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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1765%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 823

## Text

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Supreme Court, U.

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|

No. 93-2045
| OF Fick

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.

11
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1765%3A6. Public record. Not legal advice.