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

IN THE

Supreme Court of the United States

S.D.WARREN COMPANY,

Petitioner,

Vv.

MAINE DEPARTMENT OF :

ENVIRONMENTAL PROTECTION,

Respondent.

On Writ OF CERTIORARI TO THE

MAINE SUPREME JUDICIAL CouRT

AMICUS CURIAE BRIEF OF MICCOSUKEE TRIBE OF

INDIANS OF FLORIDAIN SUPPORT OF RESPONDENT

DexTeR W. LEHTINEN Sonia Escosio O’ DONNELL

Counsel of Record Enrique D. ARANA

CLAubIO RIED! JORDEN Burt LLP

Ke ty S. Brooks 777 Brickell Avenue

LEHTINEN, VARGAS, & Rept, P.A. Suite 500

7700 North Kendall Drive Miami, FL 33131

Suite 303

Miami, FL 33156-7559

(305) 279-1166

Counsel for Amicus Curiae

Miccosukee Tribe of Indians

COUNSEL PRESS

(800) 274.3321 + (800) 359-6859

i

QUESTION PRESENTED

Does South Florida Water Management District v.

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

address whether the conveying of a river’s water through an

existing dam constitutes a “discharge,” requiring a state water

quality certification under Section 401 of the Clean Water

Act.

u

TABLE OF CONTENTS

QUESTION PRESENTED ....................

TT GHEE 06.65 KA cdc ons sendcsds

ee nee ee ee

I.

MICCOSUKEE’S NARROW HOLDING

-DOES NOT SUPPORT PETITIONER’S

CLAIM THAT A SECTION 401 CERTIFICA-

TION IS NOT REQUIRED IN THIS CASE

A. The Narrow Holding of Miccosukee ...

B. The Tribe Has Always Taken The

Position That Pumping Water From One

Part Of A Water Body Into Another Can

Constitute An Addition Of Pollutants

ae Oeeeeeesecewset?28 886 eee @€ €& oe 2 64.466 2 8

C. Miccosukee Does Not Support Petitioner’s

PT TTT TT ee eT Te

Page

ili

Contents

Page

li. THE “AGENCY INTERPRETATION”

RELIED UPON BY PETITIONER AND

AMICI IS NOT ENTITLED TO

Ey ovv.ccdengs os avcnseteeses 9

TE NL INTs a Pe 16

EE 2.0 645 00 U0 Hae Ve eGWeswiteeneaienee la

iv

TABLE OF CITED AUTHORITIES

Page

CASES:

Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d

Saeee CHD Gee BOOED 6.464450.4 een heweeeees 12

Catskill Mountains Chapter v. New York, 273 F.3d

Gen GRE Geh Bete on dcdscaaveecesnes ewes 13

Chevron, U.S.A., Inc. v. Natural Resources Defense

Counsel, Inc., 467 U.S. 837 (1984) .......... 11,12

Christensen v. Harris County, 529 U.S. 576

GOED vovccccecsvescbeuveseveaeusaaeee 12

City of Milwaukee v. Illinois and Michigan, 451 U.S.

PPEUED: 0-66 60'cx 6Sgke008 00 renee 14

Dubois v. United States Department of Agriculture,

Bae F506 1S7d Chat Gat. SOUP 0 os kvecccneennes 7, 13

Friends of the Everglades v. SFWMD, case no. 02-

80309-CIV-Altonaga/Turnoff ................ 10

Jama v. Immigration & Customs Enforcement, 543

Ws DEP GREED 0:05 4-5.05-005sKedneses nares 6

James City County, Virginia v. EPA, 12 F.3d 1330

SONG, GUND vavcccescuesiebeuaeeeeee 15

Vv

Cited Authorities

Page

Marange v. Fontenot, 879 F. Supp. 679 (E.D. Tex.

DP iMiihtanh bane eebee+eedesse cee eeeees 6

Riverside Irrigation District v. Andrews, 758 F.2d

ie otis saeseesodocevcses es 14

S.D. Warren v. Board of Environmental Protection,

Be Che BOW GD, BOOED cc ccccccccccccccces 9

Sierra Club v. Abston Constr. Co. Inc., 620 F.2d 41

i Pied echdeceepen6beddedeesye 13

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ..... 12

South Florida Water Management District v.

