Amicus Curiae Brief — James City County v. Environmental Protection Agency

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Supreme Court, U.

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No. 93-2045

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In the Supreme Court of the United States

OCTOBER TERM, 1994

JAMES CITY COUNTY, VIRGINIA,

PETITIONER,

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY

AND U.S. ARMY CORPS OF ENGINEERS,

RESPON DENTS.

On Petition For A Wnit of Certiorani to

the United States Court of Appeals for

the Fourth Circuit

BRIEF OF AMERICAN WATER WORKS

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

KENNETH A. RUBIN*

HUNTER L. PRILLAMAN

Morgan, Lewis & Bockius

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7000

Attorneys for Amicus Curiae

American Water Works Association

*Counsel of Record

i.

TABLE OF CONTENTS

Page

TAREE GR COT ae nc ce cece neses i

TABLE OF AUTHORITIES ...............-- ill

STATEMENT OF INTEREST ..........----+-:> 1

SUMMARY OF ARGUMENT .........---++:: 2

REASONS FOR GRANTING THE WRIT ....... 3

I. The Decision of the Court of Appeals

Jeopardizes the Nation’s Long-Term

Public Water Supplies ...........---+5-- 3

A. The Demand for Public Water Is

Increasing Dramatically ....... ah apn 3

B. Additional Surface Water

Reservoirs Will Be Needed to

Provide Additional Public Water

a EET Pe ee ee 4

G. Allowing EPA to Veto Water

Projects Without Considering Need

Jeopardizes Essential Water

Development Projects ..........-.-. 6

Il. A Recent Survey Reveals the Massive

Adverse Impact Across the Nation of the

Court of Appeals’ Decision ........---->> 7

li.

Ill. The Clean Water Act Requires EPA to

Consider the Need for Water Supplies ...... 8

CLLR 00 4:04 Ess OER ORE ees 11

lil.

TABLE OF AUTHORITIES

Cases

Chevron, U.S5.A., Inc. v. NRDC , 467 U.S.

a et g

James City County, Virginia v. United

States Environmental Protection Agency,

23 Envtl. L. Rep. 20,228 (E.D. Va. :

ARETE Sr re ee 7,8,9

Statutes

Clean Water Act Section 404,

RE Se 3, 6, 8,9, 10

Regulatory Materials

Environmental Protection Agency,

§ 404(c) Regulations

MUSED 6 os cc cc cccecessacsce 10

Articles

Steven J. Koorse, P.E., When Public

Interests Clash with the

Environment: The Ware Creek

Case, Environmental Engineer,

EM ce ccc ehaeeceeseceseecaus 6

IN THE

SUPREME COURT of the UNITED STATES

OCTOBER TERM, 1994

JAMES CITY COUNTY, VIRGINIA,

Petitioner,

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY

and U.S. ARMY CORPS OF ENGINEERS,

Respondents.

BRIEF OF AMERICAN WATER WORKS

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST

The American Water Works Association

(hereinafter "AWWA") is the largest water supply

organization in the world. AWWA is a non-profit,

scientific and educational society for water supply

professionals and organizations that was founded 113

years ago. AWWA’s membership includes 3,900 utilities

that supply about 75 per cent of the nation’s drinking

water. More than 55,000 water treatment operators,

managers, engineers, environmentalists, scientists, water

supply regulators, manufacturers, and academicians are

2

also members of AWWA. Petitioner James City County

(hereinafter "JCC")is a member of AWWA.’

The decision of the Court of Appeals has

important ramifications that extend far beyond the

boundaries of Virginia. Many new reservoirs will be

needed throughout the country to meet critical water

supply needs of the future. AWWA is concerned that the

decision of the Court of Appeals jeopardizes reliable

water supplies by excusing the Environmental Protection

Agency (hereinafter “EPA")from considering the essential

. need for water in decisions on applications to create

future water reservoirs. Despite the ever-increasing need

for new water supply projects to meet the demands of

growing populations, the Court of Appeals’ ruling allows

EPA to halt the essential efforts of AWWA members to

fulfill their vital public mandate.

Unless the decision is reversed, water projects

across the nation may be blocked or cast into uncertainty,

without any consideration of the often desperate need for

additional water supplies. As a result, millions of people

may be deprived of essential water.

