Opposition Brief — City of New York, New York v. Catskill Mountain Chapter of Trout Unlimited (No. 06-729)
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No. 06-729 JAN 2 4 2007
In the SUPREME COURT, US.
Supreme Court of the United States
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CITY 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, INC.,
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
BRIEF FOR CERTAIN RESPONDENTS IN OPPOSITION
KARL S. COPLAN
Counsel of Record
DANIEL E. ESTRIN
PACE ENVIRONMENTAL LITIGATION CLINIC, INC.
Attorneys for 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.
78 North Broadway
White Plains, New York 10603
January 24, 2007 (914) 422-4343
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DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax. (718) 522-4024
1-800-531-2028
QUESTION PRESENTED
Whether the conveyance of water containing
pollutants from one watershed, through a tunnel underneath a
mountain range into higher quality waters of a trout fishery
in a separate and distinct watershed, causing a violation of
State-established water quality standards, constitutes an
addition of a pollutant from a point source under Section 301
of the Clean Water Act, 33 U.S.C. §1311.
il
TABLE OF CONTENTS
Pages
SISO BEAN OF op dcradexicieusatbajinwsaideenearecaaiaala l
PUIG PAE itis ss rsenidicccivguecaverbanteiaiciiinbiie l
PERE URE osicn'vesiterisucivayebuasdercaneeasen tae |
PIG inn 5 0ns9uivssiiivadchuesiseeiiccaia 8
I. THERE IS NO SPLIT IN THE CIRCUITS,
AS EVERY CIRCUIT TO CONSIDER THE
ISSUE HAS AGREED THAT INTER-BASIN
TRANSFERS OF POLLUTED WATER ARE
SUBJECT TO CLEAN WATER ACT § 301...................8
A. Every court has reached the same conclusion
that inter-basin transfers of polluted water
OIE TER II oi inendicivdivehavissccovotcecevenctenes 8
B. The decision below is entirely consistent
with this Court’s remand in Miccosukee....................10
I]. THE COURT’S INTERVENTION IS BOTH
UNTIMELY AND UNWARRANTED IN LIGHT
OF THE EPA’S PENDING RULEMAKING................. 1]
A. Granting certiorari would not finally resolve the
issue given the pendency of EPA’s rulemaking......... 12
B. It is inappropriate for the Court to consider
Cine Teraeel FUNC EN TRIS PONG a. oe nicdicne ccc waSencntnecexcaves 13
C. There is no reason to hold for the final rule.................. 14
ili
Pages
III]. THE DECISION BELOW IS CORRECT..................16
A. The Second Circuit’s unanimous holding applies
the plain language of the Clean Wate act..................16
B. This is not a “unitary waters” Case.........c::.ccccccesee eens 18
C. Petitioners’ reliance on Gorsuch and
Consumers Power is misplaced.............:0..ceceeseeeeeeree 20
IV. THE REQUIREMENT OF A CWA PERMIT
DOES NOT UNDULY BURDEN NEW YORK
CITY’S ABILITY TO TRANSFER WATER................ 21
A. The Supreme Court held that CWA § 101(g)
presumes legitimate regulation of water quality........... 21
B. New York City conceded that a SPDES
CSTINEE GELOWS TOE TICKING ooo cs cccce tccccserwerevnvevencc 22
V. THE EPA’S PROPOSED RULE IS NOT
TS EE ee FOP er ens da cin cicncoskercacccsdeviensess 24
Se MIN sic) dacicva veins caburaguitetaeann des dud oanaimenanon 25
Seeks asc divectiss ion dsintecdesdencinevin elanranaieccadaebae’s 26
A. Selected pages from Plaintiffs’ Statement of
Material Facts in Support of their Motion for
Partial Summary Judgment, dated March 13, 2002,
and Defendants’ corresponding response, dated
UP SERRA nun Senlanab ais eco MOEN me RSE P= |
iV
Pages
B. Photograph taken October 7, 2002 immediately
downstream from the Shandaken Tunnel Outlet............35
C. Photograph taken October 7, 2002 immediately
upstream from the Shandaken Tunnel Outlet...............36
Vv
TABLE OF AUTHORITIES
Cases
Page
Bowen v. Georgetown University Hospital,
Fe ee AT OE ieicsin cin csdicesscectastnstiichesschddisniuaitalicsevbsincclinias 15
Catskill Mountains Chapter of Trout Unlimited
Inc. v. City of New York, 273 F.3d 481 (2d Cir.
BEE dh thucsoviiaictidctrretisesicieidigbtvdouiidcedeeshicsenartantueadabeties passim
Catskill Mountains Chapter of Trout Unlimited,
Inc. v. City of New York, 451 F.3d 77 (2d Cir.
BE tieisledesicsnibieslstel ceieshanhaslansehiiedeeiacomnisaebinaldigeenbiabinccens passim
Chevron v. Natural Resources Defense Council,
BO, GOT GB G9 E CF iccesecsesecsscssewvivervnstsvinesse 12, 21, 24
Christensen v. Harris County, 529 U.S. 576 (2000).......... 21
Committee to Save Mokelumne River v. East Bay
Municipal Utility District, 13 F.3d 305 (9th Cir.
| ROTEL AIEEE eae ars OPES arabe iio 8) Se alee 9
Del-Aware Unlimited, Inc. v. Department of
Environmental Resources, 508 A.2d 348
(Pa. Commw. Ct.), appeal denied, 523 A.2d 1132
SUE ITI secs uci lips chctbuasieelegalceontclanensa cients looneeieabecnnsisiniaioneniods 9
Dubois v. U.S. Department of Agriculture, 102
Be Fe Te le Batic iiinivsetnipucenovicenciecssverpiebenias 8
Friends of the Everglades, Inc. v. South Florida Water
Management District, No. 02-80309, 2006 WL
Pe Cases Fs GAD. 15, DIOP hiv tsivcervinssiciniantiinnonvie 8
vi
Pages
Goodlin v. Medtronic, Inc., 167 F.3d 1367 (11th
i Ej MRNA NCO oa OO aN SS Wee aA sauhonepaabesiaienmtiis 24
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792).........0004. 12, 13
Miccosukee Tribe of Indians v. South Florida
Water Management District, 280 F.3d 1364
OE SI rs cesdsaccint coherence gi cae itch teccenesacanenss 10
N. Plains Resources Council v. Fidelity Exploration
& Development Co., 325 F.3d 1155 (9th Cir. 2003) ........ 9
National Cable & Telecommunications Ass’n v.
Brand X internet Services, 125 S. Ct. 2688
SRE ta ose 8 Oy NEPAD ARE PUNY aE tae oe te YR RAN 12
National Wildlife Federation v. Consumers
Power Co., 862 F.2d 580 (6th Cir. 1988) ......... eee 20
National Wildlife Federation v. Gorsuch,
OF Fe Fe ee SI iivccasncertenecscccuichinesccmneekes 20
PUD No. | v. Washington Department of
Eaten, S14 TE Fe Ca icisicispiscnckoesntascsevinnseisuittes 6, 22
Perez v. Ashcroft, 236 F. Supp. 2d 899
UR EE, Tees UD Sesh cerns ccicecied oh siSaphccseatainncadatasiigisasoniiiasiie 24
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ....... 12
Public Citizen Health Research Group v.
Commissioner, FDA, 740 F.2d 21 (D.C. Cir. 1984)........ 24
Vil
Pages
Public Citizen, Inc. v. Shalala, 932 F. Supp. 13
Eek: 5 PE nivibaesiideinlinnciiiiaasiapiiebeldciuuadsiitem aris 24
South Florida Water Management District v.