Miccosukee Tribe of Indians of Florida, 541 U.S.

se Ge RR Sa passim

Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir.

EE a a 13

United States v. Earth Sciences, 599 F.2d 368

DT 2eeecegdhees teceeedcecde 13

United States v. Mead Corp., 533 U.S. 218

EE ee 13

vi

Cited Authorities

Page

STATUTES, RULES & REGULATIONS:

33 U.S.C. § 1251 (Clean Water Act § 101) ... 10, 14,15

Pe OF UEE (6b e hehe ecbcdciccecnciwees 11,14

33 U.S.C. § 1314 (Clean Water Act § 304) ...... 10, 13

33 U.S.C. § 1341 (Clean Water Act § 401) ... 3, 8,9, 11

33 U.S.C. § 1342 (Clean Water Act § 402) ...... passim

PP On te OE Cb encdnsceseeccipenes 4,9, 11,14

FS Dee UD ont ndcbccteckeccstasoundnes 14

l

No. 04-1527

IN THE

Supreme Court of the United States

S.D.WARREN COMPANY,

Petitioner,

v.

MAINE DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent.

On Writ or CERTIORARI TO THE

MAINE SupREME JupiciAL Court

AMICUS CURIAE BRIEF OF MICCOSUKEE TRIBE OF

INDIANS OF FLORIDA IN SUPPORT OF RESPONDENT

see] ee

With the written consent of the parties given and filed

with the Clerk of the Court, the Miccosukee Tribe of Indians

of Florida (“Tribe”) respectfully submits this brief as amicus

curiae.'

1. Counsel for amicus curiae have authored this brief in whole

and no other person or entity other than amicus, its members or

counsel have made a monetary contribution to the preparation or

submission of this brief.

2

INTEREST OF AMICUS CURIAE

The Miccosukee Tribe of Indians of Florida is a federally-

recognized Indian Tribe, whose members live in the Florida

Everglades, an historically distinct and internationally

significant wetlands ecosystem. The culture, health and well

being of the Tribe is dependent on preserving the chemical

and physical water quality of the Florida Everglades.

Accordingly, the Tribe has consistently participated in efforts

to protect the Everglades from pollution that threatens to alter

and degrade the water quality of these wetlands.

The Tribe was the Plaintiff/Respondent in South Florida

Water Management District v. Miccosukee Tribe of Indians

of Florida, 541 U.S. 95 (2004). The Petitioner in this case

has made arguments regarding the holding in Miccosukee

that the Tribe believes are incorrect.

Miccosukee resolved the question presented: whether the

NPDES program covers a point source only when pollutants

originate from the point source and not when pollutants

originating elsewhere merely pass through a point source.

This Court held that the definition of a point source makes it

plain that the point source need only convey the pollutant to

navigable waters.

The Miccosukee Court also recognized that both of the

lower federal courts had made a “predicate determination”

on a motion for summary judgment that the discharging

S-9 pump station at issue conveyed waters between two

distinct water bodies resulting in the addition of pollutants

to the receiving waters. However, the Court remanded the

Miccosukee case to the district court for the development of

a more complete record on allegedly disputed fac‘s that would

3

establish whether the C-11 drainage canal from which ©

polluted waters were withdrawn was meaningfully-distinct

from the WCA-3 Everglades wetlands into which the polluted

waters were discharged. The district court in Miccosukee has

not yet resolved the factual issue to be decided on remand.

The Tribe has an interest in this case because Petitioner

has misconstrued the Miccosukee decision and seeks to use

the decision, which involved a Section 402 permit and a very

narrow holding, as precedent for determining whether a

Section 401 certification is required under the Clean Water

Act (“CWA”) for discharges of water through a river's

hydroelectric dams. The Petitioner also attempts to use a

litigation memorandum drafted by counsel for the

Environmental Protection Agency (“EPA”) for a case in

which the Tribe is Plaintiff-Intervenor and which is still being

litigated below. The Tribe has an interest in addressing this

issue as well.

SUMMARY OF ARGUMENT

This case presents the question whether dammed river

waters may lawfully be discharged into downstream waters~

without obtaining a Section 401 state water quality

certification under the CWA. The Petitioner, and amici on

behalf of Petitioner, misconstrue Miccosukee and argue that

it compels the conclusion that a Section 401 state water

quality certification for a discharge is not required. However,

as shown below, Miccosukee's very narrow holding does not

support this conclusion. Moreover, the Petitioner and amici’s

reliance on an EPA litigation memorandum, issued on the

date of the summary judgment motions deadline in district

court in an unrelated case in order to obtain a litigation

advantage, should be rejected; that memorandum is not

entitled to deference.

