# Appendix — City of New York, New York v. Catskill Mountain Chapter of Trout Unlimited (No. 06-729) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1793%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2006 ## Text oe _ ‘ * No. OFFI. JF “HE CLERK IN THE SUPREME COURT OF THE UNITED STATES Ciry OF NEW YORK, NEW YorK City DEPARTMENT OF ENVIRONMENTAL PROTECTION, and JOEL A. MIELE, SR.., Commissioner of Department of Environmental Protection. Petitioners, “V.- CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, LTD., THEODORE GORDON FLYFISHERS, INC., CATSKILL-DELA WARE NATURAL WATER ALLIANCE, INC., FEDERATED SPORTSMEN’S CLUBS OF ULSTER COUNTY, INC., RIVERKEEPER, INC., STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and ERIN M. CROTTY, Commissioner of the New York State Department of Environmental! Conservation, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit APPENDIX TO PETITION FOR A WRIT OF CERTIORARI LEONARD J. KOERNER,* MICHAEL A. CARDOZO, HILARY MELTZER, Corporation Counsel of the WILLIAM S. PLACHE, City of New York BRIDGET EICHINGER.** 100 Church Street of Counsel. New York, NY 10007 *Counsel of Record (212) 788-1585 ** Awaiting Admission November 20, 2006 . APPENDIX TO PETITION FOR WRIT OF CERTIORARI TABLE OF CONTENTS Decision of the United States Court of Appeals for the Second Circuit, Dated June 13, 2006 CHUM EGE FE FF Riviseentntienesinccicatentiersevenonmnioinaall Memorandum-Decision and Order of the United States District Court for the Northern District Of New York, Dated October 4, 2000.00.00. ccc eeeeeeeeeee Decision and Order of the United States District Court for the Northern District of New York, Dated January 19, 2001 ...............:ccececcsseeeseees Decision of the United States Court of Appeals for the Second Circuit, Dated October 3, 2001 CRITI UE EF o Fe EB vnesecsvetninescnscsdsvsvsenevixonsstsbusenamuatoiee Order of the United States District Court for the Northern District Of New YOK, LIMOd UMC. 4, ZOOL ..ccrcsrsvscvesovseresserssqnonevsvevessys Memorandum-Decision and Order of the United States District Court for the Northern District of New York, Dated ; February 6, 2003 (Reported at 244 F. Supp. 2d 41) .............. Ordez and Amended Judgment of the United States District Court for the Northern District of New York, Dated October 23, 2006 ..................c0cccseccseeees Order of the United States Court of Appeals for the Second Circuit, On Petition for Rehearing and Rehearing ee 2, CUED ssvcereceeseecoccsesesevecevesvsovecsoeserss A139 Relevant Provisions of Federal Water ec sconuovevevoreveoneseers A143 United States Environmental Protection Agency, Notice of Proposed Rulemaking, National Pollutant Discharge Elimination System (NPDES) Water Transfers Proposed Rule, 71 Fed. Reg. 32, 887, (proposed June 7, 2006) (to be codified at 40 C.F.R. pt. 122) (“Notice of Proposed Rulemaking”’)...............::ccsceseeeeeeeees Al?70 Ann Klee & Benjamin Grumbles, United States Environmental Protection Agency, Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers (Aug. 5, 2005) (“EPA Interpretation”) ................:cccesseeeeeeeees A205 DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DATED JUNE 13, 2006 (Reported at 451 F.3d 77) REPRODUCED FOLLOWING Al UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2005 (Submitted: November 21, 2005 Decided: June 13, 2006) Docket Nos. 03-7203 (L); 03-7253 (XAP) CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., THEODORE GORDON FLYFISHERS, INC., CATSKILL-DELAWARE NATURAL WATER ALLIANCE, INC., FEDER-ATED SPROTSMEN’S CLUBS OF USLTER COUNTY, INC. and RIVERKEEPER, INC., Plaintiffs-Appellees-Cross-Appellants, - VY .7 CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants-Third-Party-Plaintiffs- Appellants-Cross-Appellees, JOEL A. MIELE, SR., COMMISSIONER of the Department of Environmental Protection, Defendant-Appellant-Cross-Appellee, - V. - STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVA- TION, and ERIN M. CROTTY, Commissioner of the A2 New York State Department of Environmental Conservation, Third-Party-Defendants-Appellees. Before: WALKER, Chief Judge, OAKES and JACOBS, Circuit Judges. Appeal from a decision of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief Judge) holding the City of New York liable for violations of the Clean Water Act, imposing civil penalties, and awarding injunctive relief to Plaintiffs- Appellees-Cross-Appellants. AFFIRMED in part and REMANDED in part. KARL S. COPLAN, Pace _ Environmental Litigation Clinic, Inc. (Kara E. Murphy, Legal Intern, on the brief), White Plains, New York, for Plaintiffs-Appellees-Cross-Appellants. HILARY MELTZER, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, William S. Plache, on the brief), New York, New York, for Defendants’ -Third- Party-Plaintiffs- Appellants-Cross-Appellees. | JAMES M. TIERNEY, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, Michelle Aronowitz, Deputy Solicitor General, Peter H. Lehner, A3 Chief, Environmental Protection Bureau, Gordon J. Johnson, Deputy Bureau Chief, Robert H. Easton, Assistant Solicitor General, on the brief), Albany, New York, for Third- Party-Defendants-Appellees. JOHN M. WALKER, JR., Chief Judge: The City of New York (“the City”) operates the Shandaken Tunnel (“Shandaken Tunnel” or “the Tunnel”) as part of its water-management system that delivers drinking water to New York City and the immediate surrounding area. Water from the Tunnel, which is high in turbidity, discharges into the Esopus Creek (“Esopus Creek” or “the Creek’’), a trout stream used for flyfishing and other recreational activities. The Catskill Mountains Chapter of Trout Unlimited, Inc., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen’s Clubs of Ulster County, Inc., and Riverkeeper, Inc. (collectively “Catskills”) brought a citizen suit against the City, alleging that the City’s use of the Tunnel without a permit violated the Clean Water Act (“CWA” or “Act”), 33 U.S.C. §§ 1251 et seq. In an October 21, 2001, opinion, we held that the CWA permit: requirements apply to the Shandaken Tunnel discharges and remanded to the district court. On remand, the district court assessed a $5,749,000 civil penalty against the City and ordered the City to obtain a permit for the operation of the Tunnel. This appeal followed. BACKGROUND I. Relevant Clean Water Act Provisions The purpose of the CWA is “to restore and maintain the chemical, physical, and biological integnty of the Nation’s waters.” 33 U.S.C. § 1251(a). As part of the program to achieve this goal, the Act states that “the discharge of any- pollutant by any person shall be unlawful,” id. § 1311(a), unless it is done in compliance with other provisions of the Act. One of those other provisions, the National Pollutant Discharge Elimination System (“NPDES”), id. § 1342(a), establishes a permit system. Under this provision, the Environmental Protection Agency (“EPA”) or state administrators may issue a permit for the discharge of a pollutant at levels below the effluent limitations specified in the permit. Jd. The CWA broadly defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” /d. § 1362(12). Although the CWA establishes this federal permitting scheme, the Act also recognizes that states retain the primary role in planning the development and use of land and water resources, id. § 1251(b), allocating quantities of water within their jurisdictions, id. § 1251(g), and regulating water pollution, as long as those state regulations are not less stringent than the requirements set by the CWA, id. § 1370. Il. The Shandaken Tunnel and the Esopus Creek As part of the water system that supplies New York City with its dmnking water, the City maintains the Schoharie Reservoir in the Catskill Mountains. To deliver this water eventually to New York City, water from the Schoharie Reservoir is diverted through the eighteen-mile Shandaken Tunnel and discharged into the Esopus Creek. The Creek’s water, in tum, flows into the Ashokan Reservoir, through the Catskill Aqueduct, to a series of reservoirs and tunnels along the east side of the Hudson River, and eventually to New York City. Absent the man- made diversion through the Tunnel, water from the Schoharie Reservoir would never reach the Esopus Creek. Catskill Mountains Ch. of Trout Unltd. v. City of New York, 273 F.3d 481, 484 (2d Cir. 2001) (“Catskills I’’). Because water in the Schoharie Reservoir contains suspended solids from both natural and man-made causes, discharges from the Tunnel into the Creek are more turbid’ than the waters of the Esopus. This turbidity impairs use of the Esopus for fly fishing and other recreational activities. Pursuant to state regulations, the City has been studying ways to reduce the turbidity in the water discharged from the Tunnel but so far has failed to find a way to do so. Until this lawsuit, neither the EPA nor the New York State Department of Environmental Conservation (“NYDEC’”), the agency that enforces the CWA in New York State, had ever regulated the turbidity in the Tunnel under the CWA’s permitting scheme. Ill. Procedural History In March 2000, Catskills, recreational users of the Esopus Creek, brought this citizen suit under the CWA alleging that the City’s discharge of turbid water from the Tunnel violated 33 U.S.C. § 1311(a), which, as we said, prohibits “the discharge of any pollutant” ‘without a discharge permit. The district court dismissed the claim on the pleadings, holding that the discharge from the Tunnel did not constitute an ‘“‘addition” of a pollutant to the Creek under 33 U.S.C. § 1362(12). ' The parties do not contest that turbidity qualifies as a pollutant under the CWA. A6 In October 2001, we reversed after concluding that the discharge of water containing pollutants from one distinct water body into another is an “addition of [a] pollutant” under the CWA. Catskills /, 273 F.3d at 491-93. As a result, we determined that the discharge from the Tunnel into the Creek requires a permit. On remand from Catskills J, the district court granted summary judgment to the plaintiffs and went on to deter-mine the civil penalties to be assessed against the City. The district court concluded that no penalties should be imposed for the City’s actions prior to June 22, 2002, eight months after Catskills / put the City on notice that it needed a permit for the Shandaken discharges. Finding a delay of more than eight months unreasonable, however, the district court imposed the maximum penalty for the period from June 22, 2002, to December 31, 2002, when the City filed its permit application; the penalty totaled $5,749,000. This appeal followed. DISCUSSION In this appeal, the City asks us to reconsider our holding in Catskills J that the discharge of turbid water from the Shandaken Tunnel into the Esopus Creek requires a permit. The City also argues that the penalty of $5,749,000 is too high. In a cross-appeal, Catskills argues that amount Is too low. We are free to reconsider our holding in Catskills / if there are cogent, compelling reasons for doing do, such as a change in controlling law or newly discovered facts. United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000). Determining whether we should reconsider requires briefly revisiting our reasoning in Catskills 1. I. Catskills I In concluding that the transfer of turbid water from the Shandaken Tunnel to the Esopus Creek qualified as the “discharge of [a] pollutant,” 33 U.S.C. § 131 | (a), requiring an NPDES permit, Catskills I first noted the CWA’s broad definition of the “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” /d. § 1362(12). Because the Shandaken Tunnel “plainly qualifies as a point source,” Catskills I, 273 F.3d at 493, our holding rested, in principal part, on the meaning of “addition,” which the CWA leaves undefined. We decided that “‘addition” means the introduction into navigable water from the “outside world,” with the outside world being defined as “any place outside the particular water body to which pollutants are introduced.” /d. at 491. In reaching this result, we distinguished the “dams cases,” on which the City relied. In National Wildlife Federation v. Gorsuch,’ 693 F.2d 156 (D.C. Cir. 1982), and National Wildlife Federation v. Consumers Power Co. by 862 F.2d 580 (6th Cir. 1988), two sister circuits held that water taken from a water source and then released back into > This phrase comes from the definition of the word “addition” urged by the EPA on the court in National Wildlife Federation v. Gorsuch, 693 P.2d 156, 175 (D.C. Cir. 1982). In Gorsuch, the EPA argued that an “addition of a pollutant” takes place only if the point source introduces a pollutant into the water from the outside world. /d. * Gorsuch involved water released from a dam that, due to its impound- ment, had a low dissolved oxygen rate, variable water temperature, high concentrations of dissolved minerals and nutrients, increased sediment levels, and was supersaturated with air---attributes that can be harmful to downstream waters and the wildlife inhabiting them. /d. at 161-64. * Consumers Power involved water pumped from Lake Michigan through the turbines of a hydroelectric power plant and then released back into the lake-a process that pureed fish and other aquatic life and then released their remains as “polluiants” back into the lake. 862 F.2d at 583. that same source was not an “addition” to navigable waters under the CWA, despite the fact that the water so released contained “pollutants.” 