Miccosukee Tribe of Indians, 541 U.S. 95
GIT A cedwtrttsdodsvarenpousiiaviiuscicaninemubaaiaoaen 5, 10, 11, 17, 20
Squaw Valley Development Co. v. Goldberg,
FID Oe Se , BOO iicitab ities 17
United States v. Law, 979 F.2d 977 (4th Cir. 1992) 0.0.0.0... 9
United States v. Mead Corp., 533 U.S. 218 (2001)........... 24
Statutes and Regulations
Federal Statutes
yy EES ROE By | yf Ae MnO nO Ter eaNE CIA Sa ese l
Administrative Procedure Act, 5 U.S.C. § 554(1)....000..... 15
Administrative Procedure Act, 5 U.S.C. § 702.0... 1]
Clean Water Act § 101(a), 33 U.S.C. § 1251 (a)... 5, 16
Clean Water Act § 101(g), 33 U.S.C. § 1251(g) ..... 6, 21-22
Clean Water Act § 301(a), 33 U.S.C. § 1311(a)......... passim
Clean Water Act § 301(m)-(n), 33 U.S.C.
BEE i iiivivisiccetnnaendniicoiesnecena mien 23
Vili
Pages
Clean Water Act § 304(a)(4), 33 U.S.C.
ca cc vasisnensontnateotvorene ye
Clean Water Act § 402, 33 U.S.C. § 1342.............:ccesseee ~
Clean Water Act § 502(6), 33 U.S.C. § 1362(6) .......00.0... 17
Clean Water Act § 502(12), 33 U.S.C. § 1362(12) ........... 16
Clean Water Act § 502(14), 33 U.S.C. § 1362(14) ........... 18
Clean Water Act § 505(a)(1), 33 U.S.C. § 1365(a)(1)......... 4
Clean Water Act § 509(b)(1), 33 U.S.C. § 1369(b)(1)...... 1]
Clean Water Act § 510, 33 U.S.C. § 1370...............cccsseseeees 7
Clean Water Act § 505(b)(1)(A), 33 U.S.C.
Nees os ssuhaliavsteeaceeseusverssveses 4
Federal Regulations
Rs 9 re 7
Exec. Order No. 13112, 64 Fed. Reg. 6,183
NE I itis cnisnacerevavsessivvevssssovervevaseversenversevevevessoseves 14
State Regulations
N.Y. Comp. Codes R. & Regs. tit. 6, § 701.6 (1991) 0.0.0... 3
N.Y. Comp. Codes R. & Regs. tit. 6, § 702.17(b)(1)
Neen... sasiondvsisaswnnsabvvendensckasees 23
"N.Y. Comp. Codes R. & Regs. tit. 6, § 703.2 (1991)........ 19
ix
Pages
Miscellaneous
Jody Freeman & Laura I. Langbein, Regulatory
Negotiation and the Legitimacy Benefit, 9 N.Y.U.
UG, Sec Gy FP TE GND iicitaciehbesbivetniisinncsiniabigbiigis 15
National Pollutant Discharge Elimination System
(NPDES) Water Transfers Proposed Rule, 71 Fed.
Reg. 32,887 (proposed June 7, 2006) (to be codified
fee OE & >. SRR nm eer eimiomrverdin Wonneon Meant ner Rawr as 7
]
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1l-23)
is reported at 451 F.3d 77. The prior opinion of the court of
appeals (Pet. App. A52-77) is reported at 273 F.3d 481. The
opinion of the district court (Pet. App. A85-128) is reported
at 244 F. Supp. 2d 41. The district court’s partial summary
judgment (Pet. App. A78-84) is unreported. The initial
decision of the district court (Pet. App. A24-40) and that
court’s decision on plaintiffs’ motion for reconsideration
(Pet. App. A41-51) are unreported. The court of appeals’
order denying rehearing and rehearing en banc (Pet. App.
A139-142) is unreported. The district court’s order and
amended judgment on remand (Pet. App. A129-138) are
unreported.
JURISDICTION
The judgment of the court of appeals was entered on
June 13, 2006. A petition for rehearing and rehearing en
banc was denied on August 25, 2006. The petition for a writ
of certiorari was filed on November 20, 2006. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1) (2006).~
STATEMENT
Petitioner New York City Department of
Environmental Protection operates’ the Shandaken Tunnel
(“Tunnel”) as part of the New York City Catskill Water
Supply System. (Pet. App. at AS). The Tunnel begins at the
Schoharie Reservoir in Delaware County, passes through
Greene County, and discharges into the Esopus Creek in
Ulster County. When the Tunnel is in operation, water from
the Schoharie Reservoir is diverted through the Tunnel for
eighteen miles under a mountain range, and is discharged
2
into the Esopus Creck, which in turn empties into the
Ashokan Reservoir. (/d. at A5-6).
The Schoharie Reservoir and the Esopus Creek are
two different and distinct water bodies, hydrologically
connected only insofar as both are tributaries of the Hudson
River. (Pet. App. at A58). But for the Tunnel, water from
the Schoharie Reservoir would never reach the Esopus
Creek. (Pet. App. at A6; Pet. at 6). Water leaving the
Schoharie would naturally flow north to the Schoharie
Creek, join the Mohawk River, and flow into the Hudson
River. (Pet. App. at A57-58 (“Under natural conditions,
water from the Schoharie Reservoir would never reach
Esopus Creek.”)).
The water of the Schoharie Reservoir contains high
levels of suspended solids and turbidity.' (See Pet. App. at
A93). The suspended solids and turbidity present in the
Schoharie Reservoir are caused at least in part by erosion in
the Schoharie watershed, including surface runoff and land
disturbance from human activities. (/d. at A93-94; see also
Pet. App. at A6 (“water in the Schoharie Reservoir contains
suspended solids from both natural and man-made
causes”)).” Consequently, water of the Schoharie Reservoir
is highly turbid in comparison with other water bodies in the
' Contrary to Petitioners’ assertion in this petition that turbidity is not a
pollutant, (see Pet. at 20), the court below noted that “[t]he partics do not
contest that turbidity qualifies as a pollutant under the [Clean Water Act]
CWA.” (Pet. App. at A6 n.1). See also CWA § 304(a)(4), 33 U.S.C. §
1314(a)(4) (specifically defining “conventional pollutants” to include
“suspended solids”).
? Petitioners mischaracterize the pollutants in the Schoharie Reservoir as
“naturally occurring.” (Pet. at 10, 20). Inefact, Petitioners stipulated that
the pollutants in the Schoharie Reservoir are not purely natural, but are
caused at least in part by human activities. See Exhibit A, attached at 28
917,324 17.
3
New York City Drinking Water System. In contrast to the
Schoharie Reservoir’s water, the water of the Esopus Creek
is naturally clear, less turbid, and lower in total suspended
solids. (Pet. App. at A28). The Esopus Creek’s naturally
clear water makes it an important habitat for trout. The New
York State Department of Environmental Conservation
(“NY DEC”) has designated the Esopus Creek, between the
outlet of the Shandaken Tunnel and the inlet of the Ashokan
Reservoir, a Class A(T) stream, which signifies high quality
water that is suitable for a trout fishery. See N.Y. Comp.
Codes R. & Regs. tit. 6, § 701.6 (1991).
Discharges of turbidity and suspended solids from the
Shandaken Tunnel have diminished the quality of water in
the Esopus Creek and have all but destroyed the recreational
trout fishery; fishermen no longer fish downstream from the
Shandaken Tunnel Outlet. Compare Exhibit B, attached
(exemplifying the problem Respondents seek to address)
with Exhibit C, attached (upstream vicw at same time and
location). Not only is the increased turbidity in the Esopus
Creek aesthetically offensive, but it has also created
dangerous conditions for fly fishermen to wade into the
water because they cannot see the creek bed or the slippery
coating left on rocks by the discharge. (See Pet. App. at
A90-91). In addition, increased turbidity makes dry fly
fishing more difficult because of the trout’s inability to
perceive dry fly lures in the murky waters. See id at A90.
