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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0097%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 370

## Text

“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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0097%3A15. Public record. Not legal advice.