693 F.2d at 183; 862 F.2d at 587. This case differed from the dams cases, we believed, because the Tunnel discharges water into the Creek from a source that is a different, distinct body of water. Catskills I, 273 F.2d at 491-92. In Catskills I, we analogized the dams cases to a soup ladle scooping soup out of a pot and returning it to that pot, a type of water transfer known as an intrabasin transfer. The Tunnel’s discharge, in contrast, was like scooping soup from one pot and depositing it in another pot, thereby adding soup to the second pot, an interbasin transfer. Interbasin transfers, we held in Catskills /, constitute “additions,” rendering the City’s reliance on the dams cases misplaced. /d. at 492. We also rejected the City’s “unitary water” theory of navigable waters, which posits that all of the navigable waters of the United States constitute a single water body, such that the transfer of water from any body of water that is part of the navigable waters to any other could never be an “addition.” We pointed out that this theory would lead to the absurd result that the transfer of water from a heavily polluted, even toxic, water body to one that was pristine via a point source would not constitute an “addition” of pollutants and would not be subject to the CWA’s NPDES permit requirement. /d. at 493. Catskills I rejected the “unitary water” theory as inconsistent with the ordinary meaning of the word “addition.” /d. Finally, we rejected the contention that the provisions of the CWA reserving power to the states could overcome the express permit requirement for water transfers that result in the addition of pollutants. We pointed out that “like many complex statutes ... the CWA balances a welter of consistent and inconsistent goals” but that “none of the statute’s broad purposes sways us from what we find to be the plain meaning of its text.” /d. at 494. AQ Il. Intervening Legal Developments Following Catskills I, there have been two relevant legal developments. The Supreme Court decided South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), and the EPA issued an agency interpretation addressing the applicability of the CWA’s NPDES permit requirement to water transfers such as the one at issue in this case. Miccosukee was a citizen suit contending that an NPDES permit is necessary for the South Florida Water Management District to operate a pump that conveys water from a polluted canal to an undeveloped wetland. The pump serves both to prevent the basin surrounding the canal from flooding and to preserve the wetland area. /d. at 100-01. Consistent with the dams cases, Miccosukee held that if the canal and the wetlands are not meaningfully distinct water bodies-an unresolved factual question-no NPDES permit is required. /d. at 112; cf S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 126 S. Ct. 1843, 1850 (2006) (“[I]f two identified volumes of water are simply two parts of the same water body, pumping water from one into the other cannot constitute an “addition” of pollutants.” (quoting Miccosukee, 541 U.S. at 109) ). On August 5, 2005, the EPA issued an agency interpretation regarding whether the movement of pollutants by a water transfer from one navigable water to a separate one is the “addition” of a pollutant subjecting the activity to the NPDES permitting requirement. According to the EPA, several provisions of the CWA indicate Congress’s intent that such transfers be regulated by the states, not by the federal NPDES program. The EPA interpretation argues that, rather than primarily focusing on the meaning of the word “addition,” as we did in Catskills I, a “holistic” view of the statute that takes this intent into account is appropriate. The City concedes that this EPA interpretation is not entitled to Chevron deference. See Chevron U.S.A., Inc. v. Natural Res. Def., 467 U.S. 837 (1984). Instead, the deference described in Skidmore v. Swift & Co., 323 US. 134 (1944), and United States v. Mead Corp., 533 U.S. 218 (2001), is applicable. We thus defer to the agency interpre- tation according to its “‘power to persuade.”” Mead, 529 U.S. at 235 (quoting Skidmore, 323 U.S. at 140). III. Reconsideration of Catskills I We turn to the City’s request that we reconsider our holding in Catskills /. Rather than offering “compelling and cogent” reasons for reconsideration, however, the City basically serves us warmed-up arguments that we rejected in Catskills [, with the additional contention that either the Supreme Court’s Miccosukee decision, the EPA interpreta- tion, or both compel a result different from the one we reached earlier. We disagree. The City first argues that new evidence developed below and the Supreme Court’s decision in Miccosukee invalidate the distinction between intrabasin and interbasin water transfers. The “new evidence” the City points to simply shows that the release of water from a dam into down-stream water is no less likely to add pollutants as would a transfer of water from a distinct water body. Having considered the dams cases in Catskills I, we were aware of the presence of pollutants in intrabasin transfers. Gorsuch includes an extensive discussion of the nature of water quality changes wrought by dammed water. 693 F.2d at 161-64. And in Consumers Power, the water at issue contained fish that were pulverized as they passed through the turbines of a hydroelectric power plant and then were reintroduced into Lake Michigan as biological waste. 862 F.2d at 582. Nonetheless, Catskills | concluded that, despite the presence of pollutants in both interbasin and intrabasin transfers, interbasin transfers are properly distinguished All because they “‘add” pollutants to the navigable waters. See Catskills ', 273 F.3d at 492. This has not changed. Nor does the Supreme Court’s decision in Miccosukee render inter- and _ intra-basin _ transfers indistinguishable. Miccosukee cited with approval our “soup ladle” analogy and the distinction between inter- and intra-basin transfers. 541 U.S. at 109-10. The Court remanded the case to the district court to determine whether the water bodies in question were “two pots of soup, not one.” /d.; cf. S.D. Warren Co., 126 S. Ct. at 1850 n.6. This remand would be unnecessary if there were no legally significant distinction between inter- and _intra-basin transfers. The City also reasserts the unitary-water theory of navigable waters. Our rejection of this theory in Catskills 1, however, is supported by Miccosukee, not undermined by it. In that case, the Supreme Court pointed out that several provisions of the CWA seem to distinguish among water bodies that are part of the navigable waters of the United States, implying that, at least in the context of the CWA, the unitary-water theory has no place. 541 U.S. at 105-09. Miccosukee also noted that the EPA has never endorsed the theory in any administrative documents. /d. at 107. Indeed, the Supreme Court pointed out that “the agency once reached the opposite conclusion.” /d. Thus, Miccosukee did no more than note the existence of the theory and raise possible arguments against it. This does not constitute a change of controlling jaw warranting reconsideration of this court’s previous decision on the issue. Finally, the City points to the “holistic” argument, reflected in the EPA’s 2005 agency interpretation,” to assert > As noted above, the EPA’s agency interpretation is entitled to deference only insofar as it has the power to persuade. See Skidmore, 323 US. at 140. Because the EPA and the City assert the same Al2 that the proper allocation of rights and responsibilities between the states and the federal government for water regulation necessitates a reconsideration of our holding in Catskills I. This proposition is supported by amicus curiae briefs filed by western states who fear that the Catskills ] rule will upend state regulation of water rights. The argument relies on sections 101(g) and 510 of the CWA, 33 U.S.C. §§ 1251(g), 1370, both of which expressly reserve the authority of states over the water within their jurisdiction, as well as section 304(f) of the CWA, 33 U.S.C. § 1314(f), which governs non-point- source pollution. Section 101(g) provides that “the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired.” Section 510 states that “[e]xcept as expressly provided in this chapter, nothing in this chapter shall . . . be construed as impairing or in any manner affecting any nght or jurisdiction of the States with respect to the waters . :. of such States.” Because, according to the City, there are no feasible means of reducing the pollution in the Tunnel, a permit requirement would effectively amount to a ban on the transfer of water from the Tunnel to the Creek and thereby interfere with New York’s statutory water allocation rights. This argument, too, was raised by the City in Catskills I, albeit less elaborately, and, as with the. interbasin/ intrabasin distinction and the unitary-waters theory, Miccosukee fails to alter the legal landscape to support the “holistic” theory. The power of the states to allocate quantities of water within their borders is not contentions on this point, we address the City and the EPA’s position as one. For reasons discussed below, we do not find the argument persuasive and therefore decline to defer to the EPA. Al3 inconsistent with federal regulation of water quality. Section 510 provides for the prescrvation of the preexisting rights of states not in conflict with the other requirements of the CWA (“except as expressly proved in this chapter”). Indeed, the Supreme Court has held that “{s]ections 101(g) and 510(2) preserve the authority of each State to allocate water quantity as between users; they do not limit the scope of water pollution controls...” PUD No. 1 v. Wash. Dep't of Ecology, 511 U.S. 700, 720 (1994)., To be sure, Miccosukee acknowledged the possibility that “construing the NPDES program to cover such transfers would . . . raise the costs of water distribution prohibitively, and violate” section 101(g). Miccosukee, 541 U.S. at 108. But in the next sentence, the Court recognized that, despite their potential cost, such permits nevertheless might be neces- sary to protect water quality. /d. Nor does Miccosukee support the EPA and the City’s argument that the non-point-source provisions of the- CWA indicate congressional intent to leave interbasin water transfers outside the NPDES permitting scheme. Section 304(f) of the CWA directs the EPA to study and make recommendations for the regulation of pollutants spread by non-point sources, such as “changes in the movement, flow, or circulation of any navigable waters or ground waters, including changes caused by the construction of . . . flow diversion facilities.” 33 U.S.C. § 1314(f)(2)(F). From this language, the EPA and the City claim that Congress intended that changes in the circulation of navigable waters caused by the construction of “flow diversion facilities,” such as the Tunnel, be exempt from the permit requirements that apply to point sources. As the Supreme Court pointed out in Miccosukee, however, “1314(f(2)(F) does not explicitly exempt nonpoint pollution sources from the NPDES program if they also fall within the ‘point source’ definition.” 541 U.S. at 106. In the end, while the City contends that nothing in the text of the CWA supports a permit requirement for interbasin transfers of pollutants, these “holistic” arguments about the allocation of state and federal nghts, said to be rooted in the structure of the statute, simply overlook its plain language. NPDES permits are required for “the discharge of any pollutant,” 33 U.S.C. § 1311(a), which is defined as “any addition of any pollutant to navigable waters from any point source,” id. § 1362(12). It is the meaning of the word “addition” upon which the outcome of Catskills I turned and which has not changed, despite the City’s attempts to shift attention away from the text of the CWA to its context. In Catskills I, we pointed out. that complex statutes often have seemingly inconsistent goals that must be balanced. 273 F.3d at 494. The CWA seeks to achieve water allocation goals as well as to restore and maintain the quality of the nation’s waters. The City and the EPA would have us tip the balance toward the alloca- tion goals. But in honoring the text, we adhere to the balance that Congress has struck and remains free to change. The City’s final argument for reconsideration is that other provisions of federal and state law are more appropri- ate means of regulating the water discharged from the Shandaken Tunnel. The City points to the Safe Drinking Water Act, which limits the levels of contaminants that are allowed in public drinking water; section 303(d) of the CWA, which regulates pollution levels resulting from pollution from both point and non-point sources; and various provisions of state law that regulate water quality. While these provisions no doubt contribute to the goals of pollution reduction and regulation, the City does not explain how their existence invalidates a separate, inde- pendent requirement imposed by the permitting scheme of the CWA. Al5 The City’s plea for reconsideration appears to rest upon the assumption that regulating the discharge from the Tunnel would effectively require that the flow be stopped altogether. This claim seems to us exaggerated. We think the flexibility built into the CWA and the NPDES permit scheme, a flexibility that the City has endorsed in a related proceeding,® will allow federal authority over quality regulation and state authority over quantity allocation to coexist without materially impairing either. We conclude this section with a somewhat detailed and technical accounting of the flexibilities that exist. Effluent limitations contained in NPDES permits fall into two categories: technology-based effluent _limits’ (“TBELs”) and water-quality-based effluent limits (“WQBELs”).® Where, as here, no applicable national TBELs have been set, the permit-writer may set TBELs using best professional judgment. See 33 US.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3. In doing so, NYDEC will consider the available technologies, costs in relation to effluent reduction benefits, engineering aspects of various control techniques, available best management practices, and nonwater-quality environmental impacts. See 40 C.F.R. § 125.3(c), (d). This process thus affords the permit-writer “considerable flexibility in establishing permit terms and * The City has acknowledged the NPDES system's flexibility in hear- ings related to its permit application. See /n re Application of the New York Cite Department of Environmental Protection, DEC Application No. 3-5150-00420/0000!1, 2005 N.Y. Envy. Lexis 40, at *24, *26 (June 27, 2005) (Ruling on Issues and Party Status). ’ Technology-based limits are based on the effluent levels that can be achieved through the use of various water treatment technologies. See 40 CFR. § 125.3. * Water-quality-based limits are those limits needed to ensure the appropriate water quality of the receiving water body. That water quality is specified by the state in which the water body is located. conditions.” EPA, NPDES Permit Writers’ Manual 69 (1996). Only if the TBELs established by the NYDEC prove insufficient to achieve the water quality standards set by the state for the Esopus Creek’ will more stringent WOBELs be adopted. 