These cumulative harms have devastated the economic
opportunities for fly fishermen guides and the aesthetic
beauty of the Esopus. See id. at A90-91
Respondents filed this citizen suit in the United
States District Court for the Northern District of New York,
alleging that Petitioners’ discharge of suspended solids and
turbidity from the Shandaken Tunnel into the Esopus Creek
without a permit violated section 301(a) of the Clean Water
4
Act (“CWA”), 33 U.S.C. § 1311(a). See CWA 505(a)(1),
33 U.S.C. § 1365(a)(1) (citizen suit provision). The district
court granted Petitioners’ motion to dismiss for failure to
state a claim. (Pet. App. A24-40). Respondents moved for
reconsideration on the grounds that the court accorded
inappropriate deference to the J Jnvironmental Protection
Agency’s (“EPA”) informal position regarding the words
“addition of a pollutant.”’ The court denied Respondents’
motion on the theory that the Shandaken Tunnel does not
“add” pollutants into the Esopus Creek. (Pet. App. A41-51).
Respondents appealed and the Second Circuit Court
of Appeals, in an opinion by Chief Judge John Walker,
unanimously reversed in part, vacated in part,” and remanded
the case. (Pet. App. A52-77). The court ruled that releases
of turbidity from the Shandaken Tunnel qualified as an
“addition” under the plain meaning of the CWA. (See Pet.
App. at A67). Because water from the Schoharie Reservoir
containing turbidity was “artificially diverted from its natural
course” and discharged into the Esopus Creek, “a body of
water utterly unrelated in any relevant sense to the Schoharie
Reservoir and its watershed,” the court concluded that such
discharge was indeed an addition, because the turbidity came
from the “outside world,” meaning “any place outside the
particular water body to which pollutants are introduced.”
(id. at A71-73). The court also rejected Petitioners’ theory
that the Schoharie Reservoir and the Esopus Creek are
unitary or “singular” waters simply because they are both
navigable waters: “Such an interpretation is inconsistent with
the ordinary meaning of the word ‘addition.”” (/d. at A75;
* The CWA does not define the word “addition.”
* The court vacated the judgment only insofar as it related to
Respondents’ claims that Petitioners were discharging heat, because
Respondents failed to specifically include heat in their notice of intent to
sue pursuant to CWA § 505(b)(1)(A), 33 U.S.C. § 1365(b)(1 (A).
5
see also Pet. at 19 n.15). To hold otherwise, the court noted,
would violate the CWA’s “broad and uncompromising
policy of ‘restor[ing] and maintain[ing] the chemical,
physical, and biological integrity of the Nation’s waters.’”
(Pet. App. at A76; see also Pet. App. at Al44, CWA §
101(a), 33 U.S.C. § 1251 (a)).
On remand, the district court granted Respondents’
motion for partial summary judgment on liability, finding
violations of section 301(a) of the CWA for the unpermitted
discharges of turbidity and suspended solids from the
Shandaken Tunnel into the Esopus Creek. (Pet. App. A78-
A84). The court also ordered Petitioner New York City
Department of Environmental Protection (“NYC DEP”) to
obtain a permit pursuant to section 402 of the CWA, 33
U.S.C. § 1342(a) with respect to such releases into Esopus
Creek.’ After a bench trial on civil penalties, the court
assessed $5,749,000 in penalties against Petitioners. (Pet.
App. A85-128).
Petitioners appealed and the Second Circuit Court of
Appeals unanimously affirmed.® (Pet. App. A1-23).
Petitioners asked the Second Circuit to reconsider its 2001
holding in light of two intervening developments: South
Florida Water Management District v. Miccosukee Tribe of
Indians, 541 U.S. 95 (2004), and a 2005 memorandum from
the EPA’s general counsel, (Pet. App. A205), which posited
that water transfers are not subject to the CWA permit
requirement. (Pet. App. at All). First, the court found that
the Miccosukee decision reinforced its earlier rejection of the
* Petitioner NYC DEP applied for a SPDES permit on December 30,
2002.
° The Court did remand the case, however, only for recalculation of the
civil penalties. The civil penalties were thus reduced to $5,225,000. (See
Pet. App. A129-138).
6
“unitary-water theory of navigable waters” relied upon by
Petitioners. (/d. at Al2). Second, the court was not
persuaded by and declined to defer to EPA’s informal
position reflected in the EPA’s 2005 memorandum. (/d. at
A12-13).
Petitioners also argued that a permit for the Tunnel
would interfere with New York’s statutory rights to allocate
water and would thereby violate sections 101(g) and 510 of
the CWA, 33 U.S.C. §§ 1251(g), 1370 (protecting a state’s
authority to allocate water quantities within its jurisdiction).
Citing this Court, the Second Circuit explained that these
provisions preserve state authority to allocate water quantity,
not water quality: “‘|s]ections 101(g) and 510(2) . . . do not
limit the scope of water pollution controls.’” (/d at Al4
(quoting PUD No. | v. Wash. Dep't of Ecology, 511 US.
700, 720 (1994)). The Second Circuit held that Petitioners’
“holistic” arguments about water allocation overlook the
plain language of the CWA:
{W]e pointed out that complex statutes often
have seemingly inconsistent goals that must be
balanced. The CWA seeks to achieve water
allocation goals as well as to restore and
maintain the quality of the nation’s waters.
[Petitioners] and the EPA would have us tip the
balance toward the allocation goals. But in
honoring the text, we adhere to the balance that
Congress has struck and remains free to
change.
(Id. at Al5). Petitioners then filed a petition for panel
rchearing and rehearing en banc, which the Second Circuit
denied. (Pet. App. A139-142).
7
On June 7, 2006, the EPA issued a Notice of
Proposed Rulemaking (Pet. App. A170-204) that would
create a specific exception from National Pollutant
Discharge Elimination System (“NPDES”)’ permitting
requirements for water transfers occurring between waters of
the United States. (See id at A190). The proposed rule
abandons the “unitary waters theory” in both terms and
effect. (See id. (defining a water transfer as occurring
between “two ‘waters of the United States’”)). It also
reasserts the EPA’s position in its 2005 memorandum. (Pet.
App. A205-237).
On September 1, 2006, the NY DEC issued a final
SPDES permit for the NYC DEP’s operation of the
Shandaken Tunnel. The final permit contains flexible
limitations (based on the season) governing the release of
turbidity and suspended solids into the Esopus Creek, and
also includes a number of exemptions from compliance with
effluent limitations for turbidity and temperature.
’ A state may also issue permits if its permitting program is approved by
the EPA. State-issued permits under the CWA are called State Pollutant
Discharge Elimination System (“SPDES”) permits. In New York, the
NY DEC issues SPDES permits. See CWA § 402(b), 33 U.S.C. §
1342(b), 40 C.F.R. § 123.1(d) (2006).
* The same respondents that filed this case are currently challenging this
final permit in New York State Supreme Court, because the NY DEC’s
issuance of the permit constituted errors of law and a violation of lawful
procedure: the permit allows the NYC DEP to operate the Shandaken
Tunnel in violation of State-established water quality standards without
undergoing the regulatory variance procedure that provides the only
proper exceptions to mecting water quality standards. This contravenes
state and federal law. Respondents also object that, in issuing the permit,
the NY DEC has deprived the public of its statutory and regulatory rights
to comment on the appropriate technology-based standard required by the
permit. These respondents are not seeking to shut down the Shandaken
Tunnel, but rather seek to compel the NY DEC to issue a legally
8
ARGUMENT
I
THERE IS NO SPLIT IN THE CIRCUITS, AS EVERY
CIRCUIT TO CONSIDER THE ISSUE HAS AGREED
THAT INTER-BASIN TRANSFERS OF POLLUTED
WATER ARE SUBJECT TO CLEAN WATER ACT §
301. :
A. Every court has reached the same conclusion that
inter-basin transfers of polluted water require a
CWA permit.