SUMMARY OF ARGUMENT

This case is a matter of vital national interest,

involving the availability of one of the necessities of

human life -- water. The Court of Appeals’ decision poses

a major threat to the future water supplies of states and

localities across the nation, because it allows EPA to veto

essential projects without even considering the need for

those projects. Unlike natural disasters that threaten

Letters reflecting the parties’ consent to the filing

of this brief have been filed with the Clerk of the Court.

3

water supplies, this new threat -- an EPA veto that ignores

the need for water -- is both unnatural and unlawful. The

Clean Water Act clearly requires EPA to consider the

need for water supplies in determining whether to veto a

particular project on environmental grounds. This Court

should review the lower court’s decision both because of

its massive impact and because of the substantial error of

law that was made below.

REASONS FOR GRANTING THE WRIT

I. The Decision of the Court of Appeals Jeopardizes

the Nation’s Long-Term Public Water Supplies.

The Environmental Protection Agency vetoed the

proposed reservoir project in this case based solely on its

evaluation of environmental effects, without even

considering the locality’s desperate need for the water the

project could provide. The decision creates a frightening

precedent for all localities and water suppliers in the

United States. JCC’s situation is typical. Population

growth and population redistribution is drastically

increasing demand for usable water in many areas, while

natural supplies of fresh water are severely limited. In

most such areas, the increased need for water simply

cannot be met without the construction of a dam and

reservoir, a project requiring a permit under section 404

of the Clean Water Act.

A. The Demand for Public Water Is Increasing

Dramatically.

The population of the United States increases by

1.5 per cent each year. This means the addition of more

4

than 3 million people annually. The population of the

arid regions of the United States, where water supplies

are scarcest, is growing even faster. California, Arizona,

New Mexico, Texas, Nevada, Oklahoma, and Kansas grew

by 6.9 per cent, or 1,023,000people a year, between 1990

and 1994.

If current levels of water conservation and average

domestic use remain the same, the total national demand

for water will be approximately 48 billion gallons per day

by the year 2010. This means that in the next 15 years,

the water supply in the United States must grow by

approximately six billion gallons a day, a 14 per cent

increase over current production.

Expanded use of current water supplies and

conservation efforts simply cannot keep up with

population growth of this magnitude. This is particularly

true for areas that are magnets for redistribution of

population, but do not have extensive untapped water

resources. The record below shows that JCC is such an

area, and there are many others, such as arid portions of

the Sunbelt, that are attracting significant migration of

population.

B. Additional Surface Water Reservoirs Will Be

Needed to Provide Additional Public Water

Supplies.

The major sources of the public water supply are

groundwater, river and lake withdrawals, and surface

water reservoirs. Currently, groundwater satisfies 41.9

percent of annual municipal water needs. Reservoirs are

the only source that can be significantly expanded to meet

new demands for water.

Many communities, like JCC, are not able to meet

the demand for water by relying on groundwater alone,

5

and im many cases, may not be able to rely on

groundwater for even part of needed water supplies. For

communities across the country, like JCC, that rely on

groundwater, contamination and a falling water table are

common problems. According to EPA estimates, 10 per

cent of groundwater nationwide exceeds Safe Drinking

Water Act standards for contaminants. Moreover,

overdraw is causing the water table to drop in many

regions, adding to the cost and difficulty of using

groundwater to supply pubixn water systems and

endangering the ffuture viability of this source.

Accordingly, it is simply not practicable to look to

increasing use of groundwater to solve future water

shortfalls in most areas.

Similarly, with respect to river and _ lake

withdrawals, in many areas such resources are already

being used to the maximum extent possible.

Consequently, the only choice for most localities

facing increased demand for water supplies is the

construction of new surface water reservoirs.

In addition, the use of reservoirs often has

environmental benefits compared to other options.

Reservoirs provide a storage pool for managing pumping

from river and groundwater supplies. Reservoir storage

enables pumping from the reservoir when there is excess

runoff and pumping groundwater during low river flows.

Operating in this way has less impact on the environment

than the continuous direct withdrawal required when

storage is not available.

6

on Allowing EPA to Veto Water Projects Without

Considering Need Jeopardizes Essential Water

Development Projects.