33 U.S.C. § 1312(a); 40 C.F.R. § 122.44(d). If the City is unable to comply with the effluent limitations adopted by the NYDEC, CWA provisions and implementing regulations still provide means of enabling the NYDEC to issue a valid permit to the City. The permit may include a schedule of compliance, allowing the permittee to achieve compliance over time. 33 U.S.C. § 1362(17); 40 C.F.R. § 122.47. Indeed, the current draft permit prepared by the NYDEC in this case includes a compliance schedule that requires the City to investigate both technological and structural solutions to the turbidity problem and to implement those solutions according to a specified schedule. See NYS Env. Notice Bulletin, Notice of Completed Application for Shandaken Tunnel Outlet 7-9 (August 4, 2004). Second, the NYDEC may allow a variance to WQBELs if the permittee demonstrates that achieving the effluent limitation contained in the permit is not feasibie. 40 C.F.R. § 131.13; N.Y. Comp. Codes R. & Regs. tit. 6, § 702.17(b).'° A variance is temporary and must include ” With respect to turbidity for water bodies like the Esopus Creek, New York’s water quality standards require that there be “[n]Jo increase that will cause a substantial visible contrast to natural conditions.” N.Y. Comp. Codes R. & Regs. tit. 6. § 703.2. ’ Under N.Y. Comp. Codes R. & Regs. tit. 6, ti 702.17, the City might be eligible for a variance on the basis that its compliance with the existing standard is precluded by “naturally occurring pollutant concentrations,” id. § 702.17(b)(1); “human-caused . . . sources of pollution,” id. § 702.17(b){3); “dams, diversions or other types of hydrologic modifications,” id. § 702. 17(b)(4); or the fact that Al7 conditions to assure that the permittee makes “reasonable progress . . . toward achieving the [original] effluent limitations.” Jd. § 702.17(e)(2). It may be renewed subject to the same requirements. /d. § 702.17(g). Because the City is investigating means of reducing the turbidity of the Tunnel’s discharge pursuant to state requirements, a temporary variance might well provide the time necessary to implement any reasonable and feasible solutions to the turbidity problem. The draft Shandaken Tunnel permit issued by the NYDEC on August 4, 2004, illustrates additional flexibilities. The draft permit varies turbidity level restrictions by season, accepting higher levels at times when the natural turbidity level of the Creek is higher; it also contains exemptions from the effluent limitations when necessary to avoid drought conditions, to remedy emergency threats, to avert threats to public health or safety, or to allow repairs to the Schoharie Reservoir. See NYS Env. Notice Bulletin, Notice of Completed Application for Shandaken Tunnel Outlet 3, 4 n.2 (August 4, 2004). The draft permit shows that the NPDES permit scheme can ensure that the water discharged from the Shandaken Tunnel will continue to meet the City’s needs without unnecessarily sacrificing progress toward water quality goals. We find the City’s position, that federal regulation of interbasin water transfers will lead.to the © termination of those transfers in contravention of the rights explicitly reserved to the states, to be alarmist and unwarranted. compliance would “result in substantial and widespread economic and social impact,” id. § 702,17(11)(6 ). At bottom, the City’s arguments for reconsideration of our holding in Catskills I are simply embellishments of those made in that case. Neither these arguments nor any intervening developments lead us to conclude that our earlier holding was reached in error or should otherwise be modified. We note that every other court faced with this issue has reached the same conclusion. See N. Plains Res. Council v. Fidelity Exploration & Dev. Co.,'' 325 F.3d 1155 (9th Cir. 2003); Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist.,'* 280 F.3d 1364 (1 1th Cir. 2002); Dubois v. U.S. Dep't ofAgric.,'? 102 F.3d 1273 (ist Cir. 1996). While we recognize the incremental administrative burden our interpretation entails, we have little doubt that it nevertheless permits the City to deliver drinking water to its citizens while furthering the CWA’s goal to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). IV. Civil Penalty '' Northern Plains held that the discharges of groundwater derived from the extraction of coal bed methane into a river requires an NPDES permit. The court reasoned that the alteration of the chemical integrity of the river resulting from those discharges constituted an addition of a pollutant because such groundwater would not have flowed into the river but for the company’s methane extraction processes. 325 F.3d at 1163. '? Before the Supreme Court granted certiorari in Miccosukee, the Eleventh Circuit held that the transfer of water that was high in phosphorus from a canal to a wetlands area required an NPDES permit. 280 F.3d at 1366, 1368-69. '’ Dubois held that, when a ski area pumped water from a polluted river and discharged it into a pristine pond into which it otherwise would not (continued. ..) have flowed as part of a snow-making process, an NPDES permit was required for the discharge. 102 F.3d at 1296-99. Al9 Both sides attack the $5,749,000 civil penalty imposed on the City by the district court. District courts have broad discretion in calculating civil penalties under the CWA. See Tull v. United States, 481 U.S. 412, 427 (1987) (noting that “highly discretionary calculations that take into account multiple factors are necessary in order to set civil penalties under the Clean Water Act’); United States v. Smithfield Foods, Inc., 191 F.3d 5 16, 526 (4th Cir. 1999); Hawaii's Thousand Friends v. Honolulu, 821 F. Supp. 1368, 1395 (D. Haw. 1993). A district court’s findings of fact in support of a CWA penaity are reviewed for clear error, e.g., Smithfield Foods, Inc., 191 F.3d at 526; Sierra Club, Lone Star Ch. v. Cedar Point Oil Co., 73 F.3d 546, 573 (Sth Cir. 1996); Pub. Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 79 (3d Cit.. 1990), and the district court’s determination of the penalty based on those facts is reviewed for abuse of discretion, e.g., Smithfield Foods, 191 F.3d at 526; Sierra Club, 73 F.3d at 573. In calculating civil penalties under the CWA, the court may begin either with the violator’s estimated economic benefit from noncompliance (known as the “bottom-up” method) or with the statutory maximum allowable penalty (known as the “top-down” method). E. g., Smithfield Foods, 191 F.3d at 528 & n.7; United States v. Man. Auth. of Union Twp., 150 F.3d 259, 265 (3d Cir. 1998). This starting figure then may be adjusted after considering the six factors enumerated in section 309(d) of the CWA: (1) the seriousness of the violations; (2) the economic benefit resulting from the violation; (3) any history of violations; (4) good-faith efforts to comply with applicable requirements; (5) the economic impact of the penalty on the violator; and (6) other matters as justice may require. 33 U.S.C. § 1319(d). E.g., Sierra Club, 73 F.3d at 528, n.7. The court below opted to use the “top-down’”’ method. Although neither party objected to this general approach, both sides take issue with the details of its implementation. The district court began with the maximum statutory penalty and reduced that number due to factors mitigating in the City’s favor. First, the district court found that the seriousness factor mitigated in favor of the City. Second, because the City’s belief that it did not need a permit to operate the Tunnel was reasonable until the October 2001 decision of this court, the district court determined that the City should not be penalized for its history of violations. Third, the district court credited the City’s ongoing efforts to reduce the turbidity of the water in the Tunnel pursuant to non-CWA regulation and _ its eventual application for a NPDES permit as indicating a good-faith effort to comply with applicable requirements. Finally, the district court considered the City’s reasonable belief that a CWA permit was not necessary to be a mitigating factor. Catskills faults the district court for its determination that the seriousness factor mitigated in favor of the City. This determination was based on three considerations: the pollution at issue resulted from natural conditions that caused turbidity and not toxic pollutants; there was no evidence that downstream fish were adversely affected by the discharge; and finally, the discharge, while turbid, actually improved the habitat for trout by raising low water levels. Because these findings have evidentiary support, we will not disturb them or the district court’s conclusiem that, taken together, they were a mitigating facter. Both parties take issue with the district court’s June 22, 2002, starting date for penalties, after which the court imposed the maximum penalty. Catskills argues that the starting date should have been October 21, 2001, the date of Catskills 1, while the City contends that December 2002 would have been reasonable and that, in any event, the mitigating factors should have reduced the penalty imposed after the starting date. The district court did impose the A21 maximum daily penalty, but for only about nine per cent of the period for which the district court could have penalized the City.'* The district court’s choice of starting date accounted both for a reasonable time for the City to come into compliance. with the CWA and for the mitigating factors; it will be sustained. Both parties also attack the penalty figure based on the “economic benefit resulting from the violations” factor. The City argues that it is receiving no economic benefit from operating the Tunnel without a permit, so this factor should be treated as a mitigating factor. Catskills, on the other hand, argues that the City reaped a benefit by not having to build a filtration plant to screen the turbidity from the Tunnel’s water, which Catskills says would cost $27 million. Even assuming the feasibility of such a plant, as to which the district court was skeptical, the district court found that construction of the plant would not have begun until 1995 at the earliest. Therefore, only costs that would have been incurred after that date, a figure consider-ably below $27 million, would be appropnately considered. In addition, there is a substantial question as to whether the City should be faulted for not building a plant during a period (prior to Catskills f) in which it did not believe it was in violation of the CWA. Considering the evidence on both sides of this issue, the district court did not abuse its discretion in determining that the issue of cost savings to the City from not building a plant should be deemed neither a mitigating factor nor a cause for in-creased penalties. Finally, Catskills challenges the City’s good faith belief that it did not need a permit to operate the Tunnel. '* Catskills filed its complaint on March 31, 2000. Because the CWA has a five--year statute of limitations, 28 U.S.C. ti 2462, that is tolled sixty days before the filing of a complaint, Sierra Club v. Chevron U.S.A.. Inc., 834 F.2d 1517, 1524 (9th Cir. 1987), January 30, 1995, is the date on which the City became liable for penalties. A??? The district court’s determination that the City had such a good faith belief, based on credibility assessments, 1s deserving of deference and nothing in the record leads us to question it. Neither the EPA nor the NYDEC had ever indicated the necessity of a permit. The district court’s decision not to penalize the City for a reasonable, albeit incorrect, interpretation of a statute is not an abuse of discretion. In arriving at the penalty imposed below, the district court carefully considered the six factors laid out in section 309(d) of the CWA, relied on facts not clearly erroneous, and did not abuse its discretion in deciding the penalty. We have, however, uncovered a calculation error. The district court stated that the maximum statutory penalty for the final 131 days of 2002 was $31,500 per day. In fact, the maximum daily penalty remained $27,500 until March of 2004. 40 C.F.R. § 19.4. Thus, the maximum possible penalty was $62,725,000, not $63,249,000 as stated by the district court. Had the district court been aware that its initial calculation of the statutory maximum was $524,000 too high, it might have reduced the penalty by that amount. Or, even being aware of the true statutory maximum, it might have imposed the same penalty. Or it might have arrived at a penalty somewhere in between. Because we have no way to determine how the district court’s calculation of the penalty would have differed, if at all, had it accurately determined the maximum statutory penalty, we remand the case for recalculation of the penalty in light of the true statutory maximum. CONCLUSION For the foregoing reasons, we affirm the district court’s judgment except as to the amount of the civil penalty imposed on the City of New York and remand the case to the district court to recalculate that penalty. A23 MEMORANDUM-DECISION AND ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF THE NEW YORK, DATED OCTOBER 4, 2000 REPRODUCED FOLLOWING UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., THEODORE GORDON FLYFISHERS, INC., CATSKILLDELAWARE NATURAL WATER ALLIANCE, INC., FEDERATED SPORTSMEN’S CLUBS OF ULSTER COUNTY, INC., and RIVERKEEPER, INC., Plaintuff(s), -~against- THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, and JOEL A. MIELE, SR., COMMISSIONER OF DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant(s). SEE ee i te et i le te AVE 1:00-CV- 511 (FJS/ RFT) APPEARANCES OF COUNSEL PACE KARL S. ENVIRONMENTAL COPLAN, ESQ.' LITIGATION CLINIC, INC, 78 North Broadway White Plains, New York 10603 Attorneys for Plaintiffs CITY OF NEW YORK SUSAN C. OFFICE OF MOON, ESQ. CORPORATION COUNSEL 100 Church Street New York, New York 10007-2601 Attorneys for Defendants SCULLIN, Chief Judge U.S. DISTRICT COURT - N.D. OF N.Y. FILED OCTOBER 6, 2000, LAWRENCE K. BAERMAN, CLERK-SYRACUSE ! ’ ~ ° _ With the Court’s permission, Basil Saggos, a law student, argued on Plaintiffs’ behalt A26 MEMORANDUM-DECISION AND ORDER I. INTRODUCTION Presently before the Court are Defendants’ motions (1) to dismiss Plaintiffs’ turbidity and thermal discharge claims, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction; (2) to dismiss Plaintiff's suspended solids claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted; and (3) for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. On September 22, 2000, the Court heard oral argument on these motions and reserved decision. The following constitutes the Court’s analysis and conclusions with respect to these motions. If, BACKGROUND On November 20, 1998, Plaintiffs mailed notice of alleged violations of the Clean Water Act (“CWA”) and of Plaintiffs’ intent to file suit to the Administrator of the United States Environmental Protection Agency, the New York State Department of Environmental Conservation, and to Defendants as required by Section 505(b)(I)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A). Fourteen months later, Plainuffs filed the instant complaint. Plaintiffs brought this citizen suit seeking declaratory and injunctive relief under Section 301 of the CWA, 33 U.S.C. § 1311 (a), against Defendants for allegedly violating the CWA by their unpermitted and unlawful discharge of pollutants from the Shandaken Tunnel into Esopus Creek. Defendants operate the Shandaken Tunnel as part of the New York City Catskill Water Supply System. See Complaint at § 20. The Shandaken Tunnel begins at the Schoharie Reservoir in Delaware County, passes through Green County, and into Ulster County where it discharges A27 into Esopus Creek. See id. at 4 19. When the Shandaken Tunnel is in operation, the intake pipe accepts water from the Schoharie Reservoir and adds it into the Shandaken Tunnel. The water flows through the Shandaken Tunnel and is discharged into Esopus Creek. See id. at 4 21. In the absence of the Shandaken Tunnel, water from the Schoharie Reservoir would not reach Esopus Creek because Esopus Creek is located in a different watershed than the Schoharie Reservoir. See id. at 4] 22, 37. The water in Esopus Creek is naturally more clear, or less turbid and lower in suspended solids, than the water of the Schoharie basin. See id. at { 23. The New York State Department of Environmental Conservation (“DEC”) has designated Esopus Creek, between the outlet of the Shandaken Tunnel and the inlet of the Ashokan Reservoir, as a Class A(T) stream. This classification signifies high quality water that is suitable for a trout fishery. See id. at 4 22. The discharge from the Shandaken Tunnel into Esopus Creek contains a high level of turbidity and suspended solids in the form of fine red clay particles. See id. at 44 27- 28. The discharge from the Shandaken Tunnel periodically contains elevated temperatures that stress trout populations in Esopus Creek. See id. at 4 30. The City of New York has neither applied for, nor been granted, a National Pollutant Discharge Elimination System (“NPDES”) or a State Pollutant Discharge Elimination System (“SPDES”) permit for its discharges into Esopus Creek. See id. at 4 35. Plaintiffs assert . that Defendants have violated and will continue to violate “an effluent standard or limitation” under § 505(a)(1)(A) of the CWA, 33 U.S.C. § 1365(a)(1 (A), because of their illegal and unpermitted discharge from the Shandaken Tunnel into Esopus Creek. Sce id. at 4 38. lil. DISCUSSION A. Subject Matter Jurisdiction The CWA authorizes a citizen to bring a suit in federal court against any person who is alleged to be in violation of “‘an effluent standard or limitation” as defined by the CWA. To commence a suit, however, a citizen must comply with § 1365(b), which provides, in pertinent part, No action may be commenced - (1) under subsection (a)(1) of this section - (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator [of the EPA], (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, .. . 33 U.S.C. § 1365(b). The purpose of this notice requirement “‘is to give [the alleged violator] an opportunity to bring itself into compliance with the Act and thus likewise render unnecessary a citizen suit.”* Atlantic States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 818 (7"" Cir. - 1997) (quoting [Gwaltrey,}] 484 U.S. at 60, 108 S. Ct at 383) (other citation omitted}. In the preseat case, Defendants do not dispute that Plaintiffs sent them a notice letter. Rather, they claim that Plaintiffs’ notice letter lacks the specificity required by the CWA and its regulaticns to put Defendants on notice of the violations upon which Plaintiffs intended to sue. Specifically, Defendants contend that Plaintiffs’ letter failed to identify the specific standard, limitation or order alleged to have been violated and failed to list two of the A29 pollutants -- turbidity and thermal discharge - which, together with suspended solids, form the basis of Plaintiffs’ complaint. Due to this alleged lack of specificity, Defendants argue that the notice is legally insufficient and, therefore, the Court lacks subject matter jurisdiction over Plaintiff's turbidity and thermal discharge claims. Defendants rely upon Hallstrom v. Tillamook County, 493 U.S. 20 41989), to support their position that this Court lacks subject matter jurisdiction over Plaintiffs’ turbidity and thermal discharge claims because Plaintiffs’ notice letter lacks the necessary specificity. The issue before the Court in Hallstrom was whether compliance with the Resource Conservation and Recovery Act’s (“RCRA”) 60-day notice provision (modeled on the CWA’s notice provision) was “a mandatory precondition to suit or [could] be disregarded by the district court at its discretion.” Id. at 23. The Court concluded that “{u]nder a literal reading of the statute, compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit.” Id. at 26. Unlike the situation here, however, the plaintiff in Hallstrom sent no notice letter prior to commencing suit. Therefore, the Court in Hallstrom had no occasion to address the sufficiency of the contents of a RCRA notice. Accordingly, Hallstrorn is not dispositive of the issue before this Court. What are dispositive, however, are the EPA’s regulations which set forth the notice requirements: * There is no question that had Plaintiffs not complied with the CWA’s 60-day notice requirement, the Court would have to dismiss the complaint (even if Defendants had learned about the claims in another way). Plaintiffs, however, did provide Defendants with notice. Thus, the question is whether the Court must dismiss the turbidity and thermal discharge claims because. these claims were not explicitly mentioned in Plaintiffs’ notice letter. A30 Notice regarding an alleged violation of an.effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or _ persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 135.3(a). Defendants argue that Plaintiffs’ notice letter fails to meet those requirements because (1) it fails to provide notice of the “parameters” or “types” of violations which Plaintiffs assert in their complaint; (2) it mentions neither turbidity nor thermal discharge; and (3) it fails to disclose the activities which allegedly constitute these regulatory violations. Plaintiffs’ notice letter states, in pertinent part, [Plaintiffs] believe that the City of New York has violated and continues to violate ‘an effluent standard or limitation” under section 505(a)(1)(A), by discharging pollutants from a point source without a permit in violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a). Based on data collected by the Catskill Delaware Natural Water Alliance, Inc., Complainants believe that the City of New York has discharged from the Shandaken aqueduct, and continues to discharge, pollutants in the form of Total Suspended Solids and Settleable Solids into the Esopus Creek, a class A stream, 6 NYCRR § 862.6. These violations have occurred and continue to occur every day that the Shandaken tunnel delivers water into the Esopus Creek, which has been every day that the tunnel operates for at least the past five years (the statute of limitations period under the Clean Water Act). . See Plaintiffs’ Ntice Letter, attached as Exhibit “B” to the Affidavit of Susan Moon, dated May 25, 2000. Plaintiffs’ notice letter clearly provides the notice required by 40 C.F.R. § 135.3(a), at least with respect to suspended and settleable solids. The only issue, therefore, is whether turbidity and thermal discharges -- which are not explicitly mentioned in the notice letter - are similar enough to suspended and settleable solids to have put Defendants on notice that these pollutants also formed the basis for Plaintiffs’ complaint. In support of their claim that turbidity and thermal discharge are inseparable from suspended solids, Plaintiffs direct the Court to the common meaning of these terms. In this regard, Plaintiffs assert that the term “suspended solids” is commonly equated with turbidity. See Plaintiffs’ Memorandum of Law at 19 (citing The American Heritage Dictionary of the English Language (Copyright 1996, Houghton Mifflin Company) (“turbid is defined as ‘having sediment or foreign particles stirred up or suspended; * Plaintiffs’ notice letter also contains the full names, addresses, and telephone numbers of all Plaintiffs. A32 muddy,’ while the word turbidity has the meaning ‘muddiness created by stirring up sediment or having foreign particles suspended.”*). Moreover, Plaintiffs claim that the EPA, Office of Water, on its website, states that “higher turbidity increases water temperatures because suspended particles absorb more heat.” See id, Based upon these definitions, Plaintiffs conclude that “suspended solids, turbidity and thermal discharges are inseparably linked in such a way that the notice of suspended solids was sufficient to place Defendants on notice thereby satisfying its purpose.” Id. at 10-11. Based upon the relationship between suspended solids (which were referenced in the notice letter) and their effect on turbidity and water temperature, the Court finds that Plaintiffs’ notice letter sufficiently notified Defendants of these claims and, therefore, complies with § 135.3(a). Accordingly, the Court denies Defendants’ motion to dismiss Plaintiffs’ turbidity and thermal discharge claims for lack of subject matter jurésdiction. | B. Defendants’ Motion to Dismiss for Failure to State a Claim To state a claim for the improper discharge of a pollutant without an NPDES permit pursuant to § 301 of the CWA, “five elements must be present: (1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source.” National Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982). Defendants contend that Plaintiffs have failed to allege sufficient facts to state a claim that the discharge of suspended sediments into Esopus Creck is an illegal and unpermitted discharge within the meaning of the CWA. Specificaily, Defendants contend that Plaintiffs’ failure to state in their complaint that suspended sediments are a “pollutant” is fatal to their claim. A careful reading of Plaintiffs’ complaint, however, demonstrates that Plaintiffs have alleged A33 sufficient facts from which it can be inferred that suspended sediments are a pollutant. In this regard, Plaintiffs’ complaint states that “Defendant’s discharges of suspended solids, turbidity, and heat into the Esopus Creek are illegal and unpermitted discharges within the meaning of section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a).” See Complaint at 39. Since a discharge is illegal only if the discharged substance is a pollutant, it can reasonably be inferred from the complaint that Plaintiffs are alleging that suspended solids are a pollutant within the meaning of the CWA. Moreover, because in addressing a motion to dismiss the Court must draw all reasonable inferences in Plaintiffs’ favor, the Court concludes that Plaintiffs have sufficiently alleged that suspended solids are a pollutant for purposes of their CWA claims. More troubling, and ultimately dispositive of this motion, is Defendants’ contention that Plaintiffs have failed to allege that the discharge of suspended solids, turbidity and heat into Esopus Creek is “an addition” of pollutants “from” a point source. According to Defendants, an “addition” occurs only if “the point source itself physically introduces a pollutant into water from the outside world.” See Defendants’ Reply Memorandum of Law at 2 (quoting Nat’] Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165, 174-75 (D.C. Cir. 1982)). Therefore, Defendants argue that Plaintiffs’ allegation that Defendants’ redirection of water, which already contains suspended solids, from one body of water to another constitutes a point source discharge is not sufficient to establish an “addition” for purposes of the CWA. See Defendants’ Memorandum of Law at 14. In response, Plaintiffs assert that Defendants are adding pollutants in the form of suspended solids, turbidity and heat from the Schohane Reservoir through the Shandaken Tunnel into Esopus Creek. They ciaimn that “{t]his type of ‘addition’ is precisely what the Clean Water Act is intended to prohibit, since it has turned a renowned A34 trout stream into a water body that is now unsuitable for trout fishing.” See Plaintiffs’ Memorandum of Law at 13- 14. Therefore, Plaintiffs assert that “in order to continue the discharge of suspended solids, turbidity and elevated temperatures into the Esopus Creek within the limits of the law, [Defendants] must be required to apply for and be granted a NPDES/SPDES permit,” as required by § 402 of the CWA, 33 U.S.C. § 1342. See id. at 14." The only case that arguably supports Plaintiffs’ position is Dubois v. United States Dep’t of Agric., 102 F.3d 1273 (1996). Plaintiffs rely upon Dubois for the proposition that Defendants’ diversion of water is an “addition” because the Schoharie Reservoir and Esopus Creek are two separate bodies of water. In response, Defendants rely upon National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), and National Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6" Cir. 1988), to support their argument that the mere diversion of water without more does not constitute an “addition.” Although none of these cases are directly on point, they offer some insight into factors courts have considered to determine what constitutes an “addition” for purposes of the CWA. In Dubois, the Loon Mountain Recreation Corporation drew water from Loon Pond and the Pemigewasset River for its snowmaking operations. After it - had used the water to pressurize and prevent freezing in its snowmaking equipment, it discharged the water into Loon Pond. * Plaintiffs also contend that they have adequately alleged the “addition” of a pollutant because water from