In addition to the court below, each federal court that
has considered the issue has required a CWA permit for
transfers of polluted water between two distinct water
bodies. (Pet. App. at A19). Recently, the District Court for
the Southern District of Florida held that a permit was
required for the transfer of water from a polluted canal into a
meaningfully distinct body of water, Lake Okeechobee. See
Friends of the Everglades, Inc. v. S. Fla. Water Mgmt Dist.,
No. 02-80309, 2006 WL 3635465, at *1, *48-*51 (S.D. Fla.
Dec. 11, 2006). In another case on point, the First Circuit
required a ski area to obtain a permit for pumping polluted
river water through pipes directly into a pristine pond. See
Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1297-98 (Ist
Cir. 1996)?
sufficient permit that controls the release of turbidity and suspended
solids into the Esopus Creck without illegal exemptions.
® Petitioners attempt to distinguish Dubois by claiming that, unlike the
case at bar, the water was “commercially exploited” for snowmaking use
before it was discharged into the pond. (Pet. App. at 15 n.12). This
argument ignores both the facts and holding in Dubois. The First Circuit
noted that the polluted river water was pumped directly into the pond in
May and December of cach year to maintain water levels and to provide
The Ninth Circuit also required a permit for the
discharge of polluted groundwater through a point source to
a surface stream. See N. Plains Res. Council v. Fidelity
Exploration & Dev. Co., 325 F.3d 1155 (9th Cir. 2003). The
Commonwealth Court of Pennsylvania even concluded that
inter-basin water transfers were subject to CWA permitting
requirements. See Del-Aware Unlimited, Inc. v. Dep't of
Envtl. Res., 508 A.2d 348 (Pa. Commw. Ct.), appeal denied,
523 A.2d 1132 (Pa. 1986). In each case above, the court
found that the transfer of pollutants from one body of water
that are discharged into a separate, distinct body of water
constituted an “addition” under CWA § 301, 33 U.S.C. §
1311.
drinking water for a nearby town. See 102 F.3d at 1277-79. Water from
both the river and pond was also piped to snowmaking equipment on
Loon Mountain, which was then discharged into the pond. /d. at 1278.
The court held that regardless of whether water is “commercially
exploited,” a NPDES permit is required if, during the transfer of water, it
loses its status as a “water of the United States,” which was the
circumstance in this case. See id. at 1297. In essence, the court did not
find the presence of “commercial exploitation” significant. See id.
'° Petitioners cite Committee to Save Mokelumne River v. East Bay
Municipal Utility District, 13 F.3d 305 (9th Cir. 1993) and United States
v. Law, 979 F.2d 977 (4th Cir. 1992) for the proposition that some courts
have held that the diversion of water containing preexisting pollutants
from one water body to another wholly distinct water body does not
constitute an “addition.” (Pet. at 18). However, neither of these cases
address the issue in the context of an inter-basin water transfer. Rather,
both courts upheld CWA _ liability for facilities that collected
contaminated runoff and discharged this runoff to surface waters and
rejected claims that a facility that merely transfers preexisting pollutants
is not subject to CWA regulation. This Court also unanimously held that
the CWA regulates point sources that do not themselves generate
pollutants. S. Fla. Water Mgmt Dist. v. Miccosukee Tribe of Indians, 541
U.S. 95, 105 (2004). As such, Mokelumne River and Law do not produce
incongruous results to the instant case.
10
B. The decision below is entirely consistent with
this Court’s remand in Miccosukee.
In Miccosukee Tribe of Indians v. South Florida
Water Management District, 280 F.3d 1364 (11th Cir. 2002),
the Eleventh Circuit ruled consistently with the First,
Second, and Ninth Circuits, holding that the transfer of
pollutants (phosphorus) from a flood control canal to an
undeveloped wetland required a NPDES permit. The court
of appeals concluded that “addition” of a pollutant means
addition from the outside world, where “outside world”
includes “‘any place outside the particular water body to
which pollutants are introduced.’” Jd. at 1368, n.5 (quoting
Pet. App. at A71).
This Court granted certiorari and vacated and
remanded the decision on narrow grounds. See S. Fla.
Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 US.
95 (2004). The Court affirmed the reasoning below on the
question presented; specifically, a point source need not
generate pollutants, but need only convey the pollutants to
be subject to CWA regulation. /d. at 105. The Court went
on to vacate the decision below on the grounds that the
district court’s summary judgment determination that the
canal and the wetland were different water bodies was
premature on the record before it, and remanded for a
determination whether the two water bodies were
hydrologically connected or distinct. See id. at 99.
Thus, this Court’s Miccosukee decision intimated that
if the canal and wetland are meaningfully distinct, a NPDES
permit would be required for the inter-basin water transfer
because pollutants are “added” from the outside world. See
id. at 112. To illustrate the situation when a statutory
“addition” would not occur, this Court quoted the Second
Circuit in the instant case with approval: “As the Second
1]
Circuit put it in 7rout Unlimited, ‘[i|f 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.”” Jd. at 109-10 (quoting Pet. App. at A72). By
remanding the Miccosukee case for a trial to determine
whether the waters involved in that case were “two pots of
soup, not one,” id. at 110, this Court clearly adopted the
Second Circuit’s distinction between inter-basin transfers
(for which a permit is required) and intra-basin transfers (for
which no permit would be required) as being legally
significant under the Clean Water Act. The Second Circuit’s
conclusion that an “addition” from the “outside world”
occurs when polluted water from the Schoharie Reservoir is
discharged into the separate and distinct Esopus Creek is,
therefore, consistent with this Court’s understanding behind
the remand in Miccosukee.
Il
THE COURT’S INTERVENTION IS BOTH
UNTIMELY AND UNWARRANTED IN LIGHT OF
THE EPA’S PENDING RULEMAKING.
Petitioners ask the Court to either grant the petition
while relevant rulemaking is pending or hold the case until
the EPA adopts a final rule. (See Pet. at 30). If the Court
grants certiorari, any decision it makes could be subject to
modification by the EPA rulemaking proceeding and judicial
review of any final rule. See CWA § 509(b)(1), 33 U.S.C. §
1369(b)(1); Administrative Procedure Act (“APA”) 5 U.S.C.
§ 702. The time is simply not ripe for the Court to have the
last word on inter-basin water transfers. Instead of gencrating
a complex legal and procedural mess, the Court should allow
the pending rulemaking to run its normal course, and defer
resolution of this issue to a proceeding challenging the final
rule.
12
A. Granting certiorari would not finally resolve the
issue given the pendency of EPA’s rulemaking.
If this Court affirms the Second Circuit, the EPA’s
forthcoming rulemaking could potentially overrule this
Court’s decision. This would violate the principle of
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), that “Congress
cannot vest review of the decisions of Article III courts in
officials of the Executive Branch.” Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 218 (1995). Assuming the final
rule will reassert the proposed rule, further litigation will be
required to determine (1) whether this Court’s interpretation
of inter-basin water transfers was the only possible
interpretation or just the “best one”; (2) whether the final
rule is entitled to Chevron deference; and (3) whether the
rule is a permissible interpretation of the CWA or arbitrary
and capricious. See Nat’! Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 125 S. Ct. 2688 (2005); Chevron v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
Under Brand X, this Court squarely held that a
“court’s prior judicial construction of a statute trumps an
agency construction otherwise entitled to Chevron deference
only if the prior court decision holds that its construction
follows from the unambiguous terms of the statute and thus
leaves no room for agency discretion.” 125 S. Ct. at 2700. In
the instant case, the Second Circuit unanimously affirmed —
twice — that Petitioners’ discharge of suspended solids from
the Shandaken Tunnel into the Esopus Creek constituted an
“addition” within the plain meaning of the CWA; no other
permissible interpretation of the statute was conceivable.
