Petition for Writ of Certiorari — Friends of the Everglades v. South Florida Water Management District
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, Supreme Court, U.S.
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IN THE OFFICE OF THE CLERK
Supreme Court of the United States
OEY Ect
FRIENDS OF THE EVERGLADES,
FLORIDA WILDLIFE FEDERATION, and
FISHERMEN AGAINST DESTRUCTION
OF THE ENVIRONMENT,
Petitioners,
v.
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT; CAROL WEHLE, Executive Director;
UNITED STATES; UNITED STATES
SUGAR CORPORATION,
Respondents.
ON PETITION FOR A Writ OF CERTIORARI TO THE
UNITED StaTEs Court OF APPEALS FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Davip G. GUEST SEAN H. DoNAHUE
Monica K. REIMER Counsel of Record
E,ARTHJUSTICE DONAHUE & GoLpBERG, LLP
PO. Box 1329 2000 L St., NW, Ste S08
Tallahassee, FL 32302 Washington, DC 20036
(850) 681-0031 (202) 277-7085
sean@donahuegoldberg.com
JOHN FE. CHILDE
150 Indian Mound Trail D Davip. T. GOLDBERG
Tavernier, FL 338070 DoNAHUE & GOLDBERG, LLP
(805) 712-0172 99 Hudson Street, 8 Floor
New York, NY 10013
(212) 334-8813
Attorneys for Petitioners
(Additional Counsel for Petitioners Listed on Inside Cover)
Davip REINER
REINER & REINER, PA
9100 8. Dadeland Blvd.
Suite 901
Miami, FI. 33156
(305) 670-S282
QUESTION PRESENTED
The Clean Water Act prohibits “the discharge of
any pollutant by any person” without a permit
issued pursuant to specified provisions of the Act, 33
U.S.C. 1311(a), and defines “the discharge of a
pollutant” as “any addition of any pollutant to
navigable waters from any point source,” id.
1362(12). The Act defines “navigable waters” to
mean “the waters of the United States, including the
territorial seas.” Jd. 1362(7).
The question presented, discussed but left
undecided in South Fla. Waiter Mgt. Dist. v.
Miccosukee Tribe of Indians of Florida, 541 U.S. 95
(2005), is whether all waters of the United States
may be treated as a “unitary” whole for purposes of
the Act’s provisions requiring permits for point
source discharges, so that transferring pollutants
from one distinct water body to another — in this
case, pumping contaminated water from drainage
canals into an ecologically sensitive lake used for
drinking water — does not constitute an “addition” of
the pollutants to navigable waters and therefore
does not require a permit.
11
PARTIES TO THE PROCEEDING
Petitioners are Friends of the Everglades, Florida
Wildlife Federation, and Fishermen’ Against
Destruction of the Environment. All three
petitioners were plaintiffs in the United States
District Court for the Southern District of Florida
and were appellees before the United States Court of
Appeals for the Eleventh Circuit. Friends of the
Everglades and Florida Wildlife Federation were
also cross-appellants in the Eleventh Circuit.
The Miccosukee Tribe of Indians of Florida was
an intervenor in support of plaintiffs in the district
court and an appellee and cross-appellant in the
court of appeals.
Respondent South Florida Water Management
District, was a defendant in the district court, and
appellant and cross-appellee in the court of appeals.
Carol Wehle, its Executive Director, was, in her
official capacity, a defendant in the district court,
and an appellant in the court of appeals. The United
States Sugar Corporation and the United States of
America were intervenors in support of defendants
in the district court, and appellants in the court of
appeals.
RULE 29.6 STATEMENT
None of petitioners has a parent company, and
none has issued stock.
111
TABLE OF CONTENTS
QUESTION PRESENTED ........................ 0008.
PARTIES TO THE PROCEEDING ................. ll
RULE 29.6 STATEMENT ......:scccsccscesesscccscecce Ll
TAB OF AP Fe vse vsccescnvevecpecsscnceones iv
TARheee COE AU TARE LID 66. ces cesvesaccasvesves veeesces ¥
Pe MUERTE COMET oes conc cisepcctsccunadvesescccodeansss l
EIT Rav dak ca edsbesisd hie tiv dtnateriaiisiseses ]
STATUTORY PROVISIONS INVOLVED ......... ]
STATEMENT OF THE CASE ...............2....008. l
Fe I Te Ps one snssc0 4p sedesdavends ]
B. The Disputed Discharges ......................65. 3
Ot ae
4
D. The District Court’s Decision ................... 6
E. EPA’s Water Transfers Rule .................... 8
F. The Court of Appeals’ Decision .................. 10
REASONS FOR GRANTING THE WRIT .......... 14
I. CERTIORARI IS WARRANTED
BECAUSE THE COURT BELOW
APPROVED A SWEEPING STATUTORY
EXEMPTION THAT IS CONTRARY
TO THE ACT AND HAS BEEN REJECTED
BY OTHER COURTS OF APPEALS ............ 16
A. The Definition of a “Discharge of a
1V
Pollutant” Does Not Support the
LISRAPY WACEIO TROOLY ic ccccescvesesccccsccssses: 17
B. Numerous Provisions of the Act Refute
the Unitary Waters Theory ................00688. 22
1. The Definition of “Pollutant” ............... 22
2. The Act’s Focus on Protecting Specific
NI occ sss de teed sion sausecacecnkcoeds 24
3. Express Statutory Objectives and
as ii ora hee Cee tae at 27
Il. THIS CASE PRESENTS THE PROPER
OCCASION FOR THE COURT TO ADDRESS
THE IMPORTANT QUESTION LEFT
OPEN TN BEICOCUISURER occ csccsscccncncvessveseses Oe
Se ETE, Sivivecasessvecesssacietasvertimexssessineesiis ee
TABLE OF APPENDICES
APPENDIX A: Court of Appeals Opinion
APPENDIX B:
APPENDIX C:
APPENDIX D:
APPENDIX E:
CFenee ©, FOTO) ccc. coccocccccdvcss la
Final Judgment of the District
Court (June 15, 2007) ......... 39a
District Court, Order on
Remedies of the District
Court (June 15, 2007) ......... 4la
District Court, Findings of
Fact and Conclusions of
Law (Dec. 11, 2006) ............53a
Order Denying Rehearing
I aed en bue st useancven 203a
APPENDIX F: Relevant Statutes ............... 205a
TABLE OF AUTHORITIES
Cases:
Alaska Ctr. for the Envt. v. Reilly,
762 F. Supp. 1422 (W.D. Wash. 1991) .......... 29
Arkansas v. Oklahoma, 503 U.S. 91 (1992) ........ 2
Babbitt v. Sweet Home Chap. of Cmtys. for
Greater Or., 515 U.S. 687 (1995) ...... 00... cece eee.
27
Brown v. Gardner, 513 U.S. 115 (1994) .............. 16
Catskills Mountains Chapter of Trout
Unlimited, Inc. v. City of New York,
ep pe Ee Cee) passim
Catskills Mountains Chapter. of Trout
Unlimited, Inc. v. City of New York,
451 F.3d 77 (2d Cir. 2006) .........cscccec000 passim
Catskills Mountains Chapter of Trout
Uniimited, Inc. v. EPA,
630 F. Supp. 2d 295 (S.D.N-Y. 2009) ............ 10
Chevron U.S.A., Inc. v. Natural Res. Defense
Council, Inc., 467 U.S. 837 (1984) ............ passim
City of Kansas City v. Dept. of Housing
and Urban Dev., 923 F.2d 188
CM te NN nc ors acesag ei era ehcsceikiaadeeuen 18
Clark v. Martinez, 543 U.S. 371 (2005)
Community for Creative Non-Violence v. Reid,
490 U.S. 730 (1989)
Cuomo v. Clearing House, 129 S.Ct. 2710 (2009) ..21
Dague v. City of Burlington, 935 F.2d 1343
(2d Cir.1991)
Dept. of Navy v. Egan, 484 U.S. 518 (1988)
27
Dubois v. United States Dept. of Agriculture,
102 F.3d 1273 (1st Cir. 1996) passim
E.L Du Pont De Nemours & Co. v. Train,
430 U.S. 112 (1977)
EPA v. California, 426 U.S. 200 (1976)
MCI Tel. Corp. v. Amer. Tel. & Tel,
512 U.S. 218 (1994)
Miccosukee Tribe of Indians of Florida v.
South Fla. Water Mgt. Dist., 280 F.3d 1364
(11th Cir. 2002), afd in part, vacated and
remanded, 541 U.S. 95 (2005)
Miccosukee Tribe of Indians of Florida v.
South Fla. Water Met. Dist., 559 F.3d 1191
(11th Cir. 2009)
Milwaukee v. Illinois, 451 U.S. 304 (1981)
Vll
Morrison v. National Australia Bank, Ltd,
DBD Ct, BI CT oc cvincccccsctvccecacccvcscesccsss 16
National Cable & Telecommunications
Ass'n v. Brand X Internet Services,
a Ue re Ce cerscvicacseiaccviec ace 30
National Wildlife Fed'n v. Gorsuch,
693 F.2d156 (D.C. Cir. 1982) ............... 20
Natural Resources Defense Council, Inc. v.
Costle, 568 F.2d 1369 (D.C. Cir. 1977) ............
28
Nixon v. Missouri Mun. League,
BOR UD, Te ose vesteiesecicsseuessseccanae 19
N. Plains Res. Council v. Fidelity Exploration
& Dev., 325 F.3d 1155 (9th Cir. 2003) ........ 10,19
Northwest Environmental Advocates v.
EPA, 537 F.3d 1006 (9 Cir. 2008) .............. ..
32
PUD No. 1 of Jefferson County v. Washington
Dept. of Ecology, 511 U.S. 700 (1994) ......... 2,26
Rapanos v. United States,
S67 U.S. 716 Ge sa this tsiorsinmes 20,22
Santos v. United States, 128 S. Ct. 2020 (2008) ...
24
vill
S.D. Warren Co. v. Maine Bd. of Envtl
Protection, 547 U.S. 370 (2006) ..............008:
2,26
South Fla. Water Mgt. Dist. v. Miccosukee
Tribe of Indians of Fla.,
CS passim
Train v. City of New York, 420 U.S. 35 (1975) ......
2
United Sav. Assn. of Tex. v. Timbers of
Inwood Forest Associates, Ltd.,
CE 19
United States v. Cleveland Indians
Baseball Co., 532 U.S. 200 (2001) ............... 19
United States v. Riverside Bayview Homes,
EE) 20
West Va. Univ. Hosps., Inc. v. Casey,
a 27
Statutes:
Title 1, U.S.C.:
Title 28, U.S.C.:
Neer ei vccacsacnctusnstdsbudesenveccsncaenes l
ee ca cacsdcnvas caubacesecsssesececavcences l
rarer ccnaesanancacsetcesecescccsecessceseses l
errs ci viccscdvensnciccidecessscesescees 9
Title 33, U.S.C, 33:
1251(a)(1)
1251(a)(2)
1311(a) passim
Se LAUD seu ssssnscisceksthserseiaateanaceeee 25
1313(a)
1313(c)(2)
1313(c)(3)
1313(d)
1313(d)(4)(B)
1314(a)
1342(a)
1342()
1342(r)
RIE ksnsse-asauacuansudsescuneusaieswietes cancseniann passim
1362(7) passim
RIG viviscsiv suc ceuenateiaisaseis renee passim
1362(14) passim
REED, <ccincaadonesakcuveredesunancusebanarieciaareunnanan ]
Regulations:
33 C.F.R. 323.2(c)
OO OFT: Cee ink stcacncactcncerieiseieiouinansaaes 9
40 C.F.R. 122.45(g)(4)
40 C.F.R. 131.3(b)
40 C.F.R. 131.3() . 20
40 C.F.R. 232.2 ... ae ey
Miscellaneous:
EPA Office of General Counsel, /n re Riverside
Irrigation Dist., 1975 WL 23864 (1975) ........ 6,21
KPA, Water Quality Standards Handbook
(2d Ed. 1994, rev. 2007) ........... Sannin 25
Fla. Admin. Code 62°302.400 ............. 25
National Pollutant Discharge Elimination
System (NPDES) Water Transfers, Proposed
Rule, 71 Fed. Reg. 32889 (June 7, 2006) ..
National Pollutant Discharge Elimination
System (NPDES) Water Transfers, Final
Rule, 73 Fed. Reg. 33697 (June 13, 2008) . passim
S. REP. No. 95-370 (1977) ......... ccc ccc cccecccces .. 28
William H. Rodgers, Jr., ENVIRONMENTAL LAW
(2d Bd.1994) ........cccceccccccseeess 29
OPINIONS BELOW
The opinion of the court of appeals is published at
570 F.3d 1210 and reproduced in the appendix at la-
38a. The court of appeals’ unpublished order
denying rehearing en banc is reproduced at 203a-
204a. The district court’s unreported opinion is
reproduced at 53a-202a, and its unreported remedial]
order is reproduced at 41a-5la.
JURISDICTION
The district court had jurisdiction under 28
U.S.C. 1331 and 33 U.S.C. 1365(a). The court of
appeals had jurisdiction under 28 U.S.C. 1291.
The court of appeals’ judgment was entered on
June 4, 2009. The court denied petitions for
rehearing en banc on May 7, 2010.