4

ARGUMENT

I. MICCOSUKEE’S NARROW HOLDING DOES NOT

SUPPORT PETITIONER’S CLAIM THAT A

SECTION 401 CERTIFICATION IS NOT REQUIRED

IN THIS CASE

A. TheNarrow Hokiing O EMiccosukee

In Miccosukee, this Court found “untenable” the

petitioner’s argument that it did not need a Section 402 permit

because its S-9 pump station was not itself adding anything

to the polluted water being discharged into waters of the

United States. The Court rejected the petitioner’s proposed

reading of the definition of “discharge of a pollutant”

contained in 33 U.S.C. § 1362(12) because “[t}hat definition

includes within its reach point sources that do not themselves

generate pollutants.” Miccosukee, 541 U.S. at 105. This is

the only question on which the Miccosukee Court granted

certiorari and the only substantive issue decided by the Court.

Thus, the Miccosukee case holds that under Section 402 of

the CWA, the pollutants being added to the receiving waters

need not be generated by the point source itself. /d.

The Miccosukee opinion also noted that both the aistrict

court and the Eleventh Circuit rested their holdings on the

“predicate determination” that the C-11 canal and the WCA-3

wetlands were distinct waters of the United States. Jd. at 99.

This Court explained that it would not address the adequacy of

the legal test used by the trial court to determine whether the C-

11 canal and the WCA-3 wetlands were distinct waters of the

United States: “[i]nstead, we hold only that the District Court

applied its test prematurely.” Jd. at 111 (emphasis added). It

is thus clear that the Miccosukee opinion decided the question

a a

5

presented and does no more than reverse what it believed

was a premature summary judgment and remand for a fuller

development of the factual record.

Petitioner incorrectly argues that “Miccosukee thus holds

that merely taking control over water in a man-made facility to

Cause it to travel from one point to another is not an addition of

anything to the waters if the water at the entrance and the exit

of the facility are not meaningfully distinct water bodies.”

Pet. Brief at 21. Amici incorrectly argue that this Court in

Miccosukee “held that the mere pumping of water from one

part of a water body into another part of the same water body

does not constitute an ‘addition’ of a pollutant; therefore, no

discharge occurs for purposes of Section 402 of the CWA.” Br.

of Amicus Curiae Salt River Project Agric. Improvement &

Power Dist. at 9. Other amici incorrectly argue:

A fundamental flaw in the SJC’s decision is its

failure to address this Court’s holding in

Miccosukee. In Miccosukee, the Court considered

what constitutes an ‘addition’ in the context of

Section 402 of the CWA, where water was pumped

from a canal to a water conservation area sixty

feet away. 541 U.S. at 100, 104-05. This Court

confirmed that a ‘discharge of a pollutant’ occurs

only when the water body receiving the water is

‘meaningfully distinct’ from the water body that

was the source of the water. /d. at 112.

Br. of Amicus Curiae Nat’! Ass’n of Home Builders at 8-9.

However, Miccosukee does not hold as Petitioner and amici

State.

6

Perhaps as a result.of a mistaken belief that the Tribe had

conceded that, if the WCA-3 wetlands and the C-11 canal were

not meaningfully distinct water bodies the pump station would

not need a permit,’ the Court in Miccosukee noted:

After reviewing the full record, 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. However, this statement in Miccosukee is dicta

because it is simply an expression of judicial opinion about the

way the law would be if applied to facts not before the court.

Marange v. Fontenot, 879 F. Supp. 679, 686 n.5 (E.D. Tex.

1995); see also Jama v. Immigration & Customs Enforcement,

543 U.S. 335, 125 S. Ct. 694, 706 n.12 (2005) (“Dictum settles

nothing, even in the court that utters it.”). Miccosukee held only

that summary judgment was premature and that the point source

need not originate the pollutant in order to be covered by the

permit requirements of § 402 of the CWA.