Many, if not all, reservoirs and impoundments of

water have some adverse effect on the environment.

Though these impacts vary, many past and present

reservoirs would not have been built had EPA been able

to wield the power it now claims, to veto projects without

considering how much they are needed.

Such power gives EPA a chokehold over states,

regions, and localities that have the obligation to provide

adequate quantities of drinking water and water for other

uses to their citizens. See Steven J. Koorse, P.E., When

Public Interests Clash with the Environment: The Ware

Creek Case, Environmental Engineer, July 1994, at 24.

The facts of this case suggest how far this power

could go, and the tremendous potential for abuse. Among

the reasons EPA rejected JCC’s project was the finding

that the mitigation plan was inadequate, in part because

EPA believed it was insufficient in terms of area, and in

part because EPA found that the mitigation areas would

be different in certain respects from the area affected by

the project. Thus, all EPA would ever have to do to veto

a project would be to find that the mitigation plan did not

replace the affected land with precisely the same kind of

wetlands in precisely the same proportions -- a finding

which will almost always be possible for the Agency to

make. Accordingly, the Court of Appeals’ decision

essentially gives EPA unfettered discretion to veto a water

project, no matter how great the need for the project

might be, and no matter how extensive the mitigation plan

might be.

In this case, the district court recognized the JCC’s

"desperate need for water," and held that EPA is

eae |

7

obligated to consider such need in the section 404 process.

James City County, Virginia v. United States Environmental

Protection Agency, 23 Envtl. L. Rep. 20,228, 20,229

(E.D.Va. 1992). The Court of Appeals’ decision allows

EPA to ignore that desperate need, and further allows

EPA to ignore similar needs whenever it sees fit.

Il. A Recent Survey Reveals the Massive Adverse

Impact Across the Nation of the Court of Appeals’

Decision.

AWWA recently surveyed public water systems to

determine the impact of the Court of Appeals’ decision. ”

The survey reveals that an estimated 107 public water

systems plan to build a reservoir in order to meet

projected needs of an additional 23 million people. Over

three-quarters of these reservoirs will have more than

minor environmental effects. Conceivably, then, EPA

could use the power given it by the Court of Appeals’

decision to deny permits in the near future for 80

different reservoirs, without ever considering the need for

the water. Such vetoes could affect the vital water needs

of approximately 17 million people. Indeed, the impact

could be even greater, because if EPA is not required to

: The survey is included in the appendix to this

brief. The water suppliers surveyed were asked to state

whether they planned to construct a reservoir, and

whether the anticipated environmental impacts of the

reservoir were minor, moderate, or significant.

Respondents were also given the opportunity to add

comments. Selections from these comments are

included in the appendix, and they further demonstrate

the massive national impact of the Court of Appeals’

decision.

8

balance the need for a project against the adverse

environmental impacts, the Agency could decide that even

insignificant impacts are "unacceptable," and veto the

project.

Accordingly, the Court of Appeals’ decision has a

drastic effect on the members of AWWA and the

segments of the public they serve. AWWA thus strongly

urges the Court to review this important issue.

III. The Clean Water Act Requires EPA to Consider

the Need for Water Supplies.

Section 404 of the Clean Water Act authorizes the

Administrator of the EPA to deny permits when he

determines that the project will "have an unacceptable

adverse effect on municipal water supplies, shellfish beds

and fishing areas (including spawning and breeding areas),

wildlife, or recreational areas." 33 U.S.C. § 1344(c)

(emphasis added). "Unacceptable adverse effect" is not

defined in the statute. The interpretation of section 404

adopted by the Court of Appeals, however, would simply

read the word "unacceptable" out of the statute.

The presence of the word "unacceptable" can only

mean that EPA is to determine whether the "adverse

effect" of the project is acceptable or unacceptable in the

context of other relevant facts. Obviously, the need for

the project in the first place is one of the most highly

relevant factors in deciding whether consequent

environmental effects are "unacceptable." Adverse effects

that might be unacceptable for a project that had little

justification might be eminently acceptable in connection

with a project that responded to a “desperate need" for a

vital resource, such as drinking water.