(See Pet. App. at AIS, A71, A76). As the court of appeals
explained, “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
13
‘navigable water,’ and the terms of the [CWA| are satisfied.”
(Pet. App. at A73; see also id. at A71, A76 (holding that “the
transfer of water containing pollutants from one body of
water to another, distinct body of water is plainly an addition
....[N]one of the statute’s broad purposes sways us from
what we find to be the plain meaning of its text’”’)). By
finding the terms of the statute unambiguous as applied to
Petitioners’ inter-basin transfer of polluted water, the Second
Circuit’s affirmation of the plain meaning of the CWA
trumps any contrary interpretation by the EPA.
Under Brand xX, the EPA cannot correct a
misinterpretation of law when a federal court declared the
law to be unambiguous. See 125 S. Ct. at 2700; cf
Hayburn’s Case, 2 U.S. (2 Dall.) 409. To avoid this
awkward result, for a decision by the Supreme Court in this
case to have finality, the Court’s opinion must garner
majority votes‘for a “plain meaning” or “specific intent”
interpretation that the CWA regulates inter-basin water
transfers. Final resolution of the water transfer issue is best
deferred until the EPA adopts a final rule, and that rule has
been reviewed by the lower courts before being presented to
the Supreme Court for a final judicial determination of the
proper interpretation of the CWA term “addition.”
B. It is inappropriate for the Court to consider the
final rule on this record.
If the Court grants certiorari and the final rule is
promulgated during bricfing, then the Court could consider
the final rule to settle the issue. But nothing would be more
inappropriate than for the Court to conduct judicial! review of
the final rule when the rulemaking record is not before the
Court. Without the benefit of the administrative record, full
briefing, and lower court review, the Court cannot possibly
address the validity of the final rule. Not until after the final
14
rule goes through all the various procedural challenges
would the question of any final rule’s validity be ripe for
review.
It should be noted that Petitioners assume that the
proposed rule makes the final rule a fait accompli. Their
assertion that the rule “wi// confirm that water transfers are
not subject to the NPDES permitting program. . . . [The rule]
will thus answer precisely the question that was before the
Second Circuit . . . .” (Pet. at 27) (emphasis added) is highly
speculative because nothing indicates that the final rule will
confirm the legal premise underlying the proposed rule.
During the public comment period, numerous and extensive
comments on the proposed rule were submitted. Many
comments challenged the legality of the proposed rule and
also raised issues the EPA never identified.'’ Presumably,
the EPA is now considering all of these comments.
Petitioners assume that this notice and comment period will
have no impact on the final rule, when in fact such
comments could very well change the final rule’s result.
Such speculation is a perfect example why this petition is not
ripe for the Court’s review.
_ There is no reason to hold for the final rule.
Petitioners’ alternate request to hold the petition for
the final rule is unwarranted. They do not cite a single case
where the Supreme Court held a petition, or granted and
vacated, based on a pending rulemaking. The existence of
EPA’s pending rulemaking warrants denial of the petition,
'' For example, Respondents raised the concern that the proposed rule
would violate Executive Order 13112, issued to prevent the introduction
of invasive species. See 64 Fed. Reg. 6,183 (Feb. 9, 1999). Water
transfers not subject to a NPDES permit will induce the addition or
transfer of invasive species across water bodies.
15
not the addition of further delay after five years of litigation.
There is no certainty if or when a final rule will ever be
issued, and the average time for a rulemaking process, not
including litigation, is three years. See Jody Freeman &
Laura 1. Langbein, Regulatory Negotiation and _ the
Legitimacy Benefit, 9 N.Y.U. Envtl. L.J. 60, 76-77 (2000).
During that time, a hold would allow the NYC DEP to
continue polluting the Esopus Creek in expectation of a rule
that, even if promulgated after notice and comment, would
likely fail judicial review.
Moreover, holding the petition will not affect the
judgment in this case. If the EPA later “changes” the law in
a final rule to exclude inter-basin water transfers from CWA
permitting requirements, this would not undo the fact that the
NYC DEP was in violation of the law, as declared by the
Second Circuit, every day for which it was assessed a civil
penalty. (See Pet. App. at A134 (civil penalty
calculation)).'" The EPA’s rulemaking cannot affect the
penalty judgment where the Second Circuit twice declared
that the NYC DEP’s discharges violated the plain meaning
of the CWA.'* See Brand X, 125 S. Ct. at 2700. In addition,
the NYC DEP has now complied with the injunctive relief
by obtaining a SPDES permit.
12
The district court only assessed civil penalties for the days of
violations occurring after the Second Circuit's October 2001 decision
that specifically held NYC DEP to be in violation of the CWA.
13
The final rule will also have no retroactive effect. See Bowen v
Georgetown University Hospital, 488 U.S. 204 (1988); see also APA 5
U.S.C. § 554(1). Petitioners will not be excused from compliance during
the time period penaltics were assessed.
16
Il
THE DECISION BELOW IS CORRECT.
A. The Second Circuit’s unanimous holding applies
the plain language of the Clean Water Act.
The principal, unwavering objective of the Clean
Water Act is to “restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” (Pet. App. at
A144, CWA § 101(a), 33 U.S.C. § 1251(a)). To accomplish
this goal, the CWA prohibits “the discharge of any pollutant
by any person” without or in violation of a permit. (/d. at
A147, CWA § 301(a), 33 U.S.C. § 1311(a)). This translates
to the prohibition of “any addition of any pollutant to
navigable waters of the United States from any point
source.” (/d. at Al66, CWA § 502(12), 33 U.S.C. §
1362(12) (emphasis added)).
Petitioners’ discharge of turbidity and suspended
solids from the Shandaken Tunnel into the Esopus Creek
falls squarely within the CWA’s definition of “discharge of a
pollutant.” (See id.) The court below twice declared that
Petitioners’ conveyance of water containing turbidity and
suspended solids from one watershed, through a tunnel
underneath a mountain range into higher quality waters of a
trout fishery in a separate and distinct watershed, constituted
‘an addition of a pollutant from a point source into a
navigable water under CWA § 301, 33 U.S.C. § 1311. (See
Pet. App. at Al5; A67). The unresolved factual question in
Miccosukee was whether the canal and the wetland area are
meaningfully distinct water bodies. See 541 U.S. at 112.
Conversely, this Court already has the answer in the instant
case: the Schoharie Reservoir and the Esopus Creek are not
hydrologically connected because they are located in two
17
separate and distinct watersheds.'* This is not a case where
the soup ladle pours soup back into the same pot; rather, the
soup ladle is pouring soup into a different pot located on a
different stove.
Desperate for any grounds of reversal, Petitioners
raise new questions about whether the CWA § 301 elements
of “pollutant,” “navigable water,” and “point source,” are
satisfied, even though these elements were not at issue in the
court below. (See Pet. at 17, 19-20). In fact Petitioners
either stipulated or did not dispute the CWA elements they
now seek to raise for the first time in a petition for certiorari.
First, it is undisputed that suspended solids and turbidity
discharged by Petitioners are pollutants regulated under the
CWA. (See Pet. App. at A81-82). As explained supra in
footnote 1, CWA § 304(a)(4), 33 U.S.C. § 1314(a)(4) defines
“conventional pollutants” to include “suspended solids.”