the Schoharie Reservoir would not reach Esopus Creek in the absence of the Shandaken Tunnel and the water of Esopus Creek is naturally more clear, or less turbid and lower in total suspended solids, than the water of the Schoharie basin. See Plaintiffs’ Memorandum of Law at 18. Based upon these facts, the First Circuit concluded that the diversion of the river water with its pollutants into Loon Pond (which was not connected to the river) was an addition which required a permit under the CWA. In reaching its decision, the First Circuit specifically distinguished Gorsuch, which it characterized as involving a dam that merely accumulated water and Consumers Power Co., which involved a pump storage facility that stored water from one source in a different place, from the situation in Dubois in which water was moved from one flowing water body into another stationary, cold body of water. See Dubois, 102 F.3d at 1299. Unlike Dubois, the court in Gorsuch concluded that the mere diversion of water did not constitute an “addition” for purposes of the CWA. In that case, the plaintiff argued (similarly to Plaintiffs in this case) that any adverse change in the quality of reservoir water from its natural state involved a “pollutant” and that release of polluted water through a dam into a downstream river constituted the “addition” of a pollutant to navigable waters “from” a point source. To the contrary, the EPA argued that for an addition of a pollutant from a point source to occur, the point source must introduce the pollutant into navigable water from the outside world. See Gorsuch, 693 F.2d at 174-75. According to the EPA, dam-caused pollution, in contrast, merely passed through the dam from one body of navigable water (the reservoir) into another (the downstream river). In addition, although the EPA conceded that all adverse water quality changes are “pollution” - broadly defined in § 1362(19) as “‘the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water -- [the] EPA argue[d] that low dissolved oxygen, cold, and supersaturation were not included in the narrower statutory term ‘pollutant,’ defined in § 502(6), 33 U.S.C. § 1362(6) as: ‘dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, A36 munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into the water.’ Id. at 165 (footnote omitted). The court in Gorsuch recognized that the CWA did not define what constitutes an “addition of a pollutant.” It also recognized that Congress had not expressly addressed whether the EPA should have discretion to define “addition.” The court noted, however, that Congress had given the EPA the reasonable discretion to define “point source” and “pollutant” Therefore, the court concluded that it was “likely that Congress would have given EPA similar discretion to define ‘addition’ had it expected the meaning of the term to be disputed.” Id. at 175. Based upon its finding that the EPA’s interpretation of “addition” was reasonable, the court concluded that because the EPA had concluded that the dam did not “add” pollutants into the downstream river, its interpretation was entitled to great deference and must be upheld. See id. at 166-68, 175. The Sixth Circuit in Consumers Power Co. also found no “addition” of a pollutant based upon the facts before it. In that case, the district court had concluded that the defendant’s hydro-electric facility’s release of turbine generating water containing entrained fish into Lake Michigan required an NPDES permit The Sixth Circuit reversed, finding that the facility’s movement of pollutants already in the water was not an “addition” of pollutants to navigable waters of the United States. Relying upon Gorsuch, the Sixth Circuit concluded that “[t]o the extent that no more has been shown than that unclean water flows out of the dam, Congress clearly displayed an intention to exempt dams from the Clean Water Act.” Consumers Power Co., 862 F.2d at 586. The court distinguished the case before it, in which a facility A37 merely transmitted water coming into it, from the situation in which the dam itself added pollutants to the water and, therefore, would be subject to the NPDES permits system. The court also noted that even if the facility had released heat into the water, the result would have been the same. See id. (“Indeed, it is fair to say that the release of water containing heat could be quite harmful to the fishery resources inhabiting a lake, yet the harmful character still would not make the water and its contents an ‘addition’ of pollutants into navigable waters of the United States.”). in every case other than Dubois, where a court has found an “addition” of a pollutant, more has been involved than the simple diversion of water from one navigable body of water to another. See, e.g. Committee to Save Mokelumne River v. East Bay Mun. Utility Dist., 13 F.3d 305 (9" Cir. 1993) (court distinguished Gorsuch and Consumer Power Co. because the facility did not merely pass pollution from one body of navigable water to another. Rather, the source of pollution was “surface runoff that is collected or channeled by” the defendants from an abandoned mine site); United States v. Law, 979 F.2d 977 (4" Cir. 1992) (court distinguished Gorsuch and Consumer Power C., because the defendant’s water treatment system collected runoff and leachate subject to an NPDES permit and the system was not part of the “waters of the United States”); Hudson River Fishermen’s Ass’n v. City of New York, 751 F. Supp. 1088 (S.D.N.Y. 1990), aff'd without opinion, 940 F.2d 649 (2d Cir 199I) (court held that the City had violated the CWA by discharging chlorine and alum floc into the reservoir without first obtaining a pollution emissions permit). In light of the EPA’s interpretation of what constitutes an “addition” for purposes of the CWA (which the Dubois court did not consider) and the lack of any evidence that Defendants added anything to the water in the Reservoir before releasing it through the Shandaken tunnel, the Court concludes that Plaintiffs have failed to estabiish a necessary element of their claim; i.c., that Defendants’ diversion of water from the Schoharie Reservoir to Esopus Creek through the Shandaken tunnel constitutes an “addition” of pollutants “from” a _ point source. Accordingly, the Court grants Defendants’ motion to dismiss Plaintiffs’ complaint for failure to state a claim upon which relief can be granted. . Defendants’ motion for a more definite statement In light of. the Court’s decision to grant Defendants’ motion to dismiss Plaintiffs’ complaint pursuant to Rule 12(bX6) for failure to state a claim, the Court denies Defendants’ motion for a more definite statement as moot. IV. CONCLUSION After carefully considering the file in this matter, the oral arguments and submissions of the parties and the applicable law, and for the reasons stated herein, it is hereby ORDERED that Defendants’ motion to dismiss Plaintiffs’ complaint for lack of subject matter jurisdiction is DENIED, and it is further ORDERED that Defendants’ motion to dismiss Plaintiffs’ turbidity and thermal discharge claims for failure to state a clam is GRANTED, and it is further ORDERED that Defendants’ motion for a more definite statement is DENIED as moot; and it is further ORDERED that the Clerk of the Court enter judgment in favor of Defendants and against Plainuffs and close this case. IT IS SO ORDERED. Dated: October 4 , 2000 Syracuse, New York S/ 2 Frederick J. Scullin, Jr. Chief United States District Judge DECISION AND ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK, DATED JANUARY 19, 2001 REPRODUCED FOLLOWING A4] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., THEODORE GORDON FLYFISHERS, INC., CATSKILL DELAWARE NATURAL WATER ALLIANCE, INC., FEDERATED SPORTSMEN’S CLUBS OF ULSTER COUNTY, INC., and RIVERKEEPER, INC., 1:00-CV-511 (FJS/RFT) Plaintiff(s), -against- THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, and JOEL A. MIELE, SR., COMMISSIONER OF DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant(s). APPEARANCES OF COUNSEL PACE ENVIRONMENTAL | KARL S. COPLAN, LITIGATION CLINIC, | ESQ. INC. | 78 North Broadway White Plains, New York a } | 10603 | Attorneys for Plaintiffs | | CITY OF NEW YORK SUSAN C. MOON, | | OFFICE OF | ESQ | CORPORATION | COUNSEL | | 160 Church Street | ' New York, New York 10007- | | 2601 | Attorneys for Defendants SCULLIN, Chief Judge | | ORDER 1. INTRODUCTION After hearing oral argument on Defendants’ motion on September 22, 2000, the Court issued a Memorandum- Decision and Order, dated October 6,.2000, in which the Court, among other things, granted Defendants’ motion to dismiss Plaintiffs; complaint for failure to state a claim upon which relief could be granted. Plaintiffs now move for reconsideration on the grounds that “the Court committec clear error on the level of deference appropriate to the EPA interpretation of the A43 words ‘addition of a pollutant’ for the purpose of the Clean Water Act, as controlling Supreme Court jurisprudence was overlooked.” See Plaintiffs’ Memorandum of Law at 3. Specifically, Plaintiffs argue that, in light of the Supreme Court’s recent decision in Chnstensen v. Harris County, 120 S. Ct. 1655 (2000), the Court gave too much deference to the EPA’s interpretation of what constitutes an “addition” for purpose of the Clean Water Act (“CWA”). II. DISCUSSION A. Standard of Review Generally, the courts in this district recognize only three possible bases upon which motions for eee reconsideration may be granted: ““(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.”* Sumner v. McCall, 103 F. Supp. 2d 555, 558 (N.D.N.Y. 2000) (quoting In re C-TC 9" Ave. Partnership, 182 B.R. 1, 3 (N.D.N.Y. 1995) (McAvoy, C.J.)). Parties who base their motion on the third ground have a demanding standard to meet. Under the “clear error” test, the court’s previous decision will be disregarded only when the court has a “clear conviction of error” with respect to a point of law on which it based its previous decision. See Fogel _v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981). Thus, a party considering a motion for reconsideration should evaluate ‘whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and 996 the litigant.”* Sumner, 103 F. Supp. 2d at 559 quoting In re C-TC 9" Ave, Partnership, 182 B.R. at 3). As discussed beiow, Plaintiffs have not demonstrated that the Court committed a clear error of law | in reaching its conclusion that Plaintiffs had failed to establish that Defendants’ actions constituted an “addition” for purposes of the CWA. Thereiore, the Court denies their motion for reconsideration. B. “Clear Error” Standard Plaintiffs claim that in light of the Supreme Court’s AAS decision in Christensen, the Court committed clear error by affording too much deference to the EPA’s interpretation of what constitutes an “‘addition” for purposes of the CWA. In Christensen, the Court held that agency interpretations such as those in opinion letters, policy statements, agency manuals, and enforcement guidelines, do not warrant the high level of deference afforded by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Leg Chnstensen, 120 S. Ct. at 1662. Rather, the Court stated that “interpretations contained in formats such as opinion letters are ‘entitled to respect,’ . . ., but only to the extent that those interpretations have the ‘power to , persuade.””’ Id. at 1663 (internal quotation and citation omitted) Based upon this statement in Christensen, Plaintiffs argue that the EPA’s interpretation of “addition” in National Wildlife Fed’n v. Gorsuch. 693 F.2d 156 (D.C. Cir. 1982), is entitled to little deference because that interpretation was never subjected to adjudication or notice and comment rulemaking. See Plaintiffs’ Memorandum of Law at 6. Moreover, Plaintiffs assert that since Gorsuch, is factually distinguishable from this case, the EPA’s ‘interpretation in Gorsuch should be given even less deference. Sec id. Defendants oppose Plaintiffs’ motion for reconsideration on several grounds. First, Defendants argue that the Court’s dismissal of Plaintiffs’ complaint was based upon prior case law, not on undue deference to the EPA’s interpretation of the Clean Water Act. See Defendants’ Memorandum of Law at 5. Second, Defendants assert that the Court should not excuse Plaintiffs’ failure to raise this argument in opposition to Defendants’ motion to dismiss. See id. at 6-7. Finally, Defendants contend that there is no reasonable expectation that reconsideration of the Court’s decision in light of Christensen would alter the conclusion the Court has already reached. See id. at 7-8. Plaintiffs’ argument, in essence, is premised upon their conclusion that the Court relied entirely upon the AAT EPA’s interpretation of the term “addition” in determining that Defendants’ diversion of water from the Schoharie Reservoir to Esopus Creek through the Shandaken tunnel did not constitute an “addition” of pollutants “from” a point source as required for a violation of the CWA. Sce Memorandum-Decision and Order at 13. Plaintiffs, however, place too much emphasis on part of one sentence in the Court’s Memorandum-Decision and Order. See id. When this sentence is read in its entirety, it is clear that the Court did not rely entirely upon the EPA’s interpretation of the term “addition” as a basis for its conclusion that Defendants’ actions did not constitute an “addition.” The sentence reads in full: In light of the EPA’s interpretation of what constitutes an ‘addition’ for purposes of the CWA (which the Dubois court did not consider) and the lack of any evidence that Defendants added anything to the water in the Reservoir before releasing it through the Shandaken tunnel, the Court concludes that Plaintiffs have failed to establish a necessary element of their claim; i.e., that Defendants’ diversion of water from the Schoharie Reservoir to Esopus Creek through the A48 Shandaken tunnel constitutes an ‘addition’ of pollutants ‘from’ a point source. See id. Moreover, this statement appeared at the very end of the Court’s decision and followed the Court’s analysis of the decisions in Gorsuch and National Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6" Cit. 1988), which it found persuasive, and after it had distinguished Dubois v. United States Dep’t of Agric., 102 F.3d 1273 (1996), the case upon which Plaintiffs relied to support their argument that Defendants’ diversion of water constituted an “addition”’ for purposes of the CWA. When the Court’s reference to the EPA’s interpretation of the term addition” is read in the context of the Court’s entire opinion, it is apparent that the Court gave no more deference to the EPA s interpretation of the term “addition” than it was entitled to under Christensen; i.e., the Court relied upon the EPA’s interpretation only to the extent that it had the power to persuade. As set forth in its AAO discussion, the Court found the reasoning in Gorsuch and Consumers Power Co., to be persuasive in reaching its conclusion that Plaintiffs had failed to establish that Defendants’ actions constituted an “addition” for purposes of the CWA and, thus, had failed to state a claim upon which relief could be granted. Plaintiffs obviously disagree with the Court’s decision and find Dubois more persuasive than Gorsuch and Consumers Power Co. However, this disagreement constitutes nothing more than a difference of opinion and does not rise to the level of a clear error of law which would warrant granting Plaintiffs’ motion for reconsideration. Ill. CONCLUSION After carefully considering the file in this matter, the submissions of the parties and the relevant law, and for the reasons stated herein, it is hereby ORDERED that’ =—s~wPPilaintiffs’ motion for reconsideration is DENIED. ASO IT ISSO ORDERED. Dated: January 19, 2001 Syracuse, New York j Si _ Frederick J. Scullin, Jr. Chief United State District Judge DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DATED OCTOBER 3, 2001 (Reported at 273 F.3d 481) REPRODUCED FOLLOWING UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 23™ day of October, two thousand and one. BEFORE: Hon. John M. Walker, Jr., Chief Judge Hon. Robert A. Katzmann. Hon. Richard D. Cudahy" Circuit Judges. Docket No. 00-9447 CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., THEODORE GORDON FLYFISHERS, INC., CATSKILL-DELAWARE NATURAL WATER ALLIANCE, INC., FEDERATED SPORTMEN’S CLUBS OF ULSTER COUNTY. INC. and RIVERKEEPER, INC., Plaintiffs-Appellants, V. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION and JOEL A. MIELE, SR., Commissioner of Department of Environmental Protection, Defendants-Appellees. * The Honorable Richard D. Cudahy of United States Court of Appeals for the Seventh Circuit, sitting by designation. AS3 Appeal from the United States District Court for the Northern District of New York. This cause came on to be heard on the transcript of record from the United States District Court for the Northern District of New York and was argued by counsel. ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED and DECREED that the judgment of said district court be and it hereby is REVERSED in part, AFFIRMED in part and REMANDED for further proceedings in accordance with the opinion of this Court. Costs are awarded to appeilants. FOR THE COURT, ROSEANN B. MACKECHNIE, Clerk by s/ Arthur M. Heller, Administrative Attorney A54 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2000 (Argued May 25, 2001 Decided: October 23, 2001) Docket Nos. 00-9447 CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., THEODORE GORDON FLYFISHERS, INC., CATSKILL- DELAWARE NATURAL WATER ALLIANCE, INC., FEDERATED SPORTSMEN’S CLUBS OF ULSTER COUNTY, INC. and RIVERKEEPER, INC., Plaintiffs-Appellants, oe Y , ae CITY OF NEW YORK and NEW YORK CITY “~DEPARTMENT OF ENVIRONMENTAL PROTECTION and JOEL A. MIELE, SR., Commissioner of Department of Environmental Protection, Defendants- Appellees, A55 Before: WALKER, Chief Judge, KATZMANN and CUDAHY, * Circuit Judges. Plaintiff environmental organizations appeal from an October 6, 2000 order of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief District Judge) granting defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(6). Reversed in part, affirmed in part, and remanded. | KARL S. COPLAN, ESQ., Pace Environmental Litigation Clinic, Inc. (Basil B. Seggos, on the brief), White Plains, New York, for Appellants. ELLEN S. RAVITCH, ESQ., Office of the Corporation Counsel of the City of New York (Michael D. Hess, Stephen J. McGrath, Hillary Meltzer, and William S. Plache, on the brief), . New York, New York, for Appellees. JOHN M. WALKER, JR., Chief Judge: * The Honorable Richard D. Cuday of the United States Court of Appeals for the Seventh Circuit, sitting by designation. A56 Plaintiff environmental organizations Catskill Mountains Chapter of Trout Unlimited, Inc., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen’s Clubs of Ulster County, Inc., and Riverkeeper, Inc. (collectively “Catskill”) appeal from an October 6, 2000 order of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief District Judge) granting a motion to dismiss under Fed. R. Civ. P. 12(b)(6) made by defendants City of New York, New York City Department of Environmental Protection, and Joel A. Miele. Sr., Commissioner of the Department of Environmental Protection (collectively “New York City” or “the City”). We conclude that some of Catskill’s claims should not have been dismissed and those that were properly dismissed should have been dismissed without prejudice. Accordingly, we reverse in part, vacate in part, and remand for further proceedings consistent with this opinion. BACKGROUND Since before World War II, New York City has operated Schoharie Dam and Reservoir in the Catskill Mountains, to provide drinking water for New York City. Water is diverted south from the Schoharie Reservoir (“the Reservoir’) through the Shandaken Tunnel (“the Tunnel’) for several miles and released into Esopus Creck (“the Creek”), which in turn empties into Ashokan Reservoir. The transfer of water from the Reservoir to Esopus Creek and Ashokan Reservoir facilitates its delivery to New York City for use as drinking water. Absent the tunnel, water leaving the Reservoir would flow north in Schoharie Creek, join the Mohawk River, and flow into the Hudson River. Water from Esopus Creek, on the other hand, makes its way southeast to the Hudson by AS7 way of Ashokan Reservoir. Schoharie Reservoir and Esopus Creek are hydrologically connected only insofar as both are tributaries of the Hudson. Under natural conditions, water from ihe Schoharie Reservoir would never reach Esopus Creek. Plaintiffs-appellants primarily represent recreational users of Esopus Creek. On November 20, 1998, Catskill sent a letter to the City, the United States Environmental Protection Agency (“EPA”), and the New York State Department of Conservation (“NYSDEC”), indicating Catskill’s intention to file suit in district court under the . federal Clean Water Act (“CWA,” “the Act’), 33 U.S.C. § 1251 et seq. The Act permits aggrieved parties to bring civil action to enforce certain of the statute’s requirements against violators. See 33 U.S.C. § 1365 (“Citizen suits.”). On March 31, 2000, Catskill filed a complaint in district court alleging that the City, as owner and owner and operator of the Schoharie Reservoir and Shandaken Tunnel, was is violation of 33 U.S.C. § 1311(a), which prohibits “the discharge of any pollutant” unless those discharges are conducted in accordance with a duly issued discharge permit. 33 U.S.C. § 1311(a) (citing permit requirement in 33 U.S.C. § 1342). Catskill alleged that the Tunnel! discharges pollutants in the form of “suspended solids,” “turbidity,” and heat into Esopus Creek. They alleged that the suspended solids and turbidity are the result of earth-disturbing activities within the Reservoir’s _ watershed that produce fine, red-clay sediments in the Reservoir. They further alleged that the discharges cause the Creek -to violate state water quality standards for turbidity and temperature. Esopus Cree«x, Catskill contended, is naturally clearer and cooler than the water entering it from the Tunnel and supports “one of the premier trout fishing streams in the Catskill Region.” AS5S8 The City responded by moving under Fed. R. Civ. P. 12(b)(1) that the case be dismissed for want of jurisdiction because Catskill’s notice-of-intent-to-sue letter (“NOI letter”) was inadequate, and a proper NOI letter, they argued, is a jurisdictional prerequisite for a CWA citizen suit. The City also moved pursuant to Fed. R. Civ. P. 12(b)(6) that the case be dismissed because, although the City admits that it lacks a permit to discharge into Esopus Creek, it need not obtain one because its releases do not constitute “discharges” as defined by the CWA. The distnct court denied the City’s Rule 12(b)(I) motion, concluding that Catskill’s NOI letter comported with the requirements of the Act and EPA regulations, but granted Rule 12(b)(6) motion. It found that, as a matter of law, the Reservoir and Tunnel did not effect an “addition” of a pollutant to the Creek, as required to tngger the CWA’s permit requirement. See 33 U.S.C. § 1362(12) (defining “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source’). Catskill appealed. DISCUSSION The City makes two arguments in support of the district court’s dismissal. It first argues that the district court and this court lack subject matter jurisdiction over the case because Catskill’s NOI letter, required by the CWA’s citizen suit pro-vision, was inadequate and that a proper NOI letter is a pre-requisite to the court’s subject-matter jurisdiction. Second, the City reiterates its successful argument in the district court, that the complaint failed to state a claim, because Shandaken Tunnel does not effect an “addition” of a pollutant, as required to constitute a “discharge” for which a permit must be sought. We agree with the City that the NOI letter did not provide adequate notice of Catskill’s eventual claim ASI regarding thermal discharges, but find the letter adequate to notify the City of the balance of Catskill’s claims. The district court should have dismissed the thermal discharge claims without prejudice, however, and we therefore vacate the judgment with respect to those claims and remand with direction to dismiss them without prejudice to refiling after submission of a conforming NOI letter and after the 60-day delay required by the CWA. We also conclude that the district court erred in dismissing Catskill’s complaint on the theory that Shandaken Tunnel does not “discharge” pollutants into Esopus Creek. We therefore reverse the judgment on the remaining claims and remand the case for further proceedings. I. The Statutory Framework . We begin with an overview of the regulatory regime. The CWA’s primary function is to regulate the discharge of pollutants into navigable waters. Although the Act contains the lofty goal of eliminating water pollutant discharges altogether, see 33 U.S.C. § 1251(a)(1), the regulatory regime it creates requires principally that discharges be regulated by permit, not prohibited outright. The Act mandates that “the discharge of any pollutant by any person shall be unlawful,” 33 U.S.C. § 1311(a), “{e]xcept as in compliance” with other provisions of the statute, one of which establishes a permitting program, the “National Pollutant Discharge Elimination System” (“NPDES”), 33 U.S.C. § 1342. Section 1342 in tum provides for the issuance of discharge permits (“NPDES permits”) that allow the holder to discharge pollutants at © levels below thresholds incorporated in the permit. 33 U.S.C. § 1342(a ); see also 40 C.F.R. § 122.1 et seq. In New York, the NPDES program is administered by NYSDEC and referred to as the State Pollution Discharge Elimination System (“SPDES”). See 33 U.S.C. § 1342(b) (authorizing state implementation of the NPDES program); N.Y. Envtl. Conserv. Law §§ 17-0105(13), 17-0701. A60 In the instant case, Catskill alleges that the City has been violating the CWA’s unpermitted discharge prohibition by discharging water containing pollutants from Shandaken Tunnel into Esopus Creek without first obtaining an NPDES permit. The Act defines “discharge of a pollutant” to include “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The Act defines “pollutant,” “navigable waters,” and “point source,” 33 U.S.C. § 1362(6), (7), and (14) but the crux of this appeal is the meaning of “addition,” which the Act does not define. In addition to providing for enforcement by state agencies and the EPA, the CWA allows private parties to enforce its mandates, including the prohibition of unpermitted discharges in § 1311(a), against alleged violators in so-called “citizen suits.” See 33 U.S.C. § 1365(a)(1 ), (f). An aggneved plaintiff may bring a civil action for specific relief, such as the imposition of particular compliance measures, or civil penalties payable to the treasury, see 33 U.S.C. § 1365{a), and may recover attorney’s fees, see 33 U.S.C. § 1365(d). At least 60 days prior to filing, however, the prospective plaintiff must provide notice of its claims to the potential defendant, the EPA, and the state in which the violations allegedly occurred. See 33 U.S.C. § 1365(b)(1)(A). If a competent state or federal enforcement agency brings a civil enforcement action against the defendant prior to the citizen complaints being filed, or an administrative enforcement proceeding prior to the plaintiff's NOI letter, the citizen suit is pre-empted and must be dismissed. See 33 U.S.C. §§ 1319(g)(6), 1365(b)(1)(B). I]. Catskill’s Notice of Intent to Sue -The City claims that Catskill’s NOI letter was inadequate because, while it was provided in a timely fashion to the proper parties, the letter failed to give the A6él City adequate notice of the claims that Catskill intended to bring. Catskill’s complaint as filed alleged discharges of “a high! * of turbidity,” “suspended solids,” and “elevated tempe. — -es.” Yet the NOI letter stated only that the City has discharged “pollutants in the form of Total Suspended Solids and Settleable Solids into the Esopus Creek.” The City argues that by failing to provide notice of the claims of turbidity and thermal. discharges ultimately alleged in the complaint, the NOI letter was fatally detective, requiring the suit to be dismissed. Although the district court did not rely on this theory in dismissing the complaint, we may affirm on a basis not relied on by the district court. See Name.Space, Inc. v. Network Solutions, Inc., 202. F.3d 573, 584 (2d Cir. 2000). We conclude that the NOI letter failed to notify the City of Catskill’s thermal discharge claims, but that fact does not invalidate Catskill’s complaint in its entirety. Accordingly, we hold that those claims were properly dismissed. The CWA does not describe the content of the required notice. but directs that “[nJotice . . . shall be given in such manner as the Administrator shall prescribe by regulation.” 