This Court’s jurisdiction is invoked under 28
U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The Clean Water Act (Act or CWA) prohibits “the
discharge of any pollutant by any person” except as
provided in the Act, 33 U.S.C. 1311(a), and defines
“discharge of a pollutant” to mean “any addition of
any pollutant to navigable waters from any point
source,” id. 1362(12)(A). Other pertinent provisions
of the Act are set forth in the appendix at 205a-212a.
STATEMENT OF THE CASE
A. The Clean Water Act. Congress enacted the
Act in 1972 “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s
waters,” 33 U.S.C. 125l(a)(1), the “national goal’
being to achieve ‘water quality which provides for
_ 2
the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the
water,” S.D. Warren Co. v. Maine Bd. of
Environmental Protection, 547 U.S. 370, 384 (2006)
(quoting 33 U.S.C. 1251(a)(2)). The Act’s
“comprehensive program for controlling and abating
water pollution,” Train v. City of New York, 420 U.S.
35, 37 (1975), applicable to all “navigable waters,”
broadly defined to mean “the waters of the United
States, including the territorial seas,” 33 U.S.C.
1362(7) — combines a system of permit requirements
and technology-based controls for “point sources,”
with a system of water quality standards for
individual water bodies based upon their biological
characteristics and designated uses. See PUD No. 1
of Jefferson County v. Washington Dept. of
Ecology, 511 U.S. 700, 704 (1994).
The Act makes unlawful “the discharge of any
pollutant by any person,” 33 U.S.C. 1311(a), except
in compliance with specified provisions of the Act,
including Sections 402 and 404. The National
Pollutant Discharge Elimination System (NPDES)
permit program set forth in Section 402, 33 U.S.C.
1342, is the “primary means” for protecting and
improving water quality within the “comprehensive
regulatory regime” established by Congress.
Arkansas v. Oklahoma, 503 U.S. 91, 99, 101 (1992).
NPDES permits, issued by states or EPA, set forth
the conditions for the discharge of pollutants
consistent with various other applicable provisions of
the Act, and must be calibrated to “water quality
standards” applicable to the specific water body into
which the source discharges. See 33 U.S.C.
1311(b)(1C), 1312(a), 1313(a)-(c); Milwaukee v
Illinois, 451 U.S. 304, 318 (1981); EPA v. California,
426 U.S. 200, 204-205 (1976).
3
a
B. The Disputed Discharges. Respondent
South Florida Water Management District’s three
large pumping stations — known as S-2, S-3, and S-4
— convey very large volumes of water from canals
south of Lake Okeechobee, through large pipes,
against gravity and through a dike, into the Lake.
See Pet. App. 84a-87a.! “The flow rate from just one
of the pump stations operating at full capacity” is
“comparable to the flow of a medium-sized Florida
river.” Ja. at 86a. The pump stations convey
phosphorous and numerous other pollutants — in
what the court below called a “loathsome concoction
of chemical contaminants,” id. at 4a — into the Lake,
which is a drinking water reservoir and of great
importance to South Florida’s natural environment.
In 2002, petitioners Friends of the Everglades,
Fishermen Against Destruction of the Environment,
and Florida Wildlife Federation filed suit pursuant
to the citizen enforcement provisions of the Act, 33
U.S.C. 1365(a), asserting that the District’s release
of pollutants without a NPDES permit violated the
Act.2 The District defended on the basis, inter alia,
that the Act’s prohibition should not apply because
its pump stations were noi themselves the origin of
pollutants, but instead merely transferred already-
polluted water.
| The “central feature of the Everglades ecosystem,” the
Lake, 730 square miles in area, “suppllies] water to the
urban, agricultural and natural systems throughout the
southern Florida peninsula.” Pet. App 70a, 72a
2 The Miccosukee Tribe of Indians of Florida intervened
as a plaintiff; the United States Sugar Corporation and
the United States intervened as defendants.
ee
C. The Miccosukee Case. The district court
entered a stay pending this Court’s ruling in another
enforcement suit under the Act, involving essentially
the same parties and another South Florida
pumping station known as ‘“S-9,” in which the
Eleventh Circuit had ruled that the District was
obligated to obtain a NPDES permit for the
discharges. 280 F.3d 1364 (2002).
In the S-9 case, this Court unanimously rejected
the District’s argument that its pumping stations are
not “point sources” because the stations do not
generate pollutants, which the District “appearl[ed]
to have abandoned. * * * in its reply brief.” South
Fla. Water Mgt. Dist. v. Miccosukee Tribe of Indians
of Florida, 541 U.S. 95, 105 (2005) (Miccosukee). The
Court explained that the Act’s definition of point
source as a “discernible, confined, and discrete
conveyance,” 33 U.S.C. 1362(14), “makes plain that a
point source need not be the original source of a
pollutant.” 541 U.S. at 105.
Although it upheld the Eleventh Circuit’s
resolution of “the precise question" on which review
had been granted, the Miccosukee Court vacated and
remanded for further proceedings because the court
below had granted summary judgment despite a
genuine factual dispute on a material issue: the
District’s argument that the waters upstream and
downstream of the pumping station were “not
distinct water bodies at all,” but instead two
“hydrologically indistinguishable parts of a single
water body,” meaning that no “addition” was
occurring within the statutory definition of
“discharge of a pollutant.” 541 U.S. at 108-109.
Noting the parties’ agreement that if the waters on
either side of the District’s pump station “are simply
two parts of the same water body,” no NPDES
permit would be required, id. at 109, the Court
borrowed a metaphor from the Second Circuit: “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.” Jd. at 110
(quoting Catskills Mountains Chapter of Trout
Unlimited, Inc. v. City of New York, 273 F.3d 481,
492 (2d Cir. 2001) (Catskills I).
The Miccosukee Court also noted, but declined to
conclusively resolve, a broader argument advanced
by the United States as amicus curiae, namely that
“all the water bodies that fall within the Act’s
definition of ‘navigable waters” should be “viewed
unitarily for purposes of NPDES permitting
requirements.” 541 U.S. at 105-106. If the statute
were read that way, the Court noted, no permit
would be required when water from one navigable
water body is “discharged, unaltered, into another
navigable water body,” even if the two bodies are
“distinct” in every “meaningful” way, and “even if
one water body were polluted and the other pristine,
and the two would not otherwise mix.” Jd. at 106
(citing Catskills I, 273 F.3d at 492, and Dubois v.
United States Dept. of Agriculture, 102 F.3d 1273 (15
Cir. 1996)).3
Although leaving the argument open on remand,
the Court paused to note “several NPDES provisions
3 The Eleventh Circuit had concluded that “in
determining whether pollutants are added to navigable
waters for purposes of the [NPDES requirement], the
receiving body of water is the relevant body of navigable
water,” and that S-9 had “added” pollutants because it
put pollutants in the receiving water body that would not
otherwise have ended up there. 280 F.3d at 1368-69
yy =
that might be read to suggest a view contrary to the
unitary waters approach,” 541 U.S. at 107 (citing,
inter alia, 33 U.S.C. 1313(cX2), 1313(d)); found no
support for the Government’s claim that the “unitary
waters” approach reflected a “longstanding EPA
view,” id. (citing Jn re Riverside Irrigation Dist.,
1975 WL 23864 (EPA Office of General Counsel);
noted that certain EPA regulations seemed to
conflict with the “unitary waters” concept, id. at 107-
108 (citing 40 C.F.R. 122.45(g)4)); and questioned
assertions that there would be dire consequences for
state water management, id. at 108.
On remand, the Miccosukee case was stayed by
the district court pending the current respondents’
appeal (in the instant case) of the district court’s
ruling in favor of the petitioners and the Miccosukee
Tribe. See 559 F.3d 1191, 1197-98 (11th Cir. 2009)
(declining to overturn the stay, noting that the
“unitary waters theory” was “the central argument”
of the District). Therefore, the instant case -—
involving essentially the same parties, although
different pumping stations and water bodies -
became the proceeding in which the lower courts
addressed the “unitary waters” theory.
D. The District Court’s Decision. After
Miccosukee was decided, the district court lifted the
stay in this case and conducted a more than two-
month bench trial, ultimately determining that
operation of the S-2, S-3, and S-4 pump stations
without a NPDES permit violated the Act.
Addressing the question highlighted by this Court in
Miccosukee, the court found that the canals from
which the District's pumps draw water are
“meaningfully distinct” from the Lake into which
they discharge. On the latter point, the court noted
that the water in the canals is chemically and
+. 2
biologically different from that in the Lake; that
pumping of contaminated drainage canal water
harms the Lake; that the waters are “classified
differently under the CWA (the Lake is a Class I
water body and the canals are Class III water
bodies)”; and that “the waters that are backpumped
into the Lake would not otherwise reach the Lake (in
any significant amount, much less in the same
quantities) but for the backpumping activities.” Pet.
App. 174a.
The court then turned to the District’s argument,
echoing the government’s “unitary waters"
submission in Miccosukee (and thereafter embraced
in an EPA regulatory proposal to exempt “water
transfers” from NPDES permitting, 71 Fed. Reg.
32889 (June 7, 2006)) that no permit was required
because the canals from which the pumping stations
draw are themselves “navigable waters” under the
Act. The district court found it “evident" that
“addition * * * to the waters of the United States’
contemplates an addition from anywhere outside of
the receiving water, including from another body of
water,” Pet. App. 159a (citing Miccosukee, 280 F.3d
at 1368, and Catskills Mountains Ch. of Trout
Unlimited, Inc. v. City of New York, 451 F.3d 77, 84
(2d Cir. 2006) (Catskills IT); and rejected EPA’s
contrary interpretation in its proposed rule,
declaring that because congressional intent was
“anambiguous” on the_ point, “no agency
interpretation” could alter that intent. Pet. App.
170a. After taking further briefing on remedies, the
district court entered an injunction requiring the
District to apply for a NPDES permit, relying largely
on unchallenged evidence that the unpermitted
pumping “created a significant risk of triggering a
toxic algal bloom that could cause serious injury to
humans and death to wildlife”; that backpumping
creates “toxic disinfection byproducts that can sicken
humans,” and “causes irreparable ecological harm to
Lake Okeechobee.” Pet. App. 45a-46a.
E. EPA’s Water Transfers Rule. After briefing
in respondents’ Eleventh Circuit appeal was
complete, EPA issued a regulation in essentially the
form proposed two years earlier, exempting “water
transfers” from the NPDES permitting requirement.
73 Fed. Reg. 33697 (June 13, 2008). In the
preamble, EPA explained that “the United States
has taken the position that the Clean Water Act
generally does not subject water transfers to the
NPDES program,” and quoted from the United
States’ Eleventh Circuit brief in this case:
When the statutory definition of “navigable
waters” —i.e., “the waters of the United States,”
33 U.S.C. 1362(7)—is inserted in place of
“navigable waters,” 33 U.S.C. 1362(12) provides
that NPDES applies only to the “addition of any
pollutant to the waters of the United States.”
Given the broad definition of “pollutant,”
transferred (and receiving) water will always
contain intrinsic pollutants, but the pollutants in
transferred water are already in “the waters of
the United States” before, during, and after the
water transfer. Thus, there is no “addition”;
nothing is being added “to” “the waters of the
United States” by virtue of the water transfer,
because the pollutant at issue is already part of
“the waters of the United States” to begin with.
73 Fed. Reg. at 33701 (quoting brief). EPA
expressed its own view that “taken as a whole, the
statutory language and structure of the Clean Water
Act indicate that Congress generally did not intend
ey
to subject water [transfers] to the NPDES program,”
and that “such transfers between navigable waters
do not constitute an ‘addition’ to navigable waters to
be regulated under the NPDES program.” /d.
Recognizing that some courts of appeals had held
that NPDES permits were required for “movement of
pollutants between distinct waterbodies,” EPA
stated that those courts had not “view[ed) the
statutory interpretation [question] through the lens
of Chevron deference.” 73 Fed. Reg. at 33700 n.4,
33701. EPA explained that that a “holistic approach
to the text of the CWA was needed” because of “the
balance Congress created between federal and State
oversight of activities affecting the nation’s waters,”
Id. at 33701-02 (citing CWA Sections 101(g), 102(h),
304(f) and 510(2)), and that “water transfers are
unlike the types of discharges that were the primary
focus of Congressional attention.” Jd. at 33702.
EPA’s resulting regulation creates a new NPDES
“exclusion” for “water transfers,” defined as “any
activity that conveys or connects waters of the
United States without subjecting the transferred
water to intervening industrial, municipal, or
commercial use,” but not including “pollutants
introduced by the water transfer activity itself to the
water being transferred.” 40 C.F.R. 122.3(i).4
4 Petitioners and other parties filed petitions for review
challenging the regulation. Due to uncertainty concerning
the proper forum for reviewing this regulation, actions
were also filed in federal district courts in Florida and
New York. Pursuant to 28 U.S.C. 2112(a)(3), the Judicial
Panel on Miultidistrict Litigation ordered that the
petitions, which had been filed in three the First, Second
and Eleventh Circuits, be litigated in the Eleventh
Circuit, where the petitions were consolidated under
- se.
F. The Court of Appeals’ Decision. The
Eleventh Circuit reversed and held that, in light of
EPA’s rule, the District’s pumping stations were not
subject to the NPDES permit requirement. The
court noted that it was “undisputed” that water
pumped from the three pumping stations contained
“pollutants”; that both the canals and the Lake were
“navigable waters”; and that the three pump
stations are “point sources.” Pet. App. 10a. Instead,
and noting that respondents had not even
challenged the district court's finding that the
drainage canals and Lake Okeechobee were
“meaningfully distinct” waters, id. at 10a-lla & n.4,
the court turned to whether the District could
nonetheless escape a NPDES obligation by reference
to the "unitary waters" theory, i.e., that conveying
pollutants from one distinct navigable water body to
another is not an “addition ... to navigable waters.”