When rock, sand, and cellar dirt (which are pollutants
defined by CWA § 502(6)) are suspended in water, they
become suspended solids and make the water turbid. See,
e.g., Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 939
n.l (9th Cir. 2004) (“Turbidity refers to ‘suspended
sediment,’ or the amount of dirt in the water.”). Moreover,
Petitioners do not dispute that turbidity qualifies as a
pollutant under the CWA.” (Pet. App. at A6 n.1). Second,
the NYC DEP specifically admitted that the Esopus Creek is
a navigable water.'> (See Exhibit A, attached at 29 § 27, 33 4
'* Throughout their brief, Petitioners disingenuously failed to make clear
to the Court the lack of any hydrological connection between the
Schoharie and the Esopus. As the Second Circuit stated, “Absent the
man-made diversion through the Tunnel, water from the Schoharie
Reservou would never reach the Esopus Creek.” (Pet. App. at A6).
'* Because there is no question that the Esopus Creck is a navigable
water of the United States, Petitioners’ suggestion that the absence of the
word “any” before “navigable waters” means something less than “any
navigable waters” fails. (See Pet. at 17).
18
27; see also Pet. App. at A81). Third, and perhaps the most
misleading, is Petitioners’ omission of the word “tunnel”
when quoting the CWA definition of “point source” to
suggest that the discharge of turbidity and suspended solids
is really “non-point source” pollution. (Pet. at 19-20). The
Shandaken Tunnel is clearly a point source because the
actual definition of “point source” includes the word
“tunnel”:
The term “point source” means 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.
(Pet. App. at A166, CWA § 502(14), 33 U.S.C. § 1362(14)
(emphasis added); see also A8i (“Nor can there be any
dispute that the Shandaken Tunnel is a point source.”’)).
B. This is not a “unitary waters” case.
Petitioners reassert the so-called “unitary waters”
theory, which posits that “waters of the United States’ form a
collective body ... .” (Pet. at 19 n.15).!° They argue that the
transfer of pollutants from one body of navigable water to
another does not “add” anything to the latter, id. at 16-19,
even though the water bodies are eighteen miles apart in two
'© Under the “unitary waters” theory, the statutory term “waters of the
United States” would be given a “unitary” interpretation such that all
navigable waters of the United States are considered one unitary water
body, whereby pollutants already in such waters could not logically be
added to waters of the United States. (See Pet. App. at A75).
19
separate watersheds. But the EPA has now abandoned this
theory'’ and both panels in the Second Circuit unanimously
rejected this approach: “[T]his 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.” (Pet. App. at A9; see also Pet. App. at A75).
The court below correctly rejected this theory because it
would be absurd to deny that Petitioners are adding
pollutants “from the outside world” into the Esopus Creek.
The Esopus Creek represents the paradigmatic case in
which polluted water is discharged into a trout stream and
violates state water quality standards. Pursuant to New York
law, a discharge violates water quality standards of the
Esopus Creek if it creates a “substantial visible contrast to
natural conditions” in the water. N.Y. Comp. Codes R. &
Regs. tit. 6, § 703.2 (1991); compare Exhibit B, attached
(substantial visible contrast) with Exhibit C, attached
(upstream view at same time and location). Because such
standards directly affect the parameters of NYC DEP’s
SPDES permit, a “unitary waters” approach to regulation
would not reduce the turbidity and suspended solids that
have beset this individual water body. See Miccosukee, 541
USS. at 107.
'’ The EPA has abandoned the “unitary waters” theory in both terms and
effect. In its proposed rule and 2005 memorandum, the EPA refers to
water transfers as occurring “between two ‘waters of the United States.’”
(Pet. App. at A190; see also A206). ‘This definition forecloses any
possible interpretation that the waters of the United States be viewed as a
unitary water body.
20
ee Petitioners’ reliance on Gorsuch and
Consumers Power is misplaced.
Petitioners attempt to confuse the issues in this case
by arguing that 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 (6th Cir. 1988), are
controlling. (See Pet. at 17-18, 21). Both circuits held that
water drawn from and then released back into the same water
body is not an “addition” to navigable waters under the
CWA. See 693 F.2d at 183; 862 F.2d at 587. Contrary to
Petitioners’ assertion, Gorsuch and Consumers Power are
inapposite to the instant case because, as noted by the
Second Circuit, they involved “recirculation of water,
without anything added ‘from the outside world.’” (Pet.
App. at A71).
In Gorsuch, the D.C. Circuit held that water passing
through a dam into a stream did not constitute a discharge
from a point source under the CWA. See 693 F.2d at 183.
The court in Consumers Power addressed the same issue
with respect to a hydroelectric turbine that entrained fish as it
pumped water uphill and then returned the water plus the
mutilated fish to the same water body. This process was also
found not to constitute an addition, because the fish were
already present in water; only their physical form changed.
See 862 F.2d at 587.
While acknowledging the Gorsuch gloss on the
statutory term of “addition” to require an addition “from the
outside world,” 693 F.2d at 174, the Second Circuit drew the
inescapable conclusion that polluted water transferred miles
under a mountain range “strains past the breaking point the
assumption of ‘sameness’ made by the Gorsuch and
Consumers Power courts.” (Pet. App. at A72). The court
explained:
21
Here, water is artificially diverted from its
natural course and travels several miles from
the Reservoir through the 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.
(Id. at A72-A73).
Moreover, the Gorsuch decision was based almost
exclusively on deference to informal EPA interpretations of
the term “addition.” See Gorsuch, 693 F.2d at 183. Those
types of informal agency interpretations are no longer
entitled to Chevron deference under this Court’s decision in
Christensen v. Harris County, 529 U.S. 576 (2000).
Gorsuch and Consumers Power not only presented critically
different facts, they are also of questionable precedential
value under current law.
IV
THE REQUIREMENT OF A CWA PERMIT DOES
NOT UNDULY BURDEN NEW YORK CITY’S
ABILITY TO TRANSFER WATER.
A. The Supreme Court held that CWA § 101(g)
presumes legitimate regulation of water quality.
Petitioners complain that a SPDES permit would not
only significantly impair their ability to allocate water to
New York City, but it would also violate CWA § 101(g), 33
22
U.S.C. § 1251(g). (See Pet. at 25-26). This is simply
untrue.'* The CWA requires state water allocation systems
to accommodate legitimate water quality regulations.
Section 101(g), which preserves the states’ authority to
allocate water quantity and water rights, does not preclude
the regulation of water quality through the NPDES permit
program. Congress’ directive strikes a balance by respecting
existing water allocation systems while simultaneously
preventing and reducing pollution of the nation’s waters:
“Federal agencies shall co-operate with State and local
agencies to develop comprehensive solutions to prevent,
reduce and eliminate pollution in concert with programs for
managing water resources.” (Pet. App. at A146).
Indeed, this Court upheld the primacy of the CWA’s
water quality regulations over the reservation of water
allocation authority in PUD No. / v. Washington Department
of Ecology, 511 U.S. 700, 720 (1994) (“Sections 101(g) and
510(2) . . . do not limit the scope of water pollution controls
that may be imposed on users who have obtained, pursuant
to state law, a water allocation.”). The court below also
declared that “the power of the states to allocate quantities of
water within their borders is not inconsistent with federal
regulation of water quality.” (Pet. App. at A13-14).
B. New York City conceded thata SPDES permit
allows for flexibility.
In hearings related to its SPDES permit application,
the NYC DEP endorsed the flexibility of the CWA permit
scheme as well as the flexibility built into its own permit.
(See Pet. App. at Al6 n.6). For example, the permit
limitations on the discharge of turbidity and suspended solids
18
The court below found Petitioners’ claim to be “alarmist and
unwarranted.” (Pet. App. at A18).
