower Courts That The C-

11 And The WCA-3 Are Distinct Because

The Transfer Ff Water From The C-11 Into

The WCA-3 Would Not Occur But For The

S-9 Pump. |

The Opinion also states that the district court applied a

test for determining whether the C-11 and the WCA-3 are

distinct water bodies which “neither party defends; it

determined that C-11 and WCA-3 are distinct ‘because the

transfer of -vater or its contents from C-11 into the Everglades

would not occur naturally.’’” SFWMD, 124 S.Ct. at 1546. This

statement is mistaken with respect to the Tribe’s position.

The Tribe vigorously defends the district court’s view

that a permit is required because the transfer of surface water

pollutants from the C-11 to the WCA-3 would not occur

naturally. (Resp. Br. at 8, 12, 17 & 24); (see a/so Br. of Friends

of the Everglades at 5 & 13). The Tribe did not otherwise

explicitly defend the district court’s application of this test

(Cont'd)

SFWMD, 124 S. Ct. at 1547. To the extent this dicta was predicated on the

Opinion’s statement that the Tribe concedes that no permits would be

required if the C-1 | and WCA-3 are the same body of water, this language

should be corrected because there was no such concession. Whether or not

predicated on that assumption, the dicta should be corrected because it is

confusing. Backpumping and discharging surface water containing

pollutants from downstream sources into pristine areas upstream would

require a permit even if the stream is the same hydrologically because it

would involve the discharge of pollutants. Although the Court recognized

this difference by using the term “meaningfully distinct” water bodics and

“cause in fact,” the dicta does not expressly set forth the criteria for

establishing the “same body of water” test.

A-5

for distinguishing the two water bodies because the District

simply did not challenge that test in its Petition to this Court.

(See Pet. Br. at 46-49). Indeed, it would have been futile for

the District to do so because the undisputed record evidence is

that, absent the operation of the S-9 pumps, water from the C-

11 would not naturally enter the Everglades Water

Conservation Area:

Water in the C-11 canal could occasionally,

under extreme hydrologic conditions, flow from

east to west. However, it would not naturally

enter the Everglades Protection Area without

operation of the S-9 pump station.

(J.A. at 193) (emphasis added). As the Eleventh Circuit

explained, “[n]either party disputes that, without the operation

of the S-9 pump station, the polluted waters from the C-11

Canal would not normally flow [west] into the WCA-3A.”

(Petition at 8a).’ |

CONCLUSION

For the foregoing reasons, this Court should grant

rehearing.

3. The Tribe clearly stated in its brief that the lower

courts

correctly found that the Petitioner's discharge of

pollutants from the large pipes of the S-9 pump station

was not a remote ‘but for’ cause of the pollutants

reaching the Everglades Protection Area but instead it

was the most immediate cause of the pollutants entering

that area and as such constituted an ‘addition’.

(Tribe’s Br. At 24); (see also Br. of Friends of the Everglades at 9).

A

DEXTER W. LEHTINEN

Counsel of Record

JUAN M. VARGAS

CLAUDIO RIED!

LEHTINEN, VARGAS

& RIEDI,P.A

7700 North Kendall Drive

Suite 303

Miami, FL 33156-7559

(305) 279-1166

Respectfully submitted,

SONIA ESCOBIO O’ DONNELL

RICHARD J. OVELMAN

ENRIQUE D. ARANA

TODD M. FULLER

JORDEN BURT LLP

777 Brickell Avenue

Suite 500

Miami, FL 33131

DIONE C. CARROLL

In House General Counsel

MICCOSUKEE TRIBE OF INDIANS

P.O. Box 440021

Tamiami Station

Miami, FL 33144

Counsel for Respondent

Miccosukee Tribe of Indians of Florida

A-7

CERTIFICATE OF GOOD FAITH

The undersigned hereby certifies that this petition for

rehearing is restricted to the grounds specified in Rule 44.1 of

the Rules of the Supr: me Court and is presented in good faith

and not for delay.

DEXTER W. LEHTINEN

A-8