The panel noted that “(t]he unitary waters theory
has a low batting average,” and, “[iJn fact, it has
struck out in every court of appeals where it has
come up to the plate.” Pet. App. 12a (citing
Catskills I, 273 F.3d at 491; Catskills I, 451 F.3d at
83; Dague v. City of Burlington, 935 F.2d 1343,
1354-55 (2d Cir.1991); Dubois, 102 F.3d at 1296;
and N. Plains Res. Council v. Fidelity Exploration
Friends of the Everglades v. EPA, No 08-13652-C (11%
Cir.), and stayed pending the decision in this appeal.
(The district court lawsuits have also been stayed, see
Catskill Mountains Chapter of Trout Unlimited, Inc. v.
U.S. EPA, 630 F. Supp. 2d 295 (S.D.N.Y. 2009)). On
September 10, 2008, the court of appeals denied a motion
by the United States, which was opposed by all other
parties, to stay this appeal and consider it together with
the petitions for review of the Water Transfer Rule
+e
and Dev., 325 F.3d 1155, 1163 (9th Cir. 2003)) — and
noted that “[e]ven the Suprerne Court has called a
strike or two on the theory, stating in Miccosukee
that ‘several NPDES provisions might be read to
suggest a view contrary to the unitary waters
approach.” Pet. App. 13a (quoting 541 U.S. at 107).
“In sum,” the court of appeals stated, “all of the
existing precedent” was “against the unitary waters
theory,” and for the view “that the transfer of
pollutants from one meaningfully distinct navigable
body of water to another is an ‘addition ... to
navigable waters’ for Clean Water Act permitting
purposes.” Pet. App. 14a-15a. The court turned to
whether EPA’s new regulation was entitled to
deference under Chevron USA, Inc. v. Nat. Res.
Defense Council, Inc., 467 U.S. 837 (1984), a question
turning on “whether ‘addition ... to navigable waters’
- meaning addition to ‘the waters of the United
States’ - refers to waters in the individual sense or as
one unitary whole.” Pet. App. 26a.
The court of appeals considered the “common
meaning of the term ‘waters” to be unhelpful,
because “[iJn ordinary usage ‘waters’ can collectively
refer to several different bodies of water such as ‘the
waters of the Gulf coast,’ or can refer to any one body
of water such as “the waters of Mobile Bay. ” Pet.
App. 26a-27a. More decisive, in the court’s view, was
the “conspicuous absence of ‘any’ before ‘navigable
waters’ in § 1362(12),” which “supports the unitary
waters theory because it implies that Congress was
not talking about any navigable water, but about all
navigable waters as a whole.” Jd. at 28a. Petitioners’
view of the statute, the court reasoned (id.),
effectively asks us to add a fourth “any” to the
statute so that it would read: “Any addition of
12
any pollutant to any navigable waters from any
point source.”
The court stated that “if the meaning of language is
plain, no aJteration should be necessary to clarify it,”
and that “[tJhe addition or subtraction of words
indicates that the unaltered language is not plain.”
Pet. App. 28a. Observing that the Act sometimes
says “any navigable waters,” while elsewhere using
“the unmodified ‘navigable waters’ to mean the same
thing,” the court concluded that the text was not
“clear” in favor of the “unitary” reading, either. Id.
at 30a.
The panel acknowledged that accepting the
respondents’ interpretation would have a tendency
to undermine the Act’s provisions targeting water
quality in particular water bodies, and could lead to
“results even more absurd than pumping dirty canal)
water into a reservoir of drinking water’:
If an “addition ... to navigable waters” occurs only
at a pollutant’s first entry into navigable waters,
and not when it is transferred to a different water
body, then the NPDES program-the centerpiece
of the Clean Water Act-would require no permit
to pump the most loathsome navigable water in
the country into the most pristine one.
Pet. App. 33a. The court declared that such a
prospect was “frightening enough that we might
agree with the Friends of the Everglades that the
unitary waters theory does not comport with the
broad, general goals of the Clean Water Act,” but
explained that its obligation was to “interpret and
apply statutes, not congressional purposes.” I/d
(citations and internal quotation marks omitted).
- 134.
The court stated that “there are other provisions
of the Clean Water Act that do not comport with its
broad purpose of restoring and maintaining the
chemical, physical and biological integrity of the
Nation’s waters,” explaining that while non-point
source pollution is a “serious water quality problem,
* * * the NPDES program does not even address it,”
and that “Congress even created a special exception
to the definition of ‘point source’ to exclude
agricultural storm water discharges and return flows
from irrigation, despite their known, substantially
harmful impact on water quality.” Pet. App. 34a
(citing 33 U.S.C. 1362(14)). “The point is," the court
explained, “that it may seem inconsistent with the
lofty goals of the Clean Water Act to leave out of the
permitting process the transfer of pollutants from
one navigable body of water to another, but it is no
more so than to leave out all non-point sources,
allowing agricultural run-off to create a huge ‘dead
zone’ in the Gulf of Mexico.” Jd. at 35.
“Having concluded that the statutory language is
ambiguous,” the Court concluded that “EPA’s
regulation, which accepts the unitary waters theory,”
was permissible, because EPA's construction was
“one of the two readings” that the court had “found
* * * reasonable.” App. 36a.
The court concluded with a hypothetical designed
to help analyze the question of the consistency of the
unitary waters theory with the Act in an “abstract”
manner and free of “contentious policy interests”:
Two buckets sit side by side, one with four
marbles in it and the other with none. There is a
rule prohibiting “any addition of any marbles to
buckets by any person.” A person comes along,
picks up two marbles from the first bucket, and
- }4.~
drops them into the second bucket. Has the
marble-mover “add[ed)] any marbles to buckets”?
* * * Whatever position we might take if we had
to pick one side or the other we cannot say that
either side is unreasonable.
Pet. App. 37a. “Like the marbles rule,” the court
concluded, the section 1362(12) definition was
“ambiguous,” and EPA's regulation was “a
reasonable, and therefore permissible, construction
of the language.” Jd.
REASONS FOR GRANTING THE WRIT
This case squarely presents an issue of great
national importance concerning the scope of the
Clean Water Act’s pivotal permitting program. The
decision below upheld an interpretation of the Act
this Court, in Miccosukee, treated with pronounced
skepticism, and that has been rejected by “all of the
existing precedent,” Pet. App. 14a.
The decision urgently warrants this Court’s
review. The court of appeals disregarded (and
denigrated as ethereal and unenforceable statutory
“purposes”) the very materials — text, structure, and
express legislative objectives — necessary for a court
to carry out its tasks of determining whether a
statute is ambiguous and whether any ambiguity
has been reasonably resolved by the agency. The
court fundamentally misunderstood core provisions
of the Act, turning statutory language designed to
ensure that the waters affected by a discharge are
subject to federal jurisdiction into grounds for a
major new exception to the Act’s comprehensive
point source discharge program. The “unitary
waters” construction the court approved is
irreconcilable — even obviously so — with the Act's
15
plain language, including its express ban on
discharges of a “pollutant” (“dredged spoil,” 33
U.S.C. 1362(6)) that inherently comes from navigable
waters, and its elaborate provisions for protecting
individual water bodies.
The consequences of the decision are far
reaching. This case (like Miccosukee) illustrates the
importance of the permit coverage issue for one of
the United States’ most important and imperiled
natural resources; as the district court found,
discharges like those at issue here have been
significant contributors to chronic environmental
problems in a Lake that is an important drinking
water reservoir.
All courts to have considered the unitary waters
theory have remarked upon its jarring implications
for administration of the Act; as the Eleventh Circuit
here acknowledged, the theory has the "absurd"
consequence of “requirling] no permit to pump the
most loathsome navigable water in the country into
the most pristine one.” Pet. App. 33a. The NPDES
permitting scheme is a critical part of the Act and
the newly minted exemption approved here would
substantially restrict its scope
‘This case, moreover, is the appropriate vehicle to
address the issue: Whereas in Miccosukee the
“unitary waters” argument was belatedly raised (and
only by an amicus), and there were unresolved
factual issues, here the issue was exhaustively
treated in the lower courts, and the district court
entered exhaustive factual findings after a trial]
- 16 -
I. CERTIORARI IS WARRANTED BECAUSE
THE COURT BELOW APPROVED A
SWEEPING STATUTORY EXEMPTION
THAT IS CONTRARY TO THE ACT AND
HAS BEEN REJECTED BY OTHER COURTS
OF APPEALS
Chevron does not immunize agency
interpretations that are inconsistent with the
relevant statute, 467 U.S. at 843-44 & n.9, and a
court “need ‘accept only those agency interpretations
that are reasonable in light of the principles of
construction courts normally employ.” Morrison v.
National Australia Bank, Ltd, 130 S. Ct. 2869, 2887
(2010) (citation omitted). See also Clark v. Martinez,
543 U.S. 371, 402 (2005) (Thomas, J., dissenting).
Here, the construction approved by the Eleventh
Circuit badly fails that test. Seizing on the semantic
possibilities of a few words (together with an
ostensibly “missing" word), the court found itself
duty-bound to uphold an interpretation of the Act
that is inconsistent with prominent features of the
CWA. But ambiguity is “a creature not of
definitional possibilities but of statutory context.”
Brown v. Gardner, 513 U.S. 115, 118 (1994).
The court of appeals’ error is exemplified in its
closing marbles-and-buckets analogy, which
"abstract[s]” away (Pet. App. 37a) all the relevant
statutory context and recasts the case as an
examination of the semantic possibilities presented
by an isolated bit of text of an imaginary statute
whose content and purposes are unknown. The
hypothetical fails: The real statutory definition here
does not exist in isolation, but as part of a complex
regulatory statute the provisions of which rule out
this interpretation, including (as the Miccosukee
Sy
Court suggested) the entire Water Quality
Standards regime, which establishes standards
tailored to individual water bodies and predicates
permit conditions on the specific characteristics of
the receiving water bodies, and the express inclusion
of “dredged spoil” (a pollutant that inherently comes
from navigable waters) as a “pollutant” governed by
the same statutory “discharge” definition that
governs here. Infra, pp. 23-24.
To make the Eleventh Circuit’s marbles-and-
buckets hypothetical minimally apt, the hypothetical
would need to posit specific “marble concentration
standards” for individual buckets, see 33 U.S.C.
1313, 1314(a) (water quality standards and criteria);
to require that marbles placed in buckets be
consistent with those standards, see id. 1312,
1342(a), and to define “marbles” to include “marbles-
extracted-from-buckets," id. 1362(14) (“dredged
spoil”). The “unitary waters” construction is simply
not consonant with the provisions of the non-
hypothetical Clean Water Act.
A. The Act’s Definition of a “Discharge of a
Pollutant” Does Not Support the Unitary
Waters Theory
It is undisputed that the District’s pumping
stations are “point sources,” that the chemical
contaminants in the water pumped into Lake
Okeechobee are “pollutants,” and that the Lake is
“navigable.” Pet. App. 10a. And as the district court
found, and respondents did not seriously dispute, the
canals from which the water is pumped are
“meaningfully distinct” from the Lake. Jd. at 10a-
lla & n.4, 174a. The court of appeals held, however,
a permit was not required because EPA could
permissibly read “navigable waters” in 33 U.S.C.
« 3B «
1362(12) to refer collectively to all CWA
jurisdictional waters in the Nation, so that a point
source that conveys pollutants from one particular
body to another is not “adding” pollutants to
“navigable waters,” considered unitarily.
The court found the CWA ambiguous, and hence
grist for deference, almost exclusively because of the
absence of the word “any” before the phrase
“navigable waters” in the definition of “discharge of a
pollutant” in section 1362(12). See Pet. App. 28a-
30a. Given the presence of “any” before three other
nouns in the definition (“addition,” “pollutant,” and
“point source”), the Court concluded, the statute
could be read to support a reference, not to
individual water bodies, but to “navigable waters as
a collective whole.” Jd. at 29a.
The “absent-any” argument is not persuasive on
its own terms.5 To be sure, the bare phrase
5 While the “absent-any” argument was a staple of the
United States’ briefing below, e.g., U.S. Br. as Appellant
25-26; see also Miccosukee, 541 U.S. at 96 (citing it as the
textual “focus” of unitary-waters argument urged by
United States); EPA’s rulemaking preamble and the
proposed rule before it, 71 Fed. Reg. 32887, do not rely
upon, or even mention, the argument. The court of
appeals, that is, predicated its approval of the agency’s
construction almost entirely on a statutory argument not
made by the agency itself. See Chevron, 467 U.S at 844
(calling for deference to “a reasonable interpretation
made by the administrator of [the] agency”) (emphasis
added); see also, e.g., City of Kansas City v. Dept. of
Housing and Urban Dev., 923 F.2d 188, 192 (D.C. Cir.
1991) (under Chevron, “the object of our deference 1s the
result of agency decisionmaking, and not some post hoc
rationale developed as part of a litigation strategy”).
1.
“navigable waters” can be considered “singular” or
“collective,” Pet. App. 29a; see also 1 U.S.C. 1
(Dictionary Act provision that all singular terms
presumptively import the plural, and vice versa),
and “any” (and its absence) can mean “different
things depending upon the setting,” Nixon v.