B. The Tribe Has Always Taken The Position That

Pumping Water From One Part Of A Water Body

Into Another Can Constitute An Addition Of

Pollutants

This Court in Miccosukee stated that “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 other

cannot constitute an ‘addition’ of pollutants.” Miccosukee,

541 U.S. at 109. Amici argue here that “[i]n Miccosukee, the

Court noted with approval the Miccosukee Tribe’s concession

2. See argument Section I.B., infra.

7

‘that if [the C-11 canal] and [the WCA-3 wetlands] are simply

two parts of the same water body, pumping from one into the

other cannot constitute an ‘addition’ of pollutants.’” Br. of

Amicus Curiae Augusta, Ga. at 7. In fact, this was not the Tribe’s

position in Miccosukee and it is not the Tribe’s position here.

Indeed, the Tribe sought rehearing on this point to clarify the

record. See Tribe’s Petition for Rehearing, attached as appendix

herein.

Relying on Dubois v. United States Department of

Agriculture, 102 F.3d 1273 (1st Cir. 1996), the Tribe’s counsel

explained at oral argument in Miccosukee that whether the

WCA-3 and the C-11 are considered to be one body of water

(i.¢., ydrologically 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.

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

Pemigewasset River are “hydrologically connected”

in the sense that water 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 Branch 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 to 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.

8

The conclusion that the Tribe conceded this point is

incorrect. As the Tribe stated in its Petition for Rehearing to

this Court: “[a]ccordingly, 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-3A are one,

interconnected body of water.” Petition for Rehearing at 3.

C. Miccosukee Does Not Support Petitioner’s

Argument Here

The lower courts in this case considered whether the

Maine Board of Environmental! Protection (“BEP”) had

jurisdiction to issue a water quality certification under Section

401 of the CWA for the renewal of Federal Energy Regulatory

Commission (“FERC”) operating licenses for the Petitioner

as operator of six hydro-electric dam structures in Maine.

The Section 401 state water quality certifications are required

as a pre-condition to issuance or renewal of federal licenses

or permits for any structures that “may result in any discharge

into navigable waters.” 33 U.S.C. § 1341(a)(1). The BEP

issued the Section 401 water quality certification with certain

conditions and a re-opener clause, permitting future review

of the water quality certification under certain conditions.

On this appeal, Petitioner for the first time invokes the

Miccosukee case and suggests it holds that Section 401

certification is not required if water at the entrance and the exit

of a dam are not meaningfully distinct. However, as noted above,

the Miccosukee decision contained no such holding. Indeed,

Miccosukee does not make any reference to the certification

requirements of Section 401. Rather, the Miccosukee decision

addressed whether Section 402 of the CWA requires a permit

for the operation of a structure pumping pollutants, against

the forces of gravity, into the waters of the Everglades.

9

Section 402(12) of the CWA defines the term “discharge

of pollutants” to mean “any addition of any pollutant

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

§ 1362(12)(A). Thus, Section 402 requires NPDES permits

for discharges, such as the ones addressed in the Miccosukee

decision, that actually add pollutants to navigable waters of

the United States. Section 401(a)(1), in contrast, requires

applicants for federal permits or licenses to obtain water

quality certifications for structures that “may result in any

discharge into navigable waters,” and does not speak of

“pollutants.” 33 U.S.C. § 1341(a)(1)(emphasis added).

Accordingly, although structures discharging or “adding”

pollutants would likely be included in operations that “may

result in any discharge into navigable waters,” there could

be many additional operations that “may result in a discharge

into navigable waters,” without actually adding any pollutants

from any point source. Accordingly, whether a structure in

fact adds pollutants, within the Section 402 definition of the

term, would not determine whether the structure requires the

threshold water quality certification under Section 401 of

the CWA. It is sufficient that the structure “may result in any

discharge.” The Supreme Judicial Court of Maine correctly

relied upon this distinction in S.D. Warren v. Board of

Environmental Protection, 868 A.2d 210 (Me. 2005).

Il. THE “AGENCY INTERPRETATION” RELIED

UPON BY PETITIONER AND AMICI IS NOT

ENTITLED TO DEFERENCE

Petitioner’s brief refers to an August 5, 2005 litigation

memorandum authored by General Counsel for the EPA,

although no argument is provided regarding how this Court

should treat this memorandum. Amici in support of Petitioner

argue that since the decision in Miccosukee, EPA has

10

“formally” articulated its interpretation of Section 402’s

permitting requirement with respect to water diversions and

conveyances and that this formal interpretation confirmed

EPA’s long-standing practice and is consistent with earlier

circuit court decisions. Br. of Amici Curiae Western Urban

Water Coalition at 5; see also Br. of Amicus Curiae Nat’]

Ass’n of Home Builders at 8 (referencing the “Agency

interpretation of August 5, 2005). As shown below, this

document is not entitled to deference.