33 U.S.C. § 1365(b). The EPA has adopted such regulations. which mandate, inter alia, as follows: Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person Or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice. A62 40 C.F.R. § 135.3(a). In the past, we have refused to “allow form to prevail over substance” in considering the content required of an NOI letter, and have looked instead to what the particular notice given may reasonably be expected to accomplish. Dague v. City of Burlington. 935 F.2d 1343, 1354 (2d Cir. 1991), rev’d in part on other grounds, 505 U.S. 557 (1992). The City contends that the EPA regulations require a potential plaintiff to include in an NOI letter each separate pollutant that will be alleged in a subsequent complaint as the. basis of a violation of the Act. At least one circuit has adopted such a rule. See Pub. Interest Research Group v. Hercules, 50 F.3d 1239, 1248 (3d Cir. 1995). On this theory, for example, a plaintiff could not bring suit for discharges of mercury, lead, and copper if the NOI letter alleged violations based only on discharges of copper. In that case, the claims of copper violations would stand, but the claims based on mercury and lead discharges would need to be dismissed. We agree with the City that such a rule logically follows from the regulatory scheme and therefore adopt it. The EPA regulations require that an NOI letter “include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, [and] the activity alleged to constitute a violation.” 40 C.F.R. § 135.3(a). We believe that to be “sufficient,” the information provided must include the pollutant alleged to be the basis of a violation subsequently alleged in the complaint. Because each discharge of a pollutant represents a distinct violation of the Act, see 33 U.S.C. § 1311(a) (“the discharge of any pollutant . . . shall be unlawful”); Ati. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1138 n.19 (11" Cir. 1990), identification in an NOI letter of a pollutant allegedly discharged is essential to A63 provide adequate notice of the alleged violation. Discharges of mercury and lead, for instance, could he distinct violations, each subject to penalties of up to $25,000 per day. See 33 U.S.C.§§ 1319(d), 1365(a). To provide adequate notice of each violation that will be targeted in the citizen suit, the NOI letter must differentiate pollutants from nonpollutants and one pollutant from another. The rationale for such a rule is most apparent in the context of a suit alleging discharges in excess of NPDES permit limitations, in which the defendant may he discharging some pollutants lawfully and _ others unlawfully. To enable the defendant to identify each: violation that will be alleged, then, the NOI letter must specify each pollutant unlawfully discharged that will be alleged in a subsequent complaint. The principle applies equally where, as here, the defendant has failed altogether to obtain a permit. To state a claim based on unpermitted discharges, the plaintiff must allege some pollutant that was discharged without a permit. It follows, then, that to the extent the plaintiff intends to prosecute multiple violations involving multiple pollutants, each pollutant that will be the basis of such a claim must be set forth in the NOI letter. The policies underlying the NOI requirement are furthered by this rule The notice and 60-day delay requirements allow a potential defendant to identify its own violations and bring itself into compliance voluntarily, thus making a costly lawsuit unnecessary. See Hallstrom v. _ Tillamlook County, 493 U.S. 20, 29-30 (1989); Dague, 935 F.2d at 1351; see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987) (holding that if the defendant ceases its violations prior to the filing of the complaint, the action is barred). Specific knowledge of the pollutants allegedly discharged unlawfully makes it easier for the defendant to promptly rectify the problem. Cf Atl. States Legal Found., Inc. v. Stroh Die Casting Co., A64 ! —_—_——_ 116 F.3d 814, 819-20 (7" Cir. 1997) (“In practical terms, the notice must be sufficiently specific to inform the alleged violator about what it is doing wrong, so that it will know what corrective actions will avert a lawsuit. . . . The key to notice is to give the accused company the opportunity to correct the problem.”’). The notice and delay requirements are also designed to allow the enforcer of first resort, the EPA or the appropriate state agency, to bring its own enforcement action, see Hallstrom, 493 U.S. at 29, which would preempt the citizen lawsuit, see 33 U.S.C. § 1365(b)(1)(B). Inclusion of each pollutant forming the basis of a alleged violation better allows enforcement agencies to identify and prosecute a potential defendant’s violations, giving effect to Congress’s intention that citizen enforcers supplement, not supplant, public enforcement. See id. (citing Gwaltney, 484 U.S. at 60). Accordingly, we hold that an NOI letter must identify with reasonable specificity each pollutant that the defendant is alleged to have discharged unlawfully. Failure to do so will justify a district court’s dismissing claims based on pollutants not properly noticed. Turning to the case at hand, we conclude that Catskill’s NOI letter adequately notified the City of some but not all of the violations subsequently alleged in the complaint. The district court found, and Catskill argues on appeal, that inclusion of “suspended solids” and “settleable solids” was sufficient to notify the City of Catskill’s claims of turbidity and thermal discharges, because of the logical and empirical associations between suspended solids on the one hand and turbidity and thermal discharges on the other. We agree with respect to Catskill’s claims of turbidity discharges, but not with respect to thermal discharges. A65 Turbid water, by definition, is water carrying high levels of solids in suspension. The presence of elevated levels of suspended solids inevitably produces iurbidi‘y. “Turbid” is defined as “having the lees or sediment disturbed: thick or opaque with matter in suspension.” Webster's Third New International Dictionary 2464 (1981). Water cannot be turbid without suspended solids, and some level of turbidity is inherent where suspended solids are preseni. Because each logically depends on the other, notice of discharges of suspended solids is sufficient to notify of an eventual claim based on discharges of “turbidity.” On the other hand, the relationship between suspended solids and temperature is one of association, not identify. To be sure, increased turbidity often produces increased water temperature. Particles suspended in water absorb heat, raising the temperature of the water. But the presence of suspended solids does not inevitably raise water temperature. The effect of suspended solids on temperature depends on a third variable, radiant heat, usually in the form of sunlight. Increased turbidity in a cold, dark place may not affect the temperature of the water at all, or may do so only infinitesimally, because no source of radiant heat is present. As a result, unlike suspended solids and turbidity, there is no necessary relationship between suspended solids and increased temperature. The relationship is only one of frequent association under ordinary circumstances. Accordingly, to be sufficient, the allegations in an NOI letter must suggest that these ordinary circumstances were also prevalent. Where alleged circumstances. indicate that suspended solids and increased temperature are very likely to be associated, notice of suspended solids may be sufficient to notify a reasonable person of a thermal discharge claim. In the instant case, Catskill’s NOI letter does not state that such circumstances were prevalent. A66 For the foregoing reasons, we hold that Catskill’s claims of unpermitted thermal discharges were properly dismissed under Rule 12(b)(6). However, those claims should have been dismissed without prejudice. Thus we vacate so much of the judgment as dismissed Catskill’s thermal discharge claims with prejudice and remand those claims with direction that they be dismissed without prejudice to refilling after full compliance with 33 U.S.C. 1365(b)(1)(A). Ill Interbasin Transfer as a “Release” Under the CWA As we have noted, the CWA prohibits, unless otherwise allowed by permit, “the discharge of any pollutant,” 33 U.S.C. 1311(a), which the Act defines to mean “any addition of any pollutant to navigable waters from any point source,” 33 U.S.C. § 1362(12). The statute does not define “addition.” The City argues that the release of water from Schoharie Reservoir into Esopus Creek is not an “addition,” citing National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), and National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6" Cir. 1988), both of which accorded substantial deference to the EPA’s position that the CWA’s discharge permit requirement does not apply to discharges from dams. Catskill counters that the Gorsuch and Consumers ‘ Power courts accorded unjustified deference to the EPA’s interpretation of “addition,” that the cases are distinguishable on their facts, and that the City’s conduct here qualifies as an “addition” under the plain meaning of that word. We agree with Catskill and accordingly reverse the district court and remand for further proceedings on Catskill’s remaining claims. A. The EPA’s Position and the Proper Standard of Deference A67 In several policy statements made in opinion letters and reports to Congress in the 1980s and 1980s, the EPA took the position that dam releases should not be considered “discharges” under the CWA and thus NPDES permits would not be required for those releases.’ See Gorsuch, 693 F.2d at 167-69. This position was never formalized in a notice-and-comment rulemaking or formal adjudication under the Administrative Procedure Act, 5 U.S.C. §§ 553, 554, although the EPA subsequently reiterated its position in the Gorsuch and Consumers Power cases, as a defendant and amicus curiae, respectively. See’ Consumers Power, 862 F.2d at 583; Gorsuch, 693 F.2d at 165. Both courts rested their decisions on the conclusion that the EPA position deserved substantial deference and was reasonable. Given subsequent Supreme Court decisions governing judicial deference to federal agencies’ constructions of the statutes that they implement, we hold that the EPA position is due less deference than that accorded it by the Gorsuch and Consumers Power courts. In 1982, in Gorsuch, the District of Columbia Circuit deferred to the EPA’s position that dam releases wer not “additions” under the CWA, which it upheld as a reasonable construction of the statute. The Gorsuch plaintiffs had sued the EPA under 33 U.S.C. § 1365(a)(2), seeking a declaration that the EPA had a nondiscretionary duty to require NPDES permits from dam operators. After an extensive exegesis of the CWA’s statutory text, structure, and legislative history, the court concluded that the EPA could reasonably conclude that dam releases were ' The original documents in which the EPA staked out its position were not included in the filings before this court and were not published in the usual sources of administrative law, the Code of Federal Regulations at.d the Federal Register. We accordingly base our discussion of the EPA’s position on that included in the District of Columbia Circuit’s comprehensive opinion in Gorsuch. A68 not “additions.” See 693 F.2d at 170-83. Notwithstanding the court’s extensive investigation of legislative intent, its relied ultimately on deference to the agency: [W]e emphasize the narrowness of our decision. It is not our function to decide whether EPA’s interpretation . . . is the best one or even whether it is more reasonable than the Wildlife Federation’s interpretation. We hold merely that EPA’s interpretation is reasonable, not inconsistent with congressional intent, and entitled to great deference; therefore, it must be upheld. 693 F.2d at 183. In 1988, the Sixth Circuit reached the same conclusion. See Consumers Power, 862 F.2d at 584- 87. If the EPA’s position had been adopted in a rulemaking or other formal proceeding, deference of the sort applied by the Gorsuch and Consumers Power courts might be appropriate. Instead, the EPA’s position is based on a series of informal policy statements made and consistent litigation positions taken by the EPA over the years, primarily in the 1970s and 1980s. Recent Supreme Court cases emphasize that such agency statements do not deserve broad deference of the sort accorded by the Gorsuch and Consumers Power courts.’ See United States v. Mead Corp., 121 S. Ct. 2164 (2001); Christensen v. Harris County, 529 U.S. 576 (2000). In Christensen, the Supreme Court held that “‘[i]nterpretations such as those in opinion letters — hke imterpretations contained in policy 7 Consumers Power expressly applied the standard of deference elaborated in Chevron U.S.. Inc. v. Natural Resources Defense Council, 467 US. 837 (1984). See 862 F.2d at 584-85. Gorsuch, which predated Chevron, applied essentially the same degree of deference. See 693 F.2d at 166-67. A69 statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” 529 U.S. at 587. “Instead,” the Court continued, “interpretations contained in formats such as opinion letters are ‘entitled to respect’ . . . but only to the extent that those interpretations have the ‘power to persuade.’” /d. (citation omitted). The Court consequently held that an opinion letter by the Department of Labor deserved only this form of limited deference in its interpretation of a provision of the Fair Labor Standards Act. See id. Like positions taken by the Department of Labor in its opinion letter in Christensen, the EPA position on dam discharges has never been articulated in circumstances that would give it the “force of law.” Gorsuch describes only a series of letters and several presentations for Congress in reports and testimony that outlined the EPA’s position. See Gorsuch, 693 F.2d at 167-69. None of these sources come close to the sort of formal, binding articulation of an agency’s views that would justify Chevron deference after Christensen. That the EPA later relied on its position in- litigation does not alter our analysis; a position adopted in the course of litigation lacks the indicia of expertise, regularity, mgorous consideration, and public scrutiny that justify Chevron deference. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988); Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 365 (4th Cir. 2000); S. Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 828 (10th ° Cir. 2000). However, as Mead and Christensen make clear, courts do not face a choice between Chevron deference and no deference at all. Administrative decisions not subject to Chevron deference may be entitled to a lesser degree of deference: the agency position should be followed to the extent persuasive. See Mead, 121 S. Ct. at 2175-76 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). For A70 the reasons that follow, however, we do not find the EPA’s position to be persuasive. B. Defining “Addition” The EPA’s position, upheld by the Gorsuch and Consumers Power courts, is that for there to be an “addition,” a “point source must introduce the pollutant into navigable water from the outside world.” Gorsuch, 693 F.2d at 165. We agree with this view provided that “outside world” is construed as any place outside the particular water body to which pollutants are introduced. Given that understanding of “addition,” the transfer of water containing pollutants from one body of water to another, distinct body of water is plainly an addition and thus a “discharge” that demands an NPDES permit. Both Gorsuch and Consumers Power essentially involved the recirculation of water, without anything added . “from the outside world.” Such recirculation, they concluded, could not be an “addition.” In Gorsuch, water was released from a reservoir through a dam to the stream below. Plaintiffs complained that such a release amounted to a regulated discharge under the Act, requiring a permit. The reservoir above the dam and the stream below, at least arguably, were sufficiently the “same” water that the release might not be considered an “addition”; nothing was introduced to the water that was not, in some sense, already there. See 693 F.2d at 174-75. In Consumers Power, the defendant had withdrawn water from Lake Michigan, along with some surprised fish, for hydroelectric power generation. The water and fish were then returned to the Lake after passing through hydroelectric generators, which pureed some of the fish. The court found that returning the fish to the Lake, albeit in a different form, was not an “addition” because the fish had already been there. See 862 F.2d at 586. Indeed, the court A7l concluded that “(t]he water which passes through the (defendant’s hydropower works] never loses its status as water of the United States.” /d. at 589. The navigable water was recirculated, but nothing was added. The Sixth Circuit therefore also concluded that the releases from the defendant’s hydropower works were not “introduced from the outside world.” See id. at 586. Beyond Consumers Power, several cases from other circuits, despite having found “additions” to have occurred, in dicta reiterated the Gorsuch holding. See, e.g., Comm. To Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 308-09 (9th Cir. 1993); United States v. Law, 979 F.2d 977, 979 (4th Cir. 1992) (“Where ‘pollutants’ exist[ | in the waters of the United States before contact with these facilities, the mere diversion in the flow of the waters [does] not constitute ‘additions’ of pollutants to the water.”’). The Gorsuch and Consumers Power decisions comport with the plain meaning of “addition” assuming that the water from which the discharges came is the same as that to which they go.’ If one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added” soup or anything else to the pot (beyond, perhaps, a de minimis quantity of airborne dust that fell into the ladle). In requiring a permit for such a “discharge,” the EPA might as easily require a permit for Niagra Falls. The present case, however, strains past the breaking point the assumption of “sameness” made by the Gorsuch and Consumers Power courts. Here, water is artificially diverted from its natural course and travels several miles > We need not and do not decide whether those courts were correct in accepting that the source and destination waters were identical and thus whether we would reach their conclusions if presented with the same facts. A72 from the Reservoir through Shandaken Tunnel to Esopus Creek, a body of water utterly unrelated in any relevant sense to the Schoharie Reservoir and its watershed. No one can reasonably argue that the water in the Reservoir and the Esopus are in any sense the “same,” such that “addition” of one to the other is a logical impossibility. When the water and the suspended sediment therein passes from the Tunnel into the Creek, an “addition” of a “pollutant” from a “point source” has been made to a “navigable water,” and the terms of the statute are satisfied. In Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991), we implicitly held the release of polluted water from one water body to a distinct, less-polluted water body to be an addition of pollutants to the latter. We concluded that a “discharge” had occurred where leachate from a landfill entered a pond and thereafter water from the pond, polluted with the leachate, flowed through a culvert into a surrounding marsh. We held that (1) the pond and marsh were different navigable waters; (2) the culvert was the relevant point source; and (3) the release of pond water through the ? was a “discharge.” We thus necessarily implied that the transfer of water from the pond to the marsh was an “addition” /d at 1354-55. We also expressly rejected the defendant’s argument that the water flowing from pond to marsh was not an “addition,” noting that “({ujnder this argument, pollutants would be ‘added’ only when they are introduced into navigable waters for the first time.” /d. at 1354. The First Circuit reached a similar conclusion in Dubois v. U.S. Dep’t of Agriculture, 102 F.3d 1273 (\st Cir. 1996). In that case, a ski resort operator on Department of Agriculture property pumped water without a permit from a polluted river into a less-polluted pond to operate its snowmaking equipment. The court held that the transfer of polluted water from one water body to a distinct water body constitutes an “addition” of pollutants to the A73 destination water body. The court emphasized that the two bodies of water, for all relevant purposes, were distinct: although water naturally flowed from the pond into the river, water would never naturally flow from river to pond. That difference made the pumping an “addition.” See id. at 1296-97. The court distinguished Gorsuch and Consumers Power as involving movement of water within the same water body. See id. at 1299. The City also argues that “addition” draws meaning from its association with the phrase “from point source.” This view misunderstands the import of the term “point - source,” which does not necessarily refer to the place where the pollutant was created but rather refers only the proximate source from which pollutant is directly introduced to the destination water body. A pipe from a factory draining effluent into a navigable water is a point source, but the factory itself is not. This is clear from the text of the Act, which defines “point source,” in relevant part, as any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. 33 U.S.C. § 1362(14). Under most circumstances, a “pipe, ditch, channel, tunnel, [or] conduit” is unlikely to have created the pollutants that it releases, but rather transports them from their original source to the destination water body. As a “tunnel,” Shandaken Tunnel plainly qualifies as a point source. The tunnel itself need not have created the pollution; it is enough that it conveys the pollutants from their original source to the navigable water. See United States v. Plaza Health Labs., Inc., 3 F.3d 643, 646 (2d Cir. 1993). The City’s proposed interpretation of “from a point A74 source” is inconsistent with the CWA’s definition of a point source. Given the ordinary meaning of the CWA’s text and our holding in Dague, we cannot accept the Gorsuch and Consumers Power courts’ understanding of “addition,” at least insofar as it implies acceptance of what the Dubois court called a “singular entity” theory of navigable waters, in which an addition to one water body is deemed an addition to all of the waters of the United States. See Dubois, 102 F.3d at 1296-97. We properly rejected that approach in Dague. . Such a theory would mean that movement of water from one discrete water body to another would not be an addition even if it involved a transfer of water from a water body contaminated with myriad pollutants to a pristine water body containing few or no pollutants. Such an interpretation is inconsistent with the ordinary meaning of the word “addition.” Even if we were to conclude that the proper application of the statutory text to the present facts was sufficiently ambiguous to justify reliance on the legislative history of the statute, see Blum v. Stenson, 465 U.S. 886, 896 (1984), that source of legislative intent would not help the City. The legislative history is silent on the meaning of “addition.” See Gorsuch, 693 F.2d at 175. Instead, the City relies principally on evidence from other provisions of the statute that Congress sought (1) to target industrial and municipal wastes specifically, see Plaza Health Labs., 3 F.3d at 647, and (2) to leave the regulation of water supply—and therefore dam and reservoir operations—to the states, see 33 U.S.C. § 1251(g) (“It 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 [Act].’’). A75 ‘Yet like many complex statutes (and the CWA is among the most complex), the CWA balances a welter of consistent and inconsistent goals. In contrast with the policies cited by the City, the CWA also expressly includes a broad and uncompromising policy of “restor[ing] and maintain{ing] the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Artificially transferring water and pollutants between watersheds as the City has done here might well interfere with that integrity, as Catskill has alleged. Moreover, in the past we have applied the Act’s proscriptions beyond industrial discharges. See Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) (involving discharges of agricultural waste). In any event, none of the statute’s broad purposes sways us from what we find to be the plain meaning of its text. Cf Plaza Health Labs., 3 F.3d at 647 (“The narrow questions posed by this case . . . may not be resolved merely by simple reference to [the CWA’s] admirable goal[s].”") Where a statute seeks to balance competing policies, congressional intent is not served by elevating one policy above the others, particularly where the balance struck in the text is sufficiently clear to point to an answer. We find that the textual requirements of the discharge prohibition in § 1311(a) and the definition of “discharge of a pollutant’ in § 1362(12) are met here. CONCLUSION The judgment of the district court is hereby reversed in part, vacated in part, and the case is remanded. We vacate so much of the judgment as dismissed Catskill’s thermal discharge claims and remand the direction that those claims be dismissed without prejudice to refilling after full compliance with 33 U.S.C. § 1365(b) (1) (A). The remainder of the judgment dismissing the complaint is A76 reversed and remanded for further proceedings consistent with this opinion. Costs are awarded to the appellants. ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK, DATED JUNE 4, 2002 REPRODUCED FOLLOWING UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., THEODORE GORDON FLYFISHERS, INC., CATSKILLDELAWARE NATURAL WATER ALLIANCE, INC., FEDERATED SPORTSMEN’S CLUBS OF ULSTER COUNTY, INC., and RIVERKEEPER, INC., Plaintiff(s), 1 .99.cVy-51] dita: (FJS/RFT) THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, and JOEL A. MIELE, SR., COMMISSIONER OF DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant(s). APPEARANCES OF COUNSEL PACE ENVIRONMENTAL | KARL S. COPLAN, LITIGATION CLINIC, | ESQ. INC. 78 North Broadway White Plains, New York 10603 Attorneys for Plaintiffs A79 CITY OF NEW YORK WILLIAM PLACHE, OFFICE OF | ESQ. CORPORATION HILARY COUNSEL MELTZER, ESQ. 100 Church Street New York, New York 10007- 2601 Attorneys for Defendants SCULLIN, Chief Judge U.S. DISTRICT COURT-N.D. OF N.Y. FILED JUNE 4, 2002 LAWRENCE K. BAERMAN, CLERK-SYRACUSE ORDER Plaintiffs commenced this action under the citizen suit provision of the Clean Water Act (“CWA”), 33 U.S.C. § 1365, to enjoin Defendants from polluting the Esopus Creek, a world-class trout ‘stream, with highly turbid, muddy water, and for civil penalties for past violations. Presently before the Court is Plaintiffs’ motion for _ partial summary judgment declaring that Defendants are in violation of the CWA, 33 U.S.C. § 1311(a), every day that Shandaken Tunnel is in operation and that Defendants have violated CWA § 1311(a) on at least 347 days between A80 February 1, 1995 and December 30, 1998. On May 29, 2002, the Court heard oral argument with respect to this motion. At that time, the Court orally granted Plaintiffs’ motion for partial summary judgment and advised counsel that a written Order would be forthcoming. The following constitutes the Court’s written decision with respect to the pending motion. The CWA prohibits the addition of any pollutant into navigable waters from any point source by an person without a permit. See 33 U.S.C. §§ 1311(a), 1362(12). Violators of r prohibition are strictly liable. See Connecticut Fund for the Env't, Inc. v. Upjohn Co., 660 F. Supp. 1397, 1409 (D. Conn. 1987). In the present case, there is no dispute that Esopus Creek is a navigable water, that Defendants are persons. within the meaning of the CWA, and that Defendants do not have a permit. Nor can there be any dispute that the Shandaken Tunnel is a point source and that suspended sediment constitutes a pollutant now that the Second A&l Circuit has held that “{w]hen the water and the suspended sediment therein pass from the [Shandaken] Tunnel into the {Esopus} Creek, an ‘addition’ of a ‘pollutant’ from a ‘point source’ has been made to a ‘navigable water,’ and the terms of the statute are satisfied.” Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 492 (2d Cir. 2001) [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1793%3A2. Public record. Not legal advice.