23
change with the season and the permit also contains
numerous exemptions from meeting water quality
standards.'? The NYC DEP could also seek a temporary
exemption from compliance with water quality standards if
the NY DEC grants a variance.”°
Requiring a SPDES permit for the conveyance of
polluted water does not unduly burden the NYC DEP’s
ability to allocate water or infringe on its water rights. New
York City still holds a right to water; the permit requirement
simply means that if the NYC DEP wishes to move polluted
water to another water body and discharge it through a point
source, it must obtain a permit relating to the quality of the
water being moved. Petitioners’ transfer of polluted water
through the Shandaken Tunnel precludes the achievement of
New York State water quality standards needed to protect the
trout fishery and recreational uses of the Esopus Creek. The
only hope of achieving this standard is for the NY DEC to
develop a permit with appropriate turbidity limits and
technology-based requirements for the Shandaken Tunnel
discharge.
'" Various respondents here are challenging the permit’s level of
flexibility due to the numerous built-in exemptions. See supra note 8.
*° The NY DEC will grant a “variance” if the requestor demonstrates,
inter alia, that achieving an effluent limitation is not feasible because
“naturally occurring pollutant concentrations prevent attainment of the
standard or guidance value.” N.Y. Comp. Codes R. & Regs. tit. 6, §
702.17(b)(1) (1998); see also CWA § 301(m)-(n), 33 U.S.C. § 131 1¢m)-
(n) (the federal variance provisions). Respondents argue in their permit
challenge that NYC DEP never properly applicd for, nor has the NY
DEC ever granted, a variance for the operation of the Shandaken Tunnel.
24
Vv
THE EPA’S PROPOSED RULE IS NOT ENTITLED
TO DEFERENCE.
Petitioners make much of the fact that the Second
Circuit ignored and failed to defer to the EPA’s six-day-old
proposed rule on water transfers.”! (See Pet. at 4). Under
settled law, however, the proposed rule is entitled to little, if
any, deference. Courts do not accord authoritative deference
to a pending rule. See, e.g., Goodlin v. Medtronic, Inc., 167
F.3d 1367, 1375 n.15 (11th Cir. 1999) (refusing to give the
FDA’s proposed rule any authoritative weight or deference);
Public Citizen, Inc. v. Shalala, 932 F. Supp. 13, 18 n.6
(D.D.C. 1996) (citing Public Citizen Health Research Group
v. Comm’r, FDA, 740 F.2d 21, 32 (D.C. Cir. 1984) (noting
that a “tentative conclusion articulated in a_nonfinal,
proposed rule does not command deference from the Court
nor is it binding on the agency”). Under United States vy.
Mead Corp., 533 U.S. 218, 221 (2001), administrative
decisions not subject to Chevron deference may be entitled
to a lesser degree of deference — to the extent the agency’s
position is persuasive. Full deference under Chevron is only
given to regulations that were promulgated after a full notice
and comment period, or after similar formalities. See, e.g.,
Perez v. Ashcroft, 236 F. Supp. 2d 899, 903 (N.D. Ill. 2002).
Because the EPA’s proposed regulation has yet to be
promulgated to represent the agency’s final interpretation of
the CWA, the Court should not apply Chevron deference to
this pending rule.
*! Had the notice of proposed rulemaking been issued much earlier, it
would not change the Second Circuit’s decision because the proposed
rule simply reasserts the 2005 EPA memorandum, which the court below
devoted a number of paragraphs to in its opinion. (See Pet. App. at A10-
11, Al2 0.5). In addressing the agency interpretation, the court reviewed
it, considered it, and rejected it as being unpersuasive. (/d at Al2 n.5).
25
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be denied.
Respectfully Submitted,
PS ne
KARL S. COPLAN
Counsel of Record
DANIEL E. ESTRIN
PACE ENVIRONMENTAL LITIGATION CLINIC, INC.
Attorneys for 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.
78 North Broadway
White Plains, New York 10603
(914) 422-4343
(914) 422-4437 (Fax)
26
EXHIBITS
27
EXHIBIT A
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CATSKILL MOUNTAINS CHAPTER OF
TROUT UNLIMITED, INC., THEODORE GORDON
FLYFISHERS, INC., CATSKILL-DELA WARE
NATURAL WATER ALLIANCE, INC., FEDERATED
SPORTSMEN'S CLUBS OF ULSTER COUNTY, INC., and
RIVERKEEPER, INC.
Plaintiffs,
-against-
THE CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF ENVIRONMENTAL PROTECTION, and
JOEL A- MTELE, SR., COMMISSIONER OF
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Defendants.
---- X
CIVIL ACTION
NO. 00-CV-511
(FJS/RFT)
PLAINTIFFS' STATEMENT OF MATERIAL FACTS IN
SUPPORT OF THEIR MOTION FOR PARTIAL
SUMMARY JUDGMENT
Pursuant to Local Rules 56.1 and 7.1, Plaintiffs submit the
following Statement of Material Facts in Support of their Motion for
Partial Summary Judgment:
1. Plaintiff Catskill Mountains Chapter of Trout Unlimited,
Inc. ("C.M.C.T.U.") is a not-for-profit corporation, organized under
the laws of the State of New York. The
28
13; N.Y.C. D.E.P., Turbidimetric Characteristics of the
Schoharie Reservoir Report. 1. 8 (1998), attached hereto as Ex. 9;
N.Y.C. D.E.P., Photograph: Sept. 19, 1999 - Schoharie Reservoir
Gatehouse, attached hereto as Ex. 17.
17. The suspended solids present in the Schoharie Reservoir
are caused at least in part by erosion in the Schoharie watershed,
including erosion resulting from land disturbance from human
activities. N.Y.C. D.E.P., New York City's 2001 Watershed
Program Summary, Assessment and Long-Term Plan submitted to
the federal EPA Environmental Protection Agency pursuant to the
May 1977 New York City Filtration Avoidance Determination
("2001 FAD Report") 237 (Dec. 2001), attached hereto as Ex.
10; N.Y.C. D.E.P., Short- and Long-Term Plans to Reduce
Turbidity in the Schoharie and Ashokan Reservoirs, 1-2 (1993),
attached hereto as Ex. 11.
18. The Schoharie Reservoir contains a high level of turbidity
compared with other waterbodies within the New York City
Drinking Water System. 1997 DEIS at 3-8 & 3-9. attached hereto as
Ex. 5; 2001 FAD Report at 270, attached hereto as Ex. 10; N.Y.C.
D.E.P., Spatial Distribution and Characterization of Sediment Flux
in Ashokan Reservoir. 63 (1996), attached hereto as Ex. 12; N.Y.C.
D.E.P., Turbidimetric Characteristics of the Schoharie Reservoir
Report, 1, 8. attached hereto as Ex. 9; N.Y.C. D.E.P., 1987-1998
Catskill District Liinnology Data for the Schoharie Reservoir,
attached hereto as Ex. 13; N.Y.C. D.E.P., Photograph: Sept. 19,
1999 — Schoharie Gatehouse, attached hereto as Ex. 17.
19. The natural water conditions of the Esopus Creek are
almost always more clear, or less turbid and lower in total
suspended solids, than the water of the Schoharic basin. N.Y.C.
D.E.P., 1987-1998 Catskill District Limnology Data for the
Schoharie
29
23. The discharges from the Shandaken Tunnel into the
Esopus Creck almost always contain a higher level of turbidity and
total suspended solids than the natural water conditions of the
Esopus Creek. Summary’ Table of Turbidity and Suspended
Solids from January 1. 1987 through December 30, 1998, attached
hereto as Ex. 36; N.Y.C. D.E.P., 1987-1998 Catskill District Stream
Data for Sampling Site "ES," attached hereto as Ex. 15; N.Y.C.
D.E.P., 1987-1998 Catskill District Stream Data for Sampling
Site "SRR2,”" attached hereto as Ex. 14; N.Y.C. D.E.P.,
photograph: Shandaken Tunnel Outlet 2; attached hereto as Ex. 18;
Urban Aff. Ex. B (photograph dated | 1/10/01); Urban Aff. Ex. C
(photograph dated | 1/10/01); Urban Aff. Ex. D (photograph dated
1/1/02).