9

The district court in this case correctly stated:

The EPA neglects a_ significant

consideration, however, when it completely

ignores James City County’s desperate need

for water. No mention of this need is

contained in the EPA’s evaluation of the

acceptability of the reservoir project. While

the regulations governing Section 404(c) do

not advise EPA of each of the limitless

considerations that must enter an evaluation

of a project’s acceptability, the need for

water is a factor it must consider.

23 Envtl. L. Rep. at 20,229. The district court also noted

that the statute and the regulations require EPA to

consider the effect of the project on "municipal water

supplies," and that the veto of a water project obviously

affects such supplies.

In Chevron, U.S.A., Inc. v. NRDC , 467 U.S. 837

(1984), the Supreme Court established a two-step process

for evaluating an agency’s statutory interpretations:

When a court reviews an agency’s construction of

the statute which it administers, it is confronted

with two questions. First, always, is the question

whether Congress has directly spoken to the

precise question at issue. If the intent of Congress

is clear, that is the end of the matter; for the court,

as well as the agency, must give effect to the

unambiguously expressed intent of Congress.

467 U.S. at 842 (footnote omitted). Only if the intent of

Congress is unclear may the court proceed to the second

step and ask whether the agency interpretation is based

10

upon a permissible construction of the statute. 467 U.S.

at 843.

In this case, Congress’ use of the word

"unacceptable," coupled with its requirement that the

effect on municipal water supplies be considered, shows

that Congress directly answered the question at issue here,

and required EPA to consider such factors as need for the

project. If the word "unacceptable" is in any way

ambiguous, EPA’s interpretation is not permissible,

because it would effectively read that word out of the

statute entirely.

The Court of Appeals’ decision is also contrary to

the governing EPA regulations, which require the EPA

Administrator to "take into account all information

available to [her]" in making a determination under

section 404(c). 40 C.F.R. § 231.1(a). Here, EPA refused

to consider a vital piece of information that was clearly

available -- JCC’s desperate need for additional water

supplies.

In short, as noted above, EPA’s interpretation, and

the Court of Appeals’ decision, would give EPA

unfettered discretion to decide that any adverse effects

were "unacceptable," without considering the most

relevant available information, the degree to which the

proposed project is essential to the people of the affected

area. This is contrary to the clear meaning of both the

statute and the regulations, and, when coupled with the

drastic effects of this interpretation outlined above, merits

review by this Court.

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CONCLUSION

The Court should grant the Petition for Writ of

Certiorari, reverse the judgment and order the case

remanded to the U.S. EPA for further consideration of

needs, alternatives, and impacts of the proposed action.

Respectfully submitted,

KENNETH A. RUBIN

HUNTER L. PRILLAMAN

MORGAN, LEWIS & BOCKIUS

1800 M Street, N.W.

Washington, D.C. 20036

Attorneys for Amicus Curiae the

American Water Works Association

August 24, 1994

APPENDIX

APPENDIX

AMERICAN WATER WORKS ASSOCIATION

GOVERNMENT AFFAIRS OFFICE

1401 New York Avenue, N.W.,Suite 640

Washington, D.C. 20005

(202) 628-8303

FAX (202) 628-2846

SPECIAL AWWA SURVEY IDENTIFYING

IMPACT OF WARE CREEK DECISION

Survey Procedure

A survey was distributed to 218 water suppliers,

including urban and rural suppliers of various sizes and in

various parts of the country. Each supplier was asked to

indicate whether i: had plans for the construction of a

water supply reservoir in the future. Suppliers answering

in the affirmative were asked to indicate whether the

expected environmental impacts of the reservoir were

believed to be minor, moderate, or significant. Suppliers

were asked to indicate how may persons would be served

by planned reservoirs. Recipients of the survey were also

asked to provide any comments they might have on the

potential impact of the Court of Appeals’ decision in

James City County, Virginia v. U.S. Environmental

Protection Agency. The survey was coordinated for

AWWA by Dan W. Pedersen, P.E.

Survey Results

218 surveys were distributed to water suppliers,

and, as of July 15, 1994, 97 suppliers (44.5%) had

responded.

Of the water suppliers responding, 26 (or 26.8%)

stated that they had plans to construct a reservoir, while

71 (or 73.2%) stated that they did not have plans to

construct a reservoir.