The litigation memorandum of August Sth referred to

by Petitioner and amici was created for the case styled

Friends of the Everglades v. SFWMD, case no. 02-80309-

CIV-Altonaga/Turnoff, in which the Tribe is a Plaintiff-

Intervenor. In that case, the Government attempted to obtain

an advantage by issuing a last minute “opinion” that simply

restated its litigation position. The Government relied on this

memorandum in its motion for summary judgment arguing

that the memorandum was an agency interpretation entitled to

deference. The district court correctly denied the Government’s

summary judgment motion. D.E. 527, case no. 02-80309.

The EPA litigation memorandum purports to advocate a

“holistic” approach to the CWA, while actually arguing that the

separate, interrelated regulatory measures of the CWA be ignored

by means of unauthorized, ad hoc “exemptions” to its express

permitting requirements. The litigation memorandum restated

the Government’s arguments in case no. 02-80309 relying on

non-point source regulation, Section 101(g), and Section 304

as exemptions to the Section 402 permit requirements of the

CWA and also provided what EPA believed was a modified

version of the “unitary waters theory” argued by the United

States in Miccosukee. '

11

The litigation memorandum is not entitled to deference for

several reasons. First, no deference is appropriate when the

statutory language is clear. See Chevron, U.S.A., Inc. v. Natural

Resources Defense Counsel, Inc., 467 U.S. 837, 842-43 (1984).

The CWA requires a Section 402 permit for “any addition of

any pollutant to navigable waters from any point source.”

33 U.S.C. §§ 1311, 1342 and 1362(12). Thus, the provisions of

the CWA are quite clear: if there is a discharge of pollutants

from a point source, a permit is required. That is the end of the

inquiry. No deference to the agency is necessary or appropriate.

Id.

The agency interpretation disregards the clear statutory

language of the CWA and adopts wholesale the defendants’

litigation position that point source discharges of pollutants do

not need Section 402 permits under the CWA. No deference at

all should be accorded to the agency’s legal memorandum,

because it disregards the provisions of the CWA that require

Section 402 permits for all discharges from point sources into

navigable waters. To reach the result urged in the agency’s

litigation memorandum, the plain language of the CWA would

have to be rewritten to prohibit “any addition of any pollutant

to navigable waters from any point source unless the point source

conveys or connects other navigable waters.” Because the

Statutory language plainly and unambiguously requires an

NPDES permit, and the agency’s litigation memorandum is

contrary to Congress’ unambiguously expressed intent, that

memorandum is not entitled to deference.’

3. Petitioner’s argument that the EPA litigation memorandum

directs a conclusion that Section 401 certification is not required in this

case also ignores the fact that the litigation memorandum was drafted

for a case that involved Section 402 NPDES permit requirements, not

Section 401 certification.

12

Moreover, deference under Chevron is only appropriate in

reviewing administrative action that is the result of notice and

comment rule-making, or formal adjudication, or where there

are persuasive indications that Congress intended for the agency

action to have the force of law. See United States v. Mead Corp.,

533 U.S. 218, 230-32 (2001). The litigation memorandum was

not the result of notice and comment rule-making, nor of any

formal adjudication. The agency litigation memorandum is not

- a regulation formally prescribed by the EPA pursuant to its

delegated authority. Instead, it is a legal memorandum prepared

by EPA General Counsel that simply restates the United States’

litigation position in a case that is still being litigated in the

district court. Thus, there can be no argument that the litigation

memorandum is entitled to Chevron deference.

If the agency action at issue is not a formal regulation or

adjudication, the agency action may be “‘entitled to respect’

under [this Court’s] decision in Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944), but only to the extent that those

interpretations have the ‘power to persuade.’” Christensen v.