Missouri Mun. League, 541 U.S. 125, 132 (2004). (As
the decision itself recognizes, Pet. App. 30a, the Act
repeatedly uses and omits the term “any” as a
modifier to “navigable waters” without holding to a
consistent pattern regarding whether individual, or
plural, bodies of water are referenced). But while
“waters” can certainly refer either to a water body or
to a collection of water bodies, the meaning of the
reference in the case of the section 1362(12)
definition “is clarified by the remainder of the
statutory scheme” because “only one of the
permissible meanings produces a substantive effect
that is compatible with the rest of the law.” United
States v. Cleveland Indians Baseball Co., 532 U.S.
200, 217-18 (2001) (quoting United Sav. Assn. of Tex.
v. Timbers of Inwood Forest Associates, Ltd., 484
U.S. 365, 371 (1988)).
Section 1362(12)’s text itself undermines the
“unitary waters” theory: The definition speaks of
pollutants going “from" a point source and “to”
navigable waters. This_ directional language
demonstrates that (as several courts of appeals have
concluded, e.g, Northern Plains Resource Council,
325 F.3d at 1162), what matters under the Act is the
“navigability” vel non of the recerving water — the
water that is located on the “outflow” side of the
point source.
This conclusion is consistent with the well
understood purpose of the reference to “navigable
waters” in the definition: to require that the
o Bay «
receiving water body be one that is subject to federal
regulatory jurisdiction under the Act (and the
Interstate Commerce Clause). “Navigable waters,” of
course, iS a jurisdictional term of art with deep
historical roots, that, throughout the statute, serves
to identify those water bodies that are properly
subject to federal regulation. See Rapanos v. United
States, 547 U.S. 715, 734 (2006) (plurality opinion)
(“On the traditional understanding, ‘navigable
waters’ included only discrete bodies of water”);
United States v. Riverside Bayview Homes, Inc., 474
U.S. 212, 131 (1985) (determining adjacent wetlands
to be sufficiently close to “rivers, streams, and other
hydrographic features” to be _ classifiable as
“navigable waters”). The Act requires that the
waters into which a point source discharges be
“navigable” (that is, that they be “waters of the
United States") in order to ensure that the various
obligations the _ statute imposes fall within
Congress’s authority under the Commerce Clause.
See id. at 133. Nothing in the statute turns on the
status of waters in which pollutants are suspended
before they enter the point source. Indeed, it is
irrelevant whether the pollutant entering the point
source comes from a _ navigable water, a
nonnavigable water, or enters the point source in an
entirely dry state.®
6 The term “addition” requires a baseline against which
any new (“additional”) pollutants are identified; as this
Court explained in Miccosukee, following the Second
Circuit in Catskill I, there is no “addition” if the point
source merely returns water to the same water body.
541 US. at 110; see also S.D. Warren, 547 U.S. at 384-85;
cf. National Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 175
(D.C. Cir. 1982). But, as the Miccosukee Court
« 2) .
To assert, as did the portion of the United States'
brief quoted by the EPA preamble, see 73 Fed Reg.
at 33701, that the definition of “navigable waters” as
“waters of the United States” operates to exempt
from regulation activities that are obviously subject
to federal jurisdiction, is to assign a surprising role
to a statutory definition that was intended to expand
regulatory jurisdiction, Riverside Bayview Homes,
474 U.S. at 133.7. Such a peculiar reliance on the
recognized, the unitary waters theory’s claim is far more
ambitious, i.e., that discharging pollutants from an
entirely different water body (perhaps from another
drainage basin, or from the “territorial seas,” 33 U.S.C.
1362(7), into a freshwater stream) is categorically not an
“addition” simply because the source waters meet the
standard for CWA jurisdiction. The term “addition” is not
so elastic as to exclude, say, the piping of oil-laden salt
water into a pure freshwater stream. See Cuomo ov.
Clearing House, 129 S Ct. 2710, 2715 (2009) (“the
presence of some uncertainty does not expand Chevron
deference to cover virtually any interpretation”); MCI
Tel. Corp. v. Amer. Tel. & Tel., 512 U.S. 218, 229 (1994)
(no deterence to interpretation that “goes beyond the
meaning that the statute can bear”). EPA did not even
have the colorable textual warrant of the court of appeals’
“absent ‘any,” relying instead upon transparently
inadequate “holistic” spinning of provisions on water
management and federalism — arguments pointedly not
relied upon by the court below, and rejected in Catskill I,
273 F.3d at 494, and JJ, 451 F.3d at 81-82. See also
Miccosukee, 541 U.S. at 108.
7 EPA made this point decades ago in rejecting pleas for
an exemption for irrigation return flows that had raised a
unitary waters argument. /n re Riverside Irrigation Dist ,
1975 WL 23864 at *4 (“the broad definition of ‘navigable
- 22 -
jurisdictional concepts to narrow the _ Act’s
application as to activities clearly within EPA's
regulatory jurisdiction would be particularly
unlikely given that the Act contains straightforward
and express exemptions for various activities, e.g., 33
U.S.C. 1342(Z), (r).
The “unitary waters” theory is bizarre for another
reason: The Clean Water Act is not concerned with
maintaining some aggregate, national quantum of
pollutants in all “waters of the United States.” See
Rapanos, 547 U.S. at 732 (plurality opinion) (“The
use of the definite article (‘the’) and the plural
number (‘waters’) shows plainly that § 1362(7) does
not refer to water in general.”); see also 33 U.S.C.
1362(6) (definition of “pollutant” includes “heat”).
While such an aggregated national limit may make
sense for certain forms of air pollution, the Clean
Water Act is intensely concerned with protecting
local water quality, local biota, and local uses. See
Rapanos, 547 U.S. at 769 (Kennedy, J., concurring in
judgment) (Act is concerned “with downstream water
quality”), The unitary waters’ theory is
fundamentally at odds with the statute.
B. Numerous Provisions of the Act Refute
the Unitary Waters Theory
1. The Definition of “Pollutant” In Miccosukee,
this Court observed that the statutory definition of
“point source,” 33 U.S.C. 1362(14) - with its
references to “pipes,” “ditches,” “tunnels,” and
“conduits,” made it “plain” that “a point source need
not be an origina! source of the pollutant.” 541 U.S.
at 105.
waters’ serves to expand the application of the Act and
the permit program, not narrow it”).
- 93 -
Here, the Act’s express definitions make plain
that the alternative argument for permit avoidance
proffered here is at least as “untenable,” id., as the
District's principal argument in Miccosukee. The
very first item listed in the statutory “pollutant”
definition is “dredged spoil,” 33 U.S.C. 1362(6).
Dredged spoil inherently comes from navigable
water bodies. See 40 C.F.R. 232.2 (defining dredged
material as “material that is excavated or dredged
from the waters of the United States”) (emphasis
added); accord 33 C.F.R. 323.2(c); see also 73 Fed.
Reg. at 33703 (EPA’s observation that dredged spoil
“by its very nature comes from a_ waterbody”)
(citations omitted).
The Act’s “pollutant” definition shows that
Congress rejected the “unitary waters” theory (or
rather Congress made choices inconsistent with the
theory, which was not devised until thirty years
after the Act became law). The “discharge” of
dredged fill requires a permit by virtue of 33 U.S.C.
1311(a), the broad prohibition against unpermitted
discharges, and is governed by the same “discharge
of a pollutant” definition in section 1362(12). If
these provisions are construed to mean that the
transfer of pollutants from one navigable water to
another is not a “discharge of a pollutant,” the result
would be to render nugatory the express definition of
“dredged fill" as a pollutant, and to render the entire
Section 404 program, 33 U.S.C. 1344, irrelevant.
In the preamble to its Water Transfers Rule,
EPA stated that Rule “will not have an effect on the
404 program” because “Congress explicitly forbade
discharges of dredged material” without a permit.
Id. at 33703. But that is exactly the point: The Act’s
express inclusion of a pollutant that inherently
comes from navigable waters shows that an
- 24 -
interpretation of section 1362(12) that excludes
pollutants from navigable waters is incompatible
with the statute. The prohibition on the “discharge of
a pollutant,” 33 U.S.C. 1311(a), and the section
13862(12) definition of that phrase govern both
discharges of dredged material (subject to Section
404) and discharges of other pollutants (subject to
Section 402). EPA cannot, therefore, ignore the
statute’s inclusion of “dredged fill." This Court has
“never” approved “giving the same [statutory] word,
in the same statutory provision, different meanings
in different factual contexts.” Santos v. United
States, 128 S. Ct. 2020, 2030(2008) (plurality
opinion). See Clark, 543 U.S. at 386 (rejecting “the
dangerous principle that judges can give the same
statutory text different meanings in different cases”);
id. at 382 (such an approach would “render every
statute a chameleon”).
2. The Act’s Focus on Protecting Specific Water
Bodies. The ‘unitary waters” concept is
irreconcilable with the mumerous_ prominent
provisions of the Act that focus on protecting the
quality of individual bodies of water, and that
predicate the stringency of permit requirements on
the characteristics of the particular receiving waters
in question. Indeed, in Miccosukee, this Court cited
the Act’s “individualized ambient water quality
standards” as among the provisions “suggest[ing] a
view contrary to the unitary waters approach.” 541
U.S. at 107 (citing 33 U.S.C. 1313(c)(2)(A)). See also
id. 1313(d) (requiring states to establish a “priority
ranking” of waters for which effluent standards are
“not stringent enough to implement any water
quality standard applicable to such waiers”).
Water quality standards are developed by the
states (or EPA, 33 U.S.C. 1313(c)(3)), and must,
y £
among other things, protect designated uses of each
water body and set forth water quality criteria for
each water body. Jd. 1313(c)(2). See also EPA,
Water Quality Standards Handbook: Second
Edition, Ch. 2 (1994, rev. 2007). States establish a
hierarchy of classifications of water bodies,
corresponding to different categories of uses and
different ecological characteristics of various
waters. Water quality criteria are “expressed as
constituent concentrations, levels, or narrative
statements, representing a quality of water that
supports a particular use.” 40 C.F.R. § 131.3(b). See
Handbook, Ch. 3.
As this Court noted in Miccosukee, the water
quality standards of the receiving water “directly
affect local NPDES permits; if standard permit
conditions fail to achieve the water quality goals for
a given water body, the state must determine the
total pollutant load that the water body can sustain
and then allocate that load among permit holders
who discharge to the water body.” 541 U.S. at 107
(citing 33 U.S.C. 1313(d)). See also 33 U.S.C.
1311(bX1\(C), 1313(d); 40 C.F.R. 131.3(f). See also
PUD No. 1, 511 U.S. at 713. For each discharge of a
pollutant, NPDES permits must include provisions
to ensure compliance with the receiving water’s
water quality standards. 33 U.S.C. 1311(b)(1\(C),
1342(a)(1-2). The Act also contains’ an
“antidegradation” provision designed to preserve
8 For example, Florida has five classifications, ranging
from potable water supplies to agricultural and industrial
uses. See, e.g., Fla. Admin. Code 62-302 400
, 2
water quality in waters meeting § applicable
standards. 33 U.S.C. 1313(d)(4)(B).
Other key provisions of the Act illustrate the
waterbody-specific approach. Proposed activities
“which may result in any discharge into the
navigable waters,” 33 U.S.C. 1341(a), require a
certification from the state attesting that the project
will not violate applicable water quality standards.
See S.D. Warren Co., 547 U.S. at 375-76; PUD No.
1,511 U.S. at 704-705. See also 33 U.S.C. 1312
(water quality-related effluent limitations).
By treating distinct “navigable waters” (whether
fresh or salt, pristine or putrid) as fungible and by
allowing unpermitted transfers of pollutants from
the dirtiest waters to the cleanest ones, the “unitary
waters” view ignores these fundamental features of
the Act, and sets the Act’s two complementary
regulatory approaches — water quality standards,
and point source controls — against each other.? The
provisions for establishing and implementing water
quality standards are not, as the court below
inexplicably classified them, mere reflections of
vague statutory “purposes,” Pet. App. 33a; they are a
set of concrete, detailed regulatory devices — the
operative core of the Act. The Miccosukee Court was
correct to note the inconsistency of the unitary
waters theory with the water quality standards and
related provisions.
9 The pipes at issue here discharge polluted water from
Class III canals into a Class I lake that is a source of
drinking water See Pet. App. 100a See also Dubois, 102
F.3d at 1277-79 (holding that NPDES permit required for
transfer from “relatively unprotected Class B waterway”
to “pristine” Class A pond used for drinking water).
27.
3. Express Statutory Objectives and Exemptions.
The court of appeals reasoned (Pet. App. 35a) that
although a “unitary waters” construction might seem
“inconsistent with the lofty goals of the Clean Water
Act,” it was “no more so” than other features of the
Act that, in the court’s view, also undercut the Act's
environmental goals. The flaws in this line of
argument are apparent: First, as we have just
noted, the conflict between respondents’ construction
and the Act are not just over “goals,” but over basic
statutory programs and mechanics — among them
the detailed provisions on water quality standards —
that are incompatible with a “unitary waters”
interpretation.