24. The discharges from the Shandaken Tunnel make it
unpleasant for Plaintiffs’ members to fish in the portion of the
Esopus Creek downstream of the Tunncel's outlet and oftentimes
make it unsafe for Plaintiffs’ members to wade into the stream.
Urban Aff. ]] 9; Darrow J] 10; Duffy Aff. J] 9; and Farrell Aff. J] 8.
25. The discharges from the Shandaken Tunnel are unsightly
and aesthetically offensive to Plaintiffs' members. Urban Aff. J] 9;
Darrow §] 10; Duffy Aff. {] 9; and Farrell Aff. ¥] 8.
26. Because of the turbid, muddy conditions in the Esopus
Creek created by Defendants’ discharges, Plaintiffs' members who
are professional fishing guides are no longer able to use the Esopus
Creck to conduct their business. Darrow Aff. J 9, 10, 11.
27. The Esopus Creek is navigable in fact, as it is routinely
traveled by canoe and kayak. Urban Aff. 9] 8; Duffy Aff. J] 8.
28. The Esopus Creek is a tributary of the Hudson River. 1997
DEIS at 1-7, attached hereto as Ex. 5; Meltzer Letter at 1,3,
attached hereto as Ex. 7. The Iludson
7
30
34. Defendants’ violations have continued after March 31,
2000. Urban Aff. ¥] 10; an Farrell Aff. ¥] 9.
35. Neihter E.P.A. nor N.Y.S. D.E.C. has commenced a court
action or administrative proceeding against Defendants related to
the allegations set forth in Plaintiffs’ Complaint. Ans. J] 5.
36. Jurisdiction of this Court is properly invoked pursuant to
section 505 of Clean Water Act, 33 U.S.C. §1365(a) (Clean Water
Act citizen suit provision) and 28 U.S.C. §1311 (federal question).
Cplt. J] 2.
37. Venue is proper in this Court pursuant to section 505(c)(1)
of the Clean Water Act, 33 U.S.C. §1365(c)(1), because the source
of the violations complained is located in the district. Cplt. ] 19, as
admitted by Ans. J 19.
Dated: March 13, 2002
White Plains, New York
REA Ze
Karl S. Coplan
Bar Code 5103 86
Attorney for Plaintiffs
Pace Environmental Litigation
Clinic, Inc.
78 North Broadway
White Plains, New" York 10603
31
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.,
Plaintiffs,
- against —
THE CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
and JOEL A. MELE, SR., COMMISSIONER OF
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Defendants.
00 Civ. 0051 (FJS)(RFT)
DEFENDANTS' RESPONSE TO PLAINTIFFS' LOCAL
RULE 7.1 STATEMENT
Pursuant to Rule 7.1 of the Local Rules of this Court,
defendants, by their attorney, Michael A. Cardozo, Corporation
Counsel of the City of New York, respond to and controvert the
following facts that plaintiffs assert in their Statement of Material
Facts:
1. Deny knowledge or information sufficient to form a belief
as to the truth of the allegations set forth in paragraph | plaintiffs’
Local Rule 7.1 Statement.
2. Deny knowledge or information sufficient to form a belicf
as to the truth of the allegations set forth in paragraph 2 plaintiffs’
Local Rule 7.1 Statement.
3. Deny knowledge or information sufficient to form a belief
as to the truth of the allegations set forth in paragraph 3 plaintiffs’
Local Rule 7.1 Statement.
4. Deny knowledge or information sufficient to form a belief
as to the truth of the allegations set forth in paragraph 4 plaintiffs’
Local Rule 7.1 Statement.
32
15. Admit the allegations set forth in paragraph 15 of
plaintiffs' Local Rule 7.1! Statement.
16. Admit the allegations set forth in paragraph 16 of
plaintiffs' Local Rule 7.1 Statement.
17. Admit the allegations set forth in paragraph 17 of
plaintiffs' Local Rule 7.1 Statement.
18. Admit the allegations set forth in paragraph 18 of
plaintiffs' Local Rule 7.1 Statement.
19. Deny the allegations set forth in paragraph 19 of
plaintiffs’ Local Rule 7.1 Statement. See Affidavit of Michael A.
Principe, Ph. D., sworn to April 18, 2002 ("Principe Aff.") U 34,
35, and 37, and Exhibit C thereto at p. 25.
20. Admit the allegations sct forth in paragraph 20 of
plaintiffs’ Local Rule 7.1 Statement.
21. Admit the allegations set forth in paragraph 21 of
plaintiffs’ Local Rule 7.1 Statement.
22. Admit the allegations set forth in paragraph 22 of
plaintiffs’ Local Rule 7.1 Statement.
23. Admit the allegations set forth in paragraph 23 of
plaintiffs’ Local Rule 7.1 Statement.
24. Deny knowledge or information sufficient to form a belief
as to the truth of the allegations set forth in paragraph 24 of
plaintiffs’ Local Rule 7.1 Statement.
25. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations set forth in paragraph 25 of
plaintiffs' Local Rule 7.1 Statement.
33
26. Deny knowledge or information sufficient to form a
belief as to the truth of the allegations set forth in paragraph 26
of plaintiffs’ Local Rule 7.1 Statement
27. Admit the allegations sct forth in paragraph 27 of
plaintiffs’ Local Rule 7.1 Statement.
28. Admit the allegations set forth in paragraph 28 of
plaintiffs’ Local Rule 7.1 Statement.
29. Admit the allegations set forth in paragraph 29 of
plaintifts' Local Rule 7.1 Statement.
30. Admit the allegations set forth in paragraph 30 of
plaintiffs’ Local Rule 7.1 Statement.
31. Paragraph 31 of plaintiffs' Local Rule 7.1 Statement is
a legal conclusion and is not a statement of a material fact, and
no response is required under Local Rule 7.1. Defendants deny
that the Letter of Intent to Sue notified them of any alleged
violations of the Clean Water Act based on an alleged
discharge of turbidity. See Letter of Intent to Suc, Plaintiffs’
Exhibit 3. q
32. Paragraph 32 of plaintiffs' Local Rule 7.1 Statement is
a legal conclusion and is not a statement of a material fact, and
no response is required under Local Rule 7.1. Defendants deny
that the Letter of Intent to Sue notified them of any alleged
violations of the Clean Water Act based on an alleged
discharge of turbidity. See Letter of Intent to Sue, Plaintiffs’
Exhibit 3.
33. Admit the allegations set forth in paragraph 33 of
plaintiffs’ Local Rule 7.1 Statement.
34
34. The reference to "violations" is a legal conclusion to
which no response is required. Defendants deny that any
"violations" have occurred. Defendants admit that they have
continued to discharge water through the Shandaken Tunnel since
March 31, 2000 and that the discharges have contained levels of
turbidity and suspended solids as set forth in paragraphs 13, 35-
37,41, and 45 of the Principe Affidavit.
35. Admit the allegations set forth in paragraph 35 of
plaintiffs' Local Rule 7.1 Statement
36. Paragraph 36 of plaintiffs’ Local Rule 7.1 Statement is a
legal conclusion and is not a statement of a material fact, and no
response is required under Local Rule 7.1.
37. Paragraph 37 of plaintiffs’ Local Rule 7.1 Statement is a
legal conclusion and is not a statement of a material fact, and no
response is required under Local Rule 7.1.
Dated: New York, New York
April 18, 2002
MICHAEL A. CARDOZO
Corporation Counsel of the
City of New York
Attomcy for Defendants
60 John Street
New York, New York 10038
(212)232-1108
a
Hilary Meltzer(S06619)
Senior Counsel
Environmental Law Division
35
EXHIBIT B
36
EXHIBIT C
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.