Harris County, 529 U.S. 576, 587 (2000); Arriaga v. Florida

Pacific Farms, L.L.C., 305 F.3d 1228, 1238 (11th Cir. 2002)

(“Agency interpretations expressed in opinion letters must be

viewed through the standard enunciated in Skidmore.”). Under

the Skidmore doctrine, the agency interpretation’s power to

persuade should be considered in light “of its writer’s

thoroughness, logic and expertness, its fit with prior

interpretations, and any other sources of weight.” Mead Corp.,

533 U.S. at 235. As shown below, the EPA litigation

memorandum lacks thoroughness and logic, and is inconsistent

with prior agency practice and persuasive legal authority.

The litigation memorandum is unpersuasive because it relies

on incorrect theories to circumvent the plain requirements of

13

the CWA. The Court in Miccosukee discussed the unitary waters

theory advanced by the United States, that is, that the “waters

of the United States” are one and that once a pollutant is added

to any part of the waters of the United States, the resulting

polluted water can then be added to the remaining waters of the

United States without further regulation under the CWA. The

Miccosukee Court noted the Government's theory would lead

to the conclusion that Section 402 permits would not be required

even if “one water body were polluted and the other pristine

and the two would not otherwise mix.” /d. at 105-06 (citing

Catskill Mountains Chapter v. New York, 273 F.3d 481, 492

(2d Cir. 2001); Dubois v. United States Dept. of Agriculture,

102 F.3d 1273 (ist Cir. 1996)).

The Court also characterized the Government’s unitary

waters argument as contending that Congress intended that such

pollution be addressed through local non-point pollution

programs. The Court noted, however, that Ҥ 1314(f)(2)(F) does

not explicitly exempt non-point pollution sources from the

NPDES program if they also fall within the ‘point source’

definition. And several NPDES provisions might be read to

suggest a view contrary to the unitary waters approach.” /d. at

106-07. Indeed, any attempt to use non-point source regulation

as a substitute for permit requirements is contrary to the CWA

and has been rejected by the few circuit courts of appeal that

have addressed the issue. See United States v. Earth Sciences,

599 F.2d 368, 373 (10th Cir. 1979) (holding that Section 304(f)

lists activities that “may involve discharges from both point

and nonpoint sources, and those from point sources are subject

to regulation”); Trustees for Alaska v. EPA, 749 F.2d 549, 558

(9th Cir. 1984) (same); Sierra Club v. Abston Constr. Co. Inc.,

620 F.2d 41, 44 (Sth Cir. 1980) (same). Thus, this Court

questioned the unitary waters theory although leaving it open

to be raised for further development on remand.

14

Moreover, there is no exemption in the CWA for state water

allocation activities. In order to meet the objective of “restor[ing]

and maintain[ing] [the] chemical, physical and biological

integrity of [the] Nation’s waters,” 33 U.S.C. § 1251, the CWA

makes unlawful without an NPDES permit “the discharge of

any pollutant by any person.” 33 U.S.C. §§ 1311 & 1342

(emphasis added). The term “person” is defined to include states

and any political subdivision of a state. 33 U.S.C. § 1362. Citizen

suits are authorized to enforce the permit obligation against “any

[] governmental instrumentality or agency . . . permitted by the

eleventh amendment.” 13 U.S.C. § 1365. Thus, the plain

language of the CWA subjects state and local governments to

the permitting requirements. As this Court has explained,

“{e]very point source discharge is prohibited unless covered by

a permit .. .” City of Milwaukee v. Illinois and Michigan, 451

U.S. 304, 318 (1981).

There is no express exemption in the CWA for state

water allocation activities. Instead, the Act’s “Congressional

declaration of goals and policy” section states, among other

things, that “[i}t is the policy of Congress that the authority of

each State to allocate quantities of water within its jurisdiction

shall not be superseded, abrogated or otherwise impaired by

this chapter.” 33 U.S.C. § 1251(g). Section 101(g) does not say

that if a state is involved in water allocation activities it is not

required to obtain a permit for discharges of pollutants into

navigable waters. Moreover, CWA regulation of water quality

is perfectly consistent with State authority to allocate water

quantities. For these reasons, it is well-settled that Section 101(g)

does not create an exemption from the requirements of the CWA

but rather “is only a general policy statement” which cannot

nullify the clearly expressed will of Congress requiring

compliance with the permitting requirements of the Act.