Second, the court’s reasoning — that express
statutory exemptions deemed to be in derogation of
express statutory objectives allow courts to disregard
those objectives when interpreting other substantive
provisions — would make _ explicit statutory
statements of purpose, intent, or objective irrelevant
to judicial construction, contrary to settled practice,
e.g., Babbitt v. Sweet Home Chapter of Cmtys. for a
Greater Or., 515 U.S. 687, 698, 700 (1995) (relying on
Endangered Species Act’s “broad purposes” as
expressed by Congress); Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 740-741 (1989)
(relying on Copyright Act’s “express objective”);
Department of Navy v. Egan, 484 U.S. 518, 530
(1988) (considering statute’s “express language”
and “objectives” in reviewing scope of
administrative authority) (citation omitted); EJ. Du
Pont De Nemours & Co. v. Train, 430 U.S. 112, 133
(1977) (construing EPA’s authority under CWA in
light of “the statutory goals”). Judges are no more
entitled to ignore express statutory purposes, goals
and objectives than they are to ignore any other
. 28 -
statutory provisions, and “the statutory text” is of
course “the best evidence” of those, West Va. Univ.
Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991).
The conclusion the court drew from its discussion
of the Act’s loopholes was not sound. Whether or not
it is true that those exemptions have weakened the
Act, Congress’s decision to impose various express
limitations demonstrates that it knew how to create
exemptions from the generally comprehensive
nature of the Act’s permitting provisions when it so
intended. Indeed, the irrigation return flows
exemption cited by the court, see 33 U.S.C. 1362(14);
see also id. 1342(/1), severely undercuts its
conclusion. That exemption was enacted by Congress
in response to a judicial ruling that the Act did not
exempt return flows. See S. REP. No. 95-370 at 31
(1977) (explaining that “[plermit requirements under
section 402 of the act have been construed to apply
to discharges of return flows from irrigated
agriculture,” and that amendment was intended to
exempt such flows); Natural Resources Defense
Council, Inc. v. Costle, 568 F.2d 1369, 1376-1377
(D.C. Cir. 1977) (striking down administrative
exemption for irrigation return flows as contrary to
“clear intent” of Act). Furthermore, irrigation return
flows were the subject of the 1975 EPA General
Counsel Memorandum expressly rejecting a unitary
waters argument, as was noted in Miccosukee, 541
U.S. at 107 (discussing Jn re Riverside Irrigation
District and Brief of Amici Curiae Former
Administrator Caro] M. Browner, et al., No. 02-626).
Nor did Congress’s decision to “leave out”
nonpoint sources (Pet. App. 35a) from the NPDES
program justify overlooking the “inconsistency”
between the unitary waters construction and the
statutory goals. The Act treats nonpoint sources
- 29 -
differently for a variety of practical, technological,
and institutional reasons, see Pet. App. 158a, that do
not, as the court of appeals inferred, in any way
impugn the seriousness of Congress's intent to meet
statutory objectives, see generally William H
Rodgers, dJr., ENVIRONMENTAL LAW § 4.5 (2d
Ed.1994) — and the Act did not leave nonpoint
sources unaddressed, e.g., 33 U.S.C. 1288, 1313(d),
1329. The shortcomings of the CWA’s regime for
nonpoint sources (attributable in part to chronic
governmental delays in implementing key nonpoint
provisions, e.g., Alaska Ctr for the Environment v
Reilly, 762 F. Supp. 1422, 1426-27 (W.D. Wash
1991)), is no authority at al) for creating extratextual
exemptions to the point source regime.
Il. THIS CASE PRESENTS THE PROPER
OCCASION FOR THE COURT TO ADDRESS
THE IMPORTANT QUESTION LEFT OPEN
IN MICCOSUKEE
The issues presented here are of great national!
importance. They go to the scope of one of our most
important and broadly applicable federal statutes.
At issue here is the basic operation of CWA
provisions determining whether given activities
trigger the key prohibition in Section 301(a), 33
U.S.C. 1311(a), and therefore require permits.
In Miccosukee, this Court recognized — the
importance of these issues, first in granting review
on a closely related issue ~ an alternative argument
for why, supposedly, point sources that are not
themselves the generator of pollutants, but that
transfer waters that contain pollutants, were
claimed to be exempt from NPDES permitting. In
discussing the unitary waters theory that emerged
oa.
as an alternative argument for the District and its
supporters, this Court noted the high stakes. See
also 541 U.S. at 108-109 (discussing claims by
petitioners’ amici of “significant practical
consequences” if NPDES permit were required, but
also observing that “it may be that such permitting
authority is necessary to protect water quality”).
The large number of amicus briefs submitted in that
case, on both sides, was a testament to the
importance of the issues presented.
Other courts that have rejected the “unitary
waters” thesis have also emphasized its broad
significance for CWA administration and _ its
consequences for water quality. See, e.g., Catskills
IT, 451 F.3d at 81 (unitary waters 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”) (citing
Catskills I; Dubois, 102 F.3d at 1297.19 Indeed, the
10 EPA hastened to point out, 73 Fed Reg at 33700 n.4,
that the decisions rejecting the “unitary waters” theory
preceded the finalization of the Water Transfers Rule.
While National Cable & Telecommunications Ass’n v
Brand X Internet Services, 545 U.S 967, 982-983 (2005),
makes clear that judicial decisions do not confine an
agency unless they are based upon a_ judicial
determination of unambiguous command. Certainly EPA
at least tested the limits here: The district court, after
all, had held that “the statute is unambiguous” and that
no “agency interpretation” could “alter the unambiguous
congressional intent.” Pet. App. 141. The First and
Second Circuit decisions, while not under Chevron, had
been quite firm in declaring EPA’s view inconsistent with
the Act. See Dubors, 102 F.3d at 1296 (“There is no basis
3 oe
Eleventh Circuit panel in this case characterized the
implications of the interpretation it approved as
“absurd” and “frightening.” Pet. App. 32a, 33a. And
as the court also acknowledged, the interpretation
has been forcefully rejected by other courts of
appeals, and was subjected to strong criticism by
this Court in Miccosukee. The decision below, and
the EPA construction it approves, are contrary to a
large body of authority, which explains. the
incompatibility of the construction with the statute.
The facts set forth in the district court’s opinion
provide a measure of the considerable practical
stakes: the pollutants emanating from the three
huge pumping stations at issue are a major factor in
the degradation of Lake Okeechobee and pose
serious public health hazards. See Pet. App. 45a-46a;
see also Miccosukee, 541 U.S. at 101 (noting that
“It]he phosphorous-related impacts of the Project are
well known and have received a great deal of
attention from state and federal authorities for more
than 20 years”).
This case presents the proper vehicle for the
Court to take up the “unitary waters” interpretation
that was criticized, but ultimately left for the lower
courts, in Miccosukee. Here the issues of whether
the receiving water and the source waters are
“meaningfully distinct” has been clearly resolved,
meaning that the “unitary waters” issue — the final
of the three alternative bases for avoiding permitting
in law or fact for the district court's ‘singular entity’
theory.”); Catskill I, 273 F.3d at 494 (relying on “plain
meaning of [Act’s] text”); Catskill IJ], 451 F 3d at 84
(arguments resisting permit requirement “simply
overlook” Act’s “plain language”).
- 32-
that were urged in Miccosukee — is_ squarely
presented and dispositive. Unlike Miccosukee,
where unresolved factual and legal issues ultimately
precluded a definitive disposition from this Court,
here there has been a two-month trial, yielding
extensive and meticulous factual findings that allow
the Court to consider the pure question of law
presented in a well-defined factual context.
As the majority saw things in Miccosukee, the
“unitary waters” theory had been _ interposed
belatedly only in an amicus brief and not ruled on
below — a characterization that prompted a dissent.
See 541 U.S. at 112 (Scalia, J., concurring in part
and dissenting in part) (expressing view that the
Eleventh Circuit “already rejected” the theory and
that remand was improper) (citing 280 F.3d at 1368,
n. 5); Pet. App. 13a (panel in this case, also reading
that Eleventh Circuit’s opinion in the S-9 case to
have “reject[ed]” the unitary waters theory). Here,
there is no question the issue was fully aired in the
lower courts. As noted, this case functioned as the
stand-in for the remanded Miccosukkee proceedings,
which was stayed pending decision on essentially
identical issues here.
Nor does the pendency of various suits seeking
judicial review of the Water Transfers Rule counsel
against certiorari here. The petitions for review are
all consolidated in the Eleventh Circuit itself, which
stayed them pending resolution of this appeal.!!
11 EPA’s preambie asserts (73 Fed. Reg at 33697)
that the exclusive forum for review of the Water
Transfers Rule is a court of appeals under 33 U.SC
1369(b), although the Rule appears not to fall within the
enumerated categories of secretarial action reviewable
under that subsection — and the Ninth Circuit has held
- 33 «
Indeed, the advent of EPA’s Water Transfers
Rule only militates in favor of review. The “unitary
waters” theory now comes clad in the attire of a final
EPA regulation, but the underlying construction of
the statute suffers from obvious and fatal flaws,
some of which this Court already identified in
Miccosukee, and more of which were addressed by
other courts. An obvious, grievous and consequential
misreading of a major federal statute has now, in the
face of strong condemnation from all courts, received
the imprimatur of a court of appeals and of the
agency principally charged with enforcing the Act
and of a court. Despite please for deference and new
perspectives afforded by “lens of Chevron,” the
unitary waters theory has not stopped being
manifestly and hopelessly inconsistent with the
statute. The Court should call the “third strike” (cf.
Pet. App. 13a) here and now.
that original circuit court jurisdiction does not lie in
analogous circumstances. See Northwest Environmental
Advocates v. EPA, 537 F.3d 1006, 1016-18 (9t» Cir. 2008)
And of course, if the EPA’s position on jurisdiction is
correct — and no court has yet ruled on the proper forum
for the freestanding challenges to the Rule — then the
review proceedings would be held tn a court that has
already held that EPA's regulation is consistent with the
Act
- 34 -
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
David G. Guest Sean H. Donahue
Monica K. Reimer Counsel of Record
Earthjustice Donahue & Goldberg, LLP
P.O. Box 1329 2000 L St., NW, Ste 808
Tallahassee, FL32302 Washington, DC 20036
Tel: (850) 681-0031 Tel: (202) 277-7085
John E. Childe David. T. Guldberg
150 Indian Mound Trail Donahue & Goldberg, LLP
Tavernier, F 1. 33070 99 Hudson Street, 8 Floor
Tel: (305) 712-0172 New York, NY 10013
Tel: (212) 334-8813
David Reiner
Reiner & Reiner, PA
9100 S. Dadeland Blvd.
Suite 901
Miami, FL 33156
(305) 670-8282
APPENDIX
la
APPENDIX A— OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT, DATED AND FILED JUNE 4, 2009
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 07-13829
D.C. Docket No. 02-80309-CV-CMA
FRIENDS OF THE EVERGLADES, FLORIDA
WILDLIFE FEDERATION,
Plaintiffs-
Counter-Defendants-
Appellees
Cross-Appellants,
FISHERMEN AGAINST DESTRUCTION
OF THE ENVIRONMENT,
Plaintiff-
Counter-Defendant
Appellee,
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
Intervenor-Plaintiff-
Counter-Defendant-
Appellee
Cross-Appellant,
Lad
APPENDIX A
versus
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT,
Defendant
Counter-Claimant-
Cross-Appellee,
CAROL WEHLE, Executive Director,
Defendant
Appellant,
UNITED STATES OF AMERICA, U.S. SUGAR
CORPORATION,
Intervenor-Defendants
Appellants.
Appeal from the United States District Court
for the Southern District of Florida
(June 4, 2009)
Before DUBINA, Chief Judge, CARNES, Circuit
Judge, and GOLDBERG,* Judge.
Honorable Richard W. Goldberg , Judge, United State
Court of International ‘Trade, sitting by designation
3a
APPENDIX A
CARNES, Circuit Judge:
This appeal turns on whether the transfer of a
pollutant from one navigable body of water to another
is a “discharge of a pollutant” within the meaning of the
Clean Water Act, 33 U.S.C. § 1362(12). If it is, a National
Pollution Discharge Elimination System permit is
required. 33 U.S.C. §§ 1311(a); 1342(a). The Act defines
“discharge of a pollutant,” but the meaning of that
definition is itself disputed. During the course of this
litigation, the Environmental Protection Agency
adopted a regulation addressing this specific matter.
The issue we face, after we dispose of a preliminary
Eleventh Amendment question, is whether we owe that
EPA regulation deference under Chevron U.S.A., Inc.
v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104
S. Ct. 2778, 81 L. Ed. 2d 694 (1984).
I.
The unique geography of South Florida is once again
before us. See Miccosukee Tribe of Indians of Fla. v.
United States, 566 F.3d 1257, 2009 U.S. App. LEXIS
9715, 2009 WL 1199871, at *1 (11th Cir. May 5, 2009).
Lake Okeechobee is part of that geography. Historically,
the lake had an ill-defined southern shoreline because
during rainy seasons it overflowed, spilling a wide,
shallow sheet of water overland to the Florida Bay. “But
progress came and took its toll, and in the name of flood
4a
APPENDIX A
control, they made their plans and they drained the
land.”!
In the 1980s the Herbert Hoover Dike was built
along the southern shore of Lake Okeechobee. It was
intended to control flooding but failed during the
hurricanes of 1947 and 1948. Congress then authorized
the Central and Southern Florida Flood Project; as part
of it the Army Corps of Engineers expanded the Hoover
Dike and built pump stations including S-2, S-3, and S-
4. Under the modern version of that project, nearly all
water flow in South Florida is controlled by a complex
system of gates, dikes, canals, and pump stations.