If these percentages are projected to the 400 public

water systems that are of a size and type that could

practically construct a reservoir, AWWA estimates that

approximately 107 water suppliers nationwide have plans

to construct new reservoirs.

When the 26 water suppliers planning reservoirs

were asked what the environmental effects of the

reservoir projects were anticipated to be, six (or 23.08%)

stated that the effects would be minor, 13 (or 50%) stated

that the effects would be moderate, and 7 (or 26.92%)

stated that the effects would be significant.

Based upon survey results, the average water

supplier intending to construct a reservoir plans to serve

an additional 217,692 persons. The 26 water suppliers in

the survey indicating plans to construct reservoirs

collectively would serve an additional 5,660,000 persons.

If the percentages above are extrapolated to all water

systems expected to build reservoirs, such systems would

serve approximately 23,340,206additional persons.

Se ee

3

PERTINENT QUOTES FROM SURVEY FORMS

Unless something is done, we have seen the last reservoir

of any size built in this country.

John A. McManus

Director of Water

New Britain, CT

The EPA would say any reservoir would have a significant

impact. The EPA seems to be saying "No more

reservoirs." Long-range human needs should have highest

priority. We now make it too easy to defeat any project

by additional studies, time delays, and trying to have zero

environmental impacts (which is impossible).

Richard D. Hartman

General Manager

Appomattox River Water Authority

Petersburg, VA

We must as a nation decide if additional water supply for

a growing population is worth potential environmental

problems. The alternative is to tell people where they can

live and work.

Ken Jones

Director of Utilities

Midland, TX

4

Our reservoir plans were set aside ten years ago due to

environmental concerns.

William F. Haney

Asst. Util. Mgr.

City of Mesa, AZ

Dangerous precedent in putting people last and the

environment first continues to fuel the fire of

environmental zealots.

Stephen Stanziano

Dept. of Water

Jersey City, NJ

If this ruling stands, it has implications far beyond the

siting of reservoirs. For instance, sewer outfalls, pipeline

crossings, etc.

Ben Russel

Business Manager

Charlotte-Mecklenburg, NC

It is anticipated that the current development will

continue to precipitate water crises nationally to the

extent that public interest, welfare, and economical

considerations will again meet priority consideration.

John Zimmerman

Water Division Manager

Manatee County Government, FL

5

An environmental impact that stalls or stops [our] project

will be significant because there are limited high quality

watershed sources in this area.

Gerald D. Gross

Utilities Operations Manager

Wichita Falls, TX

Balancing alternatives with environmental impact is a

necessary component of civilization.

J. Richard Tompkins

President

Middlesex Water Co., NJ

Environmental impacts resulting from building a reservoir,

from my experience, have always been significant.

Betty Gabbai

Gov’t Affairs Coordinator

City of Dallas, TX

I would hope a public water supply would hold at least an

equal priority with other environmental concerns.

Steve Himmel

Consumers Illinois Water Company

Kankakee, IL

6

LIST OF RESPONDENTS

PLANNING TO BUILD A RESERVOIR

RESPONDENT POPULATION

AFFECTED

TARRANT COUNTY, TX 1,000,000

GWINNETT COUNTY, GA 700,000

ALAMEDA, CO 500,000

DEKALB COUNTY, GA 500,000

MONROE COUNTY, NY 500,000

APPOMATTOX COUNTY, VA 350,000

LAREDO, TX 300,000

RI WATER RESOURCES BOARD, RI 300,000

TACOMA, WA 300,000

YORK WATER COMPANY, PA 225,000

SPRINGFIELD, IL 144,000

CITY OF AURORA, CO 100,000

SALEM, OR 100,000

SALT LAKE CITY, UT 100,000

WEBER BASIN WATER CON. DIST., UT 100,000

WICHITA FALLS, TX 100,000

NEW BRITAIN, CT 95,000

MANATEE COUNTY, FL 71,000

CONNECTICUT WATER CO., CT 50,000

CITY OF BROOMFIELD, CO 30,000

CENTENNIAL WATER AND

SAN. DIST., CO 25,000

DESERT WATER AGENCY, CA 25,000

METRO WATER SERVICES 15,000

CHERRY CREEK VALLEY, CO 10,000

ERIE, PA 10,000

ROCKFORD, IL 10,000

TOTAL 5,660,000