Riverside Irrigation District v. Andrews, 758 F.2d 508, 514

15

(10th Cir. 1985); see also James City County, Virginia v. EPA,

12 F.3d 1330, 1336 (4th Cir. 1993).

In short, the Government’s arguments, which attempt to

create exemptions by using the unitary waters theory, “non-point

source” arguments, as well as Section 101(g), incorrectly

interpret the CWA and are not persuasive.

Additionally, the agency’s position in the litigation

memorandum is not consistent with prior positions and is not

long-standing. The agency acknowledges the existence of a 1975

agency opinion that takes the opposite view. The litigation

memorandum attempts to distinguish the 1975 opinion and then

also rejects it. Certainly, however, it cannot be argued that the

new agency position is long-standing. It represents a drastic

change in position, with no persuasive justification such as a

change in statutory language or even a regulation.

Finally, because the tria] court was not given the opportunity

to consider the litigation memorandum, it is unclear whether

the scope of the “agency interpretation” would apply to the facts

in this case, even if the opinion were entitled to any deference,

which it is not.

16

CONCLUSION

For the foregoing reasons, the decision below should be

affirmed.

Respectfully submitted,

Dexter W. LEHTINEN

Counsel of Record

CLaupio Riepi

KeE.y S. Brooxs

LEHTINEN, VARGAS, & Ruepi, P.A.

7700 North Kendall Drive

Suite 303

Miami, FL 33156-7559

(305) 279-1166

Sonia Escosio O” DoNNELL

ENRIQUE D. ARANA

Jorpen Burt LLP

777 Brickell Avenue

Suite 500

Miami, FL 33131

Counsel for Amicus Curiae

Miccosukee Tribe of Indians

la

APPENDIX A

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 Wait or CERTIORARI TO THE

Unirep States Court OF APPEALS FOR THE ELEVENTH CiR-

Counsel of Record RICHARD J. OVELMEN

Juan M. VARGAS EnrIQUE D. ARANA

C.Laupio RIED! Topp M. FuLLer

LEHTINEN, VarRGAS & Riepi, P.A. Jorpen Burt LLP

7700 North Kendall Drive 777 Brickell Avenue

Suite 303 Suite 500

Miami, FL 33156-7559 Miami, FL 33131

(305) 279-1166 Dioné C. Carro_i

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

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Appendix

[Table of Contents and Table of Cited Authorities

intentionally omitted]

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 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, et al., Supreme Court

Practice 729 (8th ed. 2002) (collecting cases). The Tribe respectfully

submits that the Court should grant rehearing in this case for the

limited purpose of correcting two material inaccuracies in the

Opinion regarding the Tribe’s positions in this appeal.

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Appendix

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 other cannot

constitute an ‘addition’ of pollutants.” South Florida Water

Management District (“SFWMD”) v. Miccosukee Tribe of

Indians, et al., 1248. Ct. 1537, 1545 (2004). This is incorrect.

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

4a

Appendix

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 (1st Cir. 1992), the Tribe’s

counsel explained that whether the WCA-3 and the C-11

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. It is true that Loon Pond and

the East Branch of the Pemigewasset River are

“hydrologically connected” in the sense that water

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 Branch from upstream. Under

such circumstances, defendants cannot credibly

Sa

Appendix

argue that these water bodies are so related that

the transfer of water from the East Branch to 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,’

and disposes 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-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.

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-11 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

(Cont'd)

6a

Appendix

2. The Decision Should 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 Of 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 water 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 also Br. of Friends

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

explicitly defend the district court’s application of this test

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

(Cont'd)

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 bodies and “cause

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

establishing the “same body of water” test.

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Appendix

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 the operation

of the S-9 pump station.

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

explained, “[nJeither 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).

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

correctly found that 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).

8a

Appendix

CONCLUSION

For the foregoing reasons, this Court should grant

rehearing.

Respectfully submitted,

Dexter W. LEHTINEN Sonta Escosio O’ DONNELL

Counsel of Record RICHARD J. OVELMEN

JUAN M. VARGAS ENRIQUE D. ARANA

CLaupio Rie! Topp M. Futter

LEHTINEN, VARGAS JorDEN Burt LLP

& Ruepi, P.A. 777 Brickell Avenue

7700 North Kendall Drive Suite 500

Suite 303 Miami, FL 33131

. Miami, FL 33156-7559

(305) 279-1166 ~ Diont 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