The area south of Lake Okeechobee’s shoreline was
designated the Everglades Agricultural Area. The Corps
dug canals there to collect rainwater and runoff from
the sugar fields and the surrounding industrial and
residential areas.* Not surprisingly, those canals contain
a loathsome concoction of chemical contaminants
including nitrogen, phosphorous, and un-ionized
ammonia. The water in the canals is full of suspended
and dissolved solids and has a low oxygen content.
Those polluted canals connect to Lake Okeechobee,
which is now virtually surrounded by the Hoover Dike.
1. John Anderson, “Seminole Wind,” on Seminole Wind
(BMG Records 1992).
2. The canals are commonly called the EAA canals, and we
will refer to them as the agricultural canals, although they also
contain industrial and residential runoff.
APPENDIX A
The S-2, S-3, and S-4 pump stations are built into the
dike and pump water from the lower levels in the canals
outside the dike into the higher lake water. They do that
by spewing water through the dike and into “rim canals”
open to the lake. This process moves the water
containing Agricultural Area contaminants uphill into
Lake Okeechobee, a distance of some sixty feet. The
pumps do not add anything to the canal water; they
simply move it through pipes. At full capacity, the pumps
within the S-2, S-3, and S-4 stations can each move 900
cubic feet of water per second—more than 400,000
gallons per minute. The South Florida Water
Management District operates the pumping stations.
Two organizations, the Friends of the Everglades
and the Fishermen Against the Destruction of the
Environment, filed this lawsuit against the Water District
in 2002. The plaintiffs (whom we will call collectively the
Friends of the Everglades) sought an injunction to force
the Water District to get a permit under the Clean Water
Act’s National Pollution Discharge Elimination System
(NPDES) program before pumping the polluted canal
water into the lake. The court allowed a number of
interveners to enter the lawsuit. Asserting that the
pollution of Lake Okeechobee threatens its way of life,
the Miecosukee Tribe joined on the plaintiffs’ side. The
United States, “on behalf of” the EPA and the Corps,
joined on the defense side, as did the U.S. Sugar
Corporation. [n an amended complaint, the plaintiffs
added the Water District’s executive director as a
defendant.
6a
APPENDIX A
In early 2006 there was a two-month bench trial in
the United States District Court for the Southern
District of Florida. See Miccosukee Tribe v. S. Fla. Water
Mgmt. Dist., 559 F.3d 1191, 1192-94 (11th Cir. 2009)
(describing that trial). After the trial, the district court
decided that the Water District was immune under the
Eleventh Amendment and dismissed it from the case,
but the court kept the executive director in the lawsuit
under the Ex parte Young doctrine. See Kx parte Young,
209 U.S. 128, 28 S. Ct. 441, 52 L. Ed. 714 (1908). It
concluded that operating the S-2, S-8, and S-4 pump
stations without an NPDES permit violated the Clean
Water Act. In June 2007 the court granted an injunction
against the executive director of the Water District that
required her to “apply ... for a NPDES permit
forthwith.” All of the defendants except the Water
District appealed the part of the final judgment that
enjoined the executive director, while the plaintiffs
cross-appealed the part dismissing the Water District
under the Eleventh Amendment.
We begin with the cross-appeal, which contests the
dismissal of the Water District on Eleventh Amendment
immunity grounds. The parties disagree mightily about
this issue and had gotten so wrapped up in the
arguments about it that none of them had stepped back
to ask why it matters. We asked that question of the
attorneys at oral argument, and once they got past the
deer-in-the-headlights moment they could offer no good
reason why we, or they, should care if the Water District
APPENDIX A
is In or out of this lawsuit. We believe that it does not
matter at all.
No party disputes that the executive director of the
Water District has been properly sued under the
Ex parte Young doctrine. That doctrine provides an
exception to Eleventh Amendment immunity for lawsuits
against state officials as long as the plaintiffs seek only
prospective injunctive relief to stop ongoing violations
of federal law. See Fla. Ass’n of Rehab. Facilities, Ince.
v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208,
1219 (11th Cir. 2000). And that is all the plaintiffs in this
case seek. That relief can be obtained as readily by
enjoining the real-person executive director as it could
be by enjoining both her and the Water District.
See Fed. R. Civ. P. 25 (providing for automatic
substitution of successors upon the death or end of term
of the officer named as the original party). If anything,
injunctions against real people are more easily enforced
than those against corporate or government entitics
because real people can be put in jail.
At one time it appeared that the Eleventh
Amendment issue might matter because the executive
director had initially argued that some of the relief
requested by the Friends of the Everglades was beyond
the proper scope of the Ax parte Young doctrine. If true,
that part of the requested relief would have been
unavailable unless the Water District itself could be sued.
But Jonathan Glogau, the attorney representing the
Water District, conceded at oral argument that if the
plaintiffs are entitled to the relief they seck, all of that
APPENDIX A
relief can be obtained by enjoining the executive
director.’ We are entitled to rely on that concession
because James Nutt, the attorney representing the
executive director, assured us at the beginning of the
arguments that Glogau would speak on the Eleventh
Amendment issue for the executive director as well a
for the Water District
Two-and-a-half weeks after oral aryument, however,
we received a supplemental letter from attorney Nutt
in which, referring to himself in the third person, he
tated: “The Executive Director’s counsel did not have
an Opportunity to address the Court’s question, posed
at the very end, whether the remedies available against
the :xecutive Director through the fiction of Young ar
the same as the remedies available as [sie] against the
District were it not immune. They are not.” The belated
letter is not helpful. As a general matter it is conceivable
that remedies available ayainst the executive director
might not match those available against the Wate)
District, if it is not protected by the Eleventh
Amendment. But we are not dealing with a veneral
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9a
APPENDIX A
matter. We are dealing with this particular case. The
only remedies sought are prospective injunctive relief
of the sort which, if granted, would be obtained through
judicial process applied against the executive director,
who is responsible for the operation of the Water District.
See Fla. Stat. § 373.083.
The plaintiffs have the greatest interest in the
availability of remedies. They are satisfied that, as the
attorney for the Water District assured us at oral
argument, “the remedies sought by Plaintiffs can be
obtained against the Executive Director of the District.”
We are, too. To enjoin the executive director of the
Water District is for all practical purposes to enjoin the
Water District. And equity is practical.
An issue is moot “when it no longer presents a live
controversy with respect to which the court can give
meaningful relief.” Fla. Ass’n of Rehab. Facilities, Inc.,
225 E3d at 1217; see also Powell v. McCormack, 395 U.S.
486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969).
To decide a moot issue is to issue an advisory opinion,
one unnecessary to the judicial business at hand and
outside the authority of Article II] courts. Fla. Ass‘n of
Rehab. Facilities, 225 F.3d at 1216-17; see also B&B
Chem. Co. v. United States EPA, 806 F.2d 987, 989 (11th
Cir. 1986) (“A justiciable controversy is thus
distinguished from a difference or dispute of a
hypothetical or abstract character; from one that is
academic or moot.”). To decide questions that do not
matter to the disposition of a case is to separate Lady
Justice’s scales from her sword. That we will not do.
LQa
APPENDIX A
Cf. George E. Allen, The Lawas a Way of Life, 27 (1969)
(“The seales of justice without the sword is the
impotence of law.”).
III.
Having disposed of the Eleventh Amendment issue,
we turn now to whether the S-2, 8-3, and S-4 pumps
require NPDES permits. The Clean Water Act bans the
“discharge of any pollutant” without a permit. 33 U.S.C.
§§ 1311, 1342(a)(1). “Discharge” is defined as “any
addition of any pollutant to navigable waters from any
point source.” 33 U.S.C. § 1862(12).
It is undisputed that the agricultural and industria!
runoff in the canals contains “pollutants,” that Lake
Okeechobee and the canals are “navigable waters,” and
that these three pump stations are “point sources” even
though they add nothing to the water as they move it
along. See S. Fla. Water Mgmt. Dist. v. Miccosukee
Tribe, 541 U.S. 95, 102, 105, 124 S. Ct. 1537, 1542-43,
158 L. Ed. 2d 264 (2004). The question is whether moving
an existing pollutant from one navigable water body to
another is an “addition ... to navigable waters” of that
pollutant.’ The district court decided that it is, but that
4. The permitting requirement does not apply unless the
bodies of water are meaningfully distinet. Meccosukee, 541 U.S.
at 112, 1248. Ct. at 1547. The district court concluded that Lake
Okeechobee and the agrieultural canals are meaningfully
distinet based on ten fact findings that it detailed at
considerable length. Our review of those findings is limited to
(Cont'd)
lla
APPENDIX A
decision came before the EPA adopted its regulation.
Our review is de novo. United States v. DBB, Inc., 180
F3d 1277, 1281 (11th Cir. 1999).
A.
The Water District’s central argument is based on
the “unitary waters” theory. That theory is derived from
the dictionary definition of the word “addition,” which
is not defined in the Act. See generally S.D. Warren Co
vu. Maine &d. of Envtl. Prot., 547 U.S. 370, 376, 126 S.
Ct. 1843, 1847, 164 L. Ed. 2d 625 (2006) (stating that an
indefined statutory term is to be read “in accordance
with its ordinary or natural meaning.”) (quotation
omitted). The dictionary definition of “addition” is “to
join, annex, or unite” so as to increase the overall
number or amount of something. Webster's Third New
lnuternational Dictionary 24 (1998).
looking for clear error, see Anderso? City of bessemer City,
170 U.S. 564, 574, 1058. Ct. 1504, 1512, 84 L. Ed. 2d 518 (1985),
and the defendants do not even challenge them as clearly
erroneous. Given the fact findings the district court made, we
are satisfied that the agricultural canals and Lake Okeechobee
are meaningfully distinct water bodies
The EPA wrote an opinion letter that attempted to build a
case for the waters not being meaningfully distinct. That letter
is not entitled to Chevron deference. See Christensen vu Harris
County, 529 U.S. 576, 587, 120 S. Ct. 1655, 146 L. Ed. 2d 621
(2000) (“Interpretations such as those in opinion letters . .. do
not warrant Chevron-style deference.” ) Applying Skidmore i
Swit & Co., 323 US 134, 140, 658. Ct. 161, 89 L. Ed. 124 (1944),
we find the EPA’s informal view of the term “meaningfully
listincl” unpersuasively narrow
l2a
APPENDIX A
The unitary waters theory holds that it is not an
“addition ... to navigable waters” to move existing
Pollutants from one navigable water to another. An
addition occurs, under this theory, only when pollutants
first enter navigable waters from a point source, not
when they are moved between navigable waters. The
metaphor the Supreme Court has adopted to explain
the unitary waters theory is: “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.” Miccosukee, 541 U.S. at 110, 124 S. Ct. at 1545
46 (alteration and quotation marks omitted). Under that
metaphor the navigable waters of the United States are
not a multitude of different pots, but one pot. Ladling
pollution from one navigable water to another does not
add anything to the pot. So no NPDES permit is
required to do that.
The unitary waters theory has a low batting average
[n fact, it has struck out in every court of appeals where
it has come up to the plate. See, e.g., Catskill Mountains
Ch. of Trout Uniti ited, Inc. v. City of New York
(Catskills [), 273 F.3d 481, 491 (2d Cir. 2001) (“| T he
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.”); Catskill Mountains Ch. of Trout
Unlimited, Ine. v. City of New York (Catskills 11), 451
F.3d 77, 88 (2d Cir. 2006) (coneluding that “[t]he City
also reasserts the unitary-water theory of navigable
waters. Our rejection of this theory in Catskills J,
however, is... not undermined” by Miccosukee, 541
l3a
APPENDIX A
U.S. 95, 124 8S. Ct. 1537, 158 L. Ed. 2d 264); Dague v.
City of Burlington, 935 F.2d 13438, 1354-55 (2d Cir. 1991)
(rejecting the idea that pollutants are ‘added’ only on
first entry into any navigable water); Dubois v. U.S. Dept
of Agric., 102 F.3d 1278, 1296 (1st Cir. 1996) (“| There is
no basis in law or fact for the district court’s ‘singular
entity’ [unitary waters] theory.”); N. Plains Res.
Council v. Fidelity Exploration and Dev., 325 F.3d 1155,
1163 (9th Cir. 2003). Even the Supreme Court has called
a strike or two on the theory, stating in Miccosukee that
“several NPDES provisions might be read to suggest a
view contrary to the unitary waters approach.” 541 U.S.
at 107, 124 S. Ct. at 1544. The Court has not, however,
called the theory out yet.
We have no controlling circuit precedent on the
unitary waters theory. We did at one time decide to
reject it, but that decision was vacated. See Miccosukee
Tribe v. S. Fla. Water Mgmt. Dist., 280 F.3d 13864, 1368
(lith Cir. 2002) (concluding that “addition... to
navigable waters” includes pumping polluted water from
one navigable water body into another), vacated,
Miccosukee, 541 U.S. at 112, 1248. Ct. at 1547. Parts of
decisions that are vacated and have not been reinstated
“have no legal effect whatever. They are void.” United
States v. Sigma Int'l, Inc., 300 F.3d 1278, 1280 (11th Cir.
2002) (en bane). We are free to give statements in a
vacated opinion persuasive value if we think they
deserve it. See Tallahassee NAACP v. Leon County, 827
2d 1436, 1440 (11th Cir. 1987).
14a
APPENDIX A
In Miccosukee, 280 F.3d at 13867, we addressed
whether the law required an NPDES permit before
polluted water could be moved through the 8-9 pump
from some particular Everglades canals into a water
conservation area. In a footnote, we declined to adopt
the unitary waters theory. Jd. at 1368 n.5 (“We reject
the Water District’s argument that no addition of
pollutants can occur unless pollutants are added from
the outside world insofar as the Water District contends
the outside world cannot include another body of
navigable waters.”). Instead we said that “the receiving
body of water is the relevant body of navigable water”
and that “the relevant inquiry is whether—but for the
point souree—the pollutants would have been added to
the receiving body of water.” /d. at 1368. For that
proposition we cited Catskill /,a Second Circuit decision
rejecting the unitary waters theory. Because the polluted
canal water would not have flowed into the conservation
area but for S-9’s pumping, we concluded that S-9 was
adding pollutants to a meaningfully distinct water body,
so an NPDES permit was required. /d. at 1868-69. The
Supreme Court vacated our decision and remanded for
further factfindings, however, because the existing
record did not convince it that the canals and the water
conservation area were meaningfully distinet water
bodies. Miccosukee, 541 U.S. at 112, 124 S. Ct. at 1547.
The Court also stated that the Water District’s unitary
waters argument was to be available on remand. /d., at
112, 1248. Ct. at 1547.
In sum, all of the existing precedent and the
statements in our own vacated decision are against the
lSa
APPENDIX A
unitary waters theory. That precedent and those
statements take the view that the transfer of pollutants
from one meaningfully distinct navigable body of water
to another is an “addition ... to navigable waters” for
Clean Water Act permitting purposes. If nothing had
changed, we might make it unanimous. But there has
been a change. An important one. Under its regulatory
authority, the EPA has recently issued a regulation
adopting a final rule specifically addressing this very
question. Because that regulation was not available at
the time of the earlier decisions, they are not precedent
against it. We are the first court to address the “addition
... to navigable waters” issue in light of the regulation—
to decide whether the regulation is due Chevron
deference.
B.
The EPA’s new regulation, which became final on
9)
June 13, 2008, explains that it was adopted to:
clarify that water transfers are not subject to
regulation under the National Pollution
Discharge Elimination System (NPDES)
permitting program. This rule defines water
transfers as an activity that conveys or
connects waters of the United States without
subjecting the transferred water to
intervening industrial, municipal, or
commercial use.
] 64
APPENDIX A
NPDES Water Transfers Rule, 73 Fed. neg. 33,697-708
(June 13, 2008) (codified at 40 C.F.R. § 122.3(1)).
Everyone agrees that the EPA’s regulation is entitled
to Chevron deference if it is a reasonable construction
of an ambiguous statute. Under Smiley v. Citibank, 517
U.S. 735, 740-41, 116 S. Ct. 1730, 1734, 185 L. Ed. 2d 25
(1996), and United States v. Morton, 467 U.S. 822, 835
n.21, 104 8S. Ct. 2769, 2776 n.21, 81 L. Ed. 2d 680 (1984),
it does not matter that the regulation was proposed and
issued well after the beginning of this lawsuit. Neither
does it matter if it was done in response to this or rege
law suits. See Barnhart v. Walton, 535 U.S. 212, 221, 12
S. Ct. 1265, 1271, 152 L. Ed. 2d 330 (2002). Nor aene tk it
matter whether the new regulation is a dramatic shift
in EPA policy. Natl. Cable & Telecomm. Assoc. v. Brand
X Internet Servs., 545 U.S. 967, 981, 125 S. Ct. 2688,
2699, 162 L. Ed. 2d 820 (2005) (“Agency inconsistency is
not a basis for declining to analyze the agency’s
interpretation under the Chevron framework.”)
All that matters is whether the regulation is a
reasonable construction of an ambiguous statute.
Chevron, 467 U.S. at 842-48, 104 S. Ct. at 2781 (If the
intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to
the unambiguously nee intent of Congress.”);
id. at 844, 104 8. Ct. at 2782 (“|AJ court may not
substitute its own aaeieion of a statutory provision
for a reasonable interpretation made by the
administrator of an agency.”); Sierra Club v. Johnson,
541 F.3d 1257, 1265 n.3 (11th Cir. 2008) (“| A] court must
give effect to an agency’s reasonable interpretation of
17a
APPENDIX A
an ambiguous statute.”). In other words, there must be
two or more reasonable ways to interpret the statute,
and the regulation must adopt one of those ways. Those
two requirements are obviously intertwined. See
Matthew C. Stephenson & Adrian Vermeule, Chevron
Has Only One Step, 95 Va. L. Rev. 597 (2009); Orin S.
Kerr, Shedding Light on Chevron: An Empirical Study
of the Chevron Doctrine in the U.S. Courts of Appeals,
15 Yale J. on Reg. 1, 30 (1998) (examining 200 court of
appeals cases applying Chevron and finding that in 28
percent of them the inquiry was collapsed into the single
question of whether the interpretation was reasonable).
The Friends of the Everglades’ position is that the
ky PA’s regulation does not warrant Chevron deference
because the meaning of the “addition... to navigable
waters” language is clear and its lack of ambiguity
forecloses the unitary waters theory. Cf, e.g., Ala. Power
Co. v. U.S. Dep't of Energy, 307 F.3d 1300, 1312 (11th
Cir. 2002) (finding that, because “using traditional tools
of statutory construction,” the Nuclear Waste Policy Act
provision in question was clear, no level of deference
applied to the agency’s contrary interpretation); Brand
X, 545 U.S. at 982-838, 125 S. Ct. at 2700 (“Only a judicial
precedent holding that the statute unambiguously
forecloses the agency’s interpretation, and therefore
contains no gap for the agency to fill, displaces a
conflicting agency construction.”). The defendants have
two alternative positions. Their bolder position is that
the EPA’s regulation mirrors the unambiguous meaning
of the statute. Their more modest one is that even if
the statute is ambiguous, the regulation is one
l Sa
APPENDIX A
reasonable interpretation of it. The true conflict, [*1220]
and most of our discussion, centers on whether there is
ambiguity.
C.
Both sides pitch several decisions to us. The Water
District, arguing for ambiguity, throws us National
Wildlife Federation v. Consumers Power Co., 862 F.2d
580 (6th Cir. 1988), and National Wildlife Federation
v. Gorsuch, 693 F.2d 156, 224 U.S. App. D.C. 41 (D.C.
Cir. 1982). In those cases the courts coneluded that the
“discharge of a pollutant” language in the Clean Water
Act was ambiguous and deferred to the EPA’s view that
dams did not add pollutants, which meant that no
NPDES permits were necessary. 862 F.2d at 584-85; 693
I\2d at 183. The issues those cases addressed, however,
were different from the one before us.
In Gorsuch the National Wildlife Federation sued
the EPA for failing to require NPDES permits for dams.
693 F-2d at 161. The man-made dams and their reservoirs
caused changes in the water’s temperature, nutrient
loads, and oxygen content, and the affected water was
then released through the dams into the rivers below.
Id. The EPA gave two reasons why no permit was
required: (1) the changes caused by the dams were not
pollutants; and (2) even if they were, releasing water
through a dam did not add those pollutants to the water,
because the water would have reached the downstream
river anyway, and its passage through the dam did not
change it. /d. at 165. The D.C. Circuit concluded that
19a
APPENDIX A
neither the language of the statute nor its legislative
history conclusively supported either side’s position
about what “discharge of a pollutant” meant under the
circumstances of that case, so the court deferred to the
EPA’s position.’ /d. at 175, 183.
In doing so, the Gorsuch court accepted the EPA's
position that colder water and changes in its oxygen and
dissolved nutrient content were not pollutants at all.
Jd. at 174. That rendered irrelevant whether the
changed water was being ‘added’ to navigable water by
its movement through a dam. In any event, the water
was moving from a river above a dam to the same river
below it. Because the facts of the case did not present
the issue of whether the transfer of pollutants from one
body of water to a different body of water adds pollutants
to the navigable waters, the Gorsuch court could not
have decided that issue. Watts v. BellSouth Telcommes.,
Inc.., 316 F.3d 1208, 1207 (11th Cir. 2008) (“Whatever
their opinions say, judicial decisions cannot make law
beyond the facts of the cases in which those decisions
are announced.”); United States v. Aguillard, 217 F.3d
1319, 1321 (11th Cir. 2000) (same). It follows that the
court also could not have decided whether the statutory
language was ambiguous regarding that issue, which is
the one before us. Language can be ambiguous in some
respects but not in others.
5. Gorsuch predates Chevron but apphed a substantially
similar level of deference. See 693 F.2d at 181 (“We hold merely
that EPA's interpretation is reasonable, not inconsistent with
congressional intent, and entitled to great deference; therefore,
it must be upheld.”),
20a
APPENDIX A
The other decision the Water District pitches us is
Consumers Power, 862 F.2d 580. In that case a power
plant sucked water containing some unlucky fish out of
Lake Michigan, pumped the water uphill, and then
directed it and the fish back downhill through turbines
that generated electricity. 862 F.2d at 581. In the process
the turbines pureed some of the fish and spewed the
fish puree back into Lake Michigan. /d. at 581-82. The
plant was a “dam” for permitting purposes because part
of the generating process involved impounding water.
Id. at 589-90. Deferring to the EPA’s position, the Sixth
Circuit concluded that “any entrained fish released with
the... facility’s turbine generating water originate in
Lake Michigan and do not enter the Lake from the
outside world.” /d. at 585. Fish, living or dead, are
biological material under the Clean Water Act, and the
fish in Consumers Power had always existed in the same
lake to which the power plant returned them. See id.
Accordingly, the court did not have before it, and so
could not have decided, whether moving pollutant:
between different bodies of navigable water constitutes
an addition of pollutants to navigable waters. See Watts,
316 F.3d at 1207.
Gorsuch and Consumers Power involved water that
wound up where it would have gone anyway. That is not
this ease. Water from the agricultural canals would not
flow upstream into Lake Okeechobee if the S-2, S-3, and
S-4 pumps did not move it there. Here, unlike in Gorsuch
and Consumers Power, pollutants are being moved
APPENDIX A
between meaningtully distinct water bod Phe
that those decisions found the statute ambiguous a
apphed to different factual situations is of little help 1
the Water District. See Barnhart ». Siqmon Coal
34 U.S. 438, 450, 122 S. Ct. 941, 950, 151 L. Ed. 2d 908
(2002) (explaining that the inquiry as to whether a
tatute 1s ambiguous Is undertaken “with regard to th
particular di: pute in the case’ } l/nited States v. Santo
US , 1288. Ct. 2020, 2024, 170 L. Ed. 2d 912 (2008
noting that “context gives meaning” with regard to the
CiIrcumMmsLANCC inder which a statute imi
( ntext mean i lot
The Friend f the Iiverglade irvuing apall
ambiguity, pitch us other decisior Oe, €.9., Cats
[, 273 F.3d at 481; Catskills 1/7, 451 F.3d at 77
Viccosiukee, 280 k3d at 1367. vacated, 541 U.S. at 112
124 S. Ct. at 1547; Dubois, 102 I.3d at 12738. They argu
that all of the courts of appeals that have addressed thi
ue have found that “any addition of any pollutant t
?
navigable waters’ includes moving polluted wate:
between meaningfully distinct water bodie Cha
fatement depend however, on what one means by “thi
issue.” Kach decision the lriends of the Everglades re!
on addressed which internretation of the tatutor
lanyuaye was most plausible or preferable. Becau
they all came out before the EPA's new regulation went
into effeet., none of those decisions addressed the | lf
before us, which is whether the I. PA’s interpretation o
tric LaLuLlol mngvuagve is reasonanle, eve | wen
APPENDIX A
prefer another one. Deciding how best to construs
tatutory languaye is not the same thing as decidi
whether a particular construction is within the ballpar}
of reasonablene: See Brand X. 545 | at YO, TZ)
C(t. at 2699 (Chevron requires a fe deral court to accept
the apeney's construction of the statute, even if the
agency's reading differs from what the court believe
the best statutory interpretation.”); Shot (ity
Plantation, 344 F.3d 116), 117% (lith Cir. Z008
(obse. Ving that in the absence of un administrative
nterpretation i court must mp f 1)
onstruction on the tute
till, the hmenas of the lveryvlade my
from the opinions in those other cases that the yurt
belheved the Act Manvuaye UlamMmbolyyuou ly require
permit in tnese Circumstance and the argue that we
hould be pel ded by that inferences bn the Catsi
ases, the Second Circuit held that pumping pollute
water from the Schoharie Reservoir into the [és pou
Creek required an NPDICS permit. Catskills 1, 278 les
if 144 Tho e Wualer rode Wei Hhvdrolovie
connected: they both flowed into the Hudson River. But
because of directional flow and gravity, waters from the
reservoir “under natural conditior would never
reach |e Opu (Creek. Jd. at 484, ‘The econd Coarcu
tated that “Inlo one can reasonably aryvue that the
Vale inthe Re ervolr and tne (ypoul ire Mil
the ‘same. /d. at 492
The Second Circuit. the brus] isd e fy
23a
APPENDIX A
cited the “ordinary meaning” of the statutory text,
especially the word “addition,” and called the “singular
entity’ theory of navigable waters .... inconsistent with
the ordinary meaning of the word ‘addition.’” Jd. at 493.
It concluded that “none of the statute’s broad purposes
sways us from what we find to be the plain meaning of
its text... We find that the textual requirements of the
... definition of ‘discharge of a pollutant’ in § 1362(12)
are met here.” /d. at 494. In Catskills 7/7] that court
confirmed its holding. In doing so, it found unpersuasive
the EPA’s 2005 guidance letter, which reiterated the
EPA's view that a permit was not required. That letter,
the court explained, “simply overlooked [the] plain
language [of the statute].” 451 F.3d at 84. The letter
was not entitled to, and did not receive, Chevron-level
deference. /d. at 82. It only warranted and received
Skidmore consideration for persuasive value, which is
a significantly less deferential standard. /d.
Importantly, the Second Circuit explicitly refused
to foreclose the possibility that its decision might be
different if Chevron deference applied. 2738 F.3d at 490
(“Ifthe 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.”). That is the situation we have
here.
Our opinion in Miccosukee followed the same line of
reasoning as the Second Circuit in the Catskills cases
and reserved the same question, which is the question
before us now. Miccosukee, 280 F.3d at 1367, vacated,
24a
APPENDIX A
541 U.S. at 112, 124 S. Ct. at 1547. In Miccosukee we
stated our belief that the Clean Water Act required an
NPDES permit for transfers of polluted water between
meaningfully distinct water bodies, but we qualified that
conclusion. 280 F.3d at 1369. We pointed out that we
could “ascertain no EPA position applicable to S-9 to
which to give any deference, much less Chevron
deference.” 7d. at 1368 n.4. Now there is an EPA
regulation that poses the Chevron issue missing from
the Miccosukee case.’
None of the decisions the parties have thrown our
way helps either side much. The Water District’s
decisions found ambiguity in the relevant provision of
the Clean Water Act as it applied to dams involving the
same bodies of water, not to pumps transferring
pollutants between meaningfully distinet bodies of water.
The Friends of the Everglades’ decisions, though
involving the same factual context, decided only how best
to construe the statutory language—not whether that
language is ambiguous and could reasonably be
construed another way. We turn to that issue now.
7. The Dubois case is similar to Miccosukee and the
Catskills cases. In Dubois the First Circuit held that
transferring pollutants from a river to a pond required an
NPDES permit because the court wanted to avoid “a watering
down of Congress’ clear statutory protections.” 102 F.3d at 1299.
However, the court did not apply Chevron deference, id. at 1285
n.l5, and it does not appear that the Forest Service had
promulgated a regulation that the court could have deferred to
even if it had desired to do so /d. at 1296-99.
25a
APPENDIX A
IV.
In the first step of Chevron analysis we apply the
traditional tools of statutory construction to ascertain
whether Congress had a specific intent on the precise
question before us. See Chevron, 467 U.S. at 843 n.9,
104 S. Ct. at 2782 n.9 (“If a court, employing traditional
tools of statutory construction, ascertains that Congress
had an intention on the precise question at issue, that
intention is the law and must be given effeect.”). If
Congress did, then the statute is not ambiguous and
Chevron has no role to play. The traditional tools of
statutory construction include “examination of the text
of the statute, its structure, and its stated purpose.”
Miami-Dade County vu. United States EPA, 529 F3d
1049, 1063 (11th Cir. 2008); Robinson v. Shell Oil Co.,
519 U.S. 337, 341, 1178. Ct. 8438, 846, 1386 L. Ed. 2d 808
(1997) (“The plainness or ambiguity of statutory
language is determined by reference to the language
itself, the specific context in which that language is used,
and the broader context of the statute as a whole.”).*
The Clean Water Act outlaws “the discharge of any
pollutant” subject to several exceptions, one of which is
where an NPDES permit is obtained. 33 U.S.C. $$ 1311,
+
S Recently we reluctantly concluded that in determining
for Chevron purposes whether Congress had an intent on the
issue at hand, we also look to legislative history Miccosukee,
2009 U.S. App. LEXIS 9715, 2009 WL 1199871 at *14. We do
that on page 34, infra.
26a
APPENDIX A
1342(a)(1). “Discharge” includes “any addition of any
pollutant to navigable waters from any point source.”
33 U.S.C. § 1862(12). “Navigable waters,” in turn, is
defined as “the waters of the United States.” 33 U.S.C.
§ 1362(7). The Supreme Court has recently instructed
that the term “discharge of pollutants” and its definition
is “of particular significance” within a “complicated
statute.” S.D. Warren Co., 547 U.S. at 380, 126 S. Ct. at
1850.
The question is whether “addition ... to navigable
waters’ —meaning addition to “the waters of the United
States”—refers to waters in the individual sense or as
one unitary whole. Under the Water District’s unitary
waters theory, “to navigable waters” means to all
navigable waters as a singular whole. As a result,
pollutants can be added to navigable waters only once,
and pollutants that are already in navigable waters are
not added to navigable waters again when moved
between water bodies. Conversely, the Friends of the
Everglades’ position is that “to navigable waters” refers
to each individual water body. As a result, the statute
‘
means “any addition of any pollutant to ary navigable
waters,” even though those are not the words the statute
uses. Under the Friends of the Everglades’ reading,
pollutants existing in one navigable water, like the
agricultural canals, are “added... to navigable waters”
when they are transferred into another navigable water,
like Lake Okeechobee.
The common meaning of the term “waters” is not
helpful. In ordinary usage “waters” ean collectively refer
wi we
2/a
APPENDIX A
to several different bodies of water such as “the waters
of the Gulf coast,” or can refer to any one body of water
such as “the waters of Mobile Bay.” An “addition . . . to
navigable waters” could encompass any addition to a
single body of navigable water regardless of source (like
water pumped from one navigable body of water to
another), or it could mean only an addition to the total
navigable waters from outside of them (like a factory
pumping pollutants into a navigable stream). Because
the statutory language could be used either way, we turn
next to its immediate context.
B.
The context in which language is used is important.
See Robinson, 519 U.S. at 341, 117 S. Ct. at 846; Koons
Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60, 124
S. Ct. 460, 467, 160 L. Ed. 2d 389 (2004) (“A provision
that may seem ambiguous in isolation is often clarified
by the remander of the statutory scheme ... because
the same terminology is used elsewhere in a context that
makes its meaning clear ...."); FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 182, 120 8.
Ct. 1291, 1300-01, 146 L. Ed. 2d 121 (2000) (“The
meaning—or ambiguity—of certain words or phrases
may only become evident when placed in context.”).
The Water District argues that ‘he context of 33 U.S.C.
§ 1862(12) demonstrates that Congress intentionally
selected each word in the definition of “discharge” to
deliver a specific meaning. It asserts that the Friends
of the Everglades’ reading of the statute would require
us to add words to the law, which is impermissible.
28a
APPENDIX A
“Discharge” is defined in the Act as “[a]ny addition
of any pollutant to navigable waters from any point
source.” 33 U.S.C. § 1362(12). According to the Water
District, the conspicuous absence of “any” before
“navigable waters” in § 13862(12) supports the unitary
waters theory because it implies that Congress was not
talking about any navigable water, but about all
navigable waters as a whole. The Friends of the
Everglades’ reading effectively asks us to add a fourth
“any” to the statute so that it would read: “Any addition
of any pollutant to any navigable waters from any point
source.” But we are not allowed to add or subtract words
from a statute; we cannot rewrite it. See 62 Cases, More
or Less, Each Containing Six Jars of Jam v. United
States, 340 U.S. 593, 596, 71 S. Ct. 515, 518, 95 L. Ed.
566 (1951) (we are not “to add nor to subtract, neither
to delete nor to distort [the words]” Congress has used);
Blount v. Rizzi, 400 U.S. 410, 419, 91S. Ct. 423, 429, 27
L. Ed. 2d 498 (1971) (“{I]t is for Congress, not this Court,
to rewrite the statute.”); Nguyen uv. United States, 556
"3d 1244, 1256 (11th Cir. 2009) (“We are not authorized
to rewrite, revise, modify, or amend statutory language
in the guise of interpreting it... .”); Albritton v. Cagle’s,
Ine., 508 F.3d 1012, 1017 (11th Cir. 2007) (“We are not
empowered to rewrite statutes.”). Besides, if the
meaning of language is plain, no alteration should be
necessary to elarify it. The addition or subtraction of
words indicates that the unaltered language is not plain.
There is also the fact that Congress knows how to
use the term “any navigable water|s]” when it wants to
protect individual water bodies instead of navigable
29a
APPENDIX A
waters as a collective whole. Within the Clean Water Act
itself, Congress authorized the EPA to investigate
Pte pollution of any navigable waters,” 33 U.S.C.
1254(a)(3), and referred to the EPA’s dissemination of
ae about changes in the flow “of any navigable
waters.” 338 U.S.C. § 1814(f)(2)(F). Other water
protection statutes also use the term “any navigable
water[s].” See, e.g., 338 U.S.C. § 407 (“It shall not be
lawful to throw, discharge, or deposit ... any refuse
matter ... into any navigable water of the United
States. ..”);33 U.S.C. § 419 (“The Secretary of the Army
is authorized ... to govern the transportation and
dumping into any navigable water, or waters adjacent
thereto, of dredgings, earth, garbage, and other refuse
materials... .”); 33 U.S.C. § 512 (“No bridge shall at any
time unreasonably obstruct the free navigation of any
navigable waters of the United States.”). The common
use by Congress of “any navigable water” or “any
navigable waters” when it intends to protect each
individual water body supports the conclusion that the
ner of the unmodified term “navigable waters” in
1362(12) (or the use in its definition, “the waters of
ae United States,” at § 1362(7)) means the waters
seiniprpodilan See Delgado v. United States Att'y Gen., 487
F'3d 855, 862 (11th Cir. 2007) (“{W here Congress knows
how is say something but chooses not to, its silence is
eontrolling.”) (quotation marks omitted); DirecTV Jne.
vw Brown, 371 F38d 814, 818 (11th Cir. 2004) (“|W hen
Congress uses different language in similar sections, it
intends different meanings.”) ore Traola & CIA,
S.A. v. Kimberly-Clark Corp., 232 F.3d 854, 859 (11th
Cir. 2000).
30a
APPENDIX A
That context does not, however, establish that the
meaning of the statutory language is clear. Although
Congress did use the term “any navigable waters” in
the Clean Water Act to protect individual water bodies,
it also used the unmodified “navigable waters” to mean
the same thing. For example, as the Supreme Court
noted in Miccosukee, 541 U.S. at 107, 124 S. Ct. at 1544,
the Act discusses the states’ creation of water-body-
specific quality standards based on “the designated uses
of the navigable waters involved.” 33 U.S.C. § 1313(c)(2).
In that context “the navigable waters” must refer to
many individual water bodies—exactly what the Friends
of the Everglades contend that it means in 33 U.S.C.
§ 13862(12) (“Any addition of any pollutant to navigable
waters ...”). See also Miccosukee, 541 U.S. at 106-07,
124 S. Ct. at 1544 (citing § 1813(c)(2) and stating that
“several NPDES provisions might be read to suggest a
view contrary to the unitary waters approach.”).
The result so far is that we are not persuaded that
the meaning of the statutory provision at issue, read
either in isolation or in conjunction with similar
provisions, is plain one way or the other. The statutory
context indicates that sometimes the term “navigable
waters” was used in one sense and sometimes in the
other sense.
he
The “broader context of the statute as a whole” does
not resolve the ambiguity. Roberson, 519 U.S. at 341,
117 8. Ct. at 846; Koons Buick, 543 U.S. at 60, 125 5.
3la
APPENDIX A
Ct. at 467 (explaining that a seemingly ambiguous
provision may be clarified by the broad context of the
statute if “only one of the permissible meanings
produces a substantive effect that is compatible with
the rest of the law.”). The general purpose of the Clean
Water Act is broad and ambitious:
The objective of this chapter is to restore and
maintain the chemical, physical, and biological!
integrity of the Nation’s waters. In order to
achieve this objective it is hereby declared
that, consistent with the provisions of this
chapter— (1) it is the national goal that the
discharge of pollutants into the navigable
waters be eliminated by 1985. .
33 U.S.C. § 1251(a). The NPDES permitting program
is the centerpiece of the Clean Water Act. See, e.g., Am.
Iron & Steel Inst. v. EPA, 115 F38d 979, 990, 325 U.S.
App. D.C. 76 (D.C. Cir. 1997); Gorsuch, 693 F.2d at 175-
76 (“There is indeed some basis in the legislative history
for the position that Congress viewed the NPDES
program as its most effective weapon against
pollution.”). In light of the sweeping goals of the Act,
the Senate Conference Report states that the “conferees
fully intend that the term ‘navigable waters’ be
given the broadest possible constitutional interpretation
...."8. Conf. Rep. 92-1236 (1972), as reprinted in 1972
9. That statement appears intended to extend the
application of the Clean Water Act to cover as much water as
the Commerce Clause would allow. See generally Rapanos, 547
(Cont'd)
32a
APPENDIX A
U.S.C.C.A.N. 3776, 3822. The Friends of the Everglades
argue that, for two reasons, the Clean Water Act’s
ambitious anti-pollution goals make it absurd to read
the Act as implicitly creating a sizeable exception to the
NPDES permitting program for pollutants that come
from other navigable waters.
First, they assert that the permitting program itself
is designed to protect individual water bodies. State
water quality standards, which are specific to individual
water bodies, are intertwined with the NPDES
permitting process. If a water body fails to meet the
state water quality standards, the government alters
the terms of the NPDES permits held by contributing
point sources in order to ratchet down the load of
pollutants that may be pumped into that water body.
Miccosukee, 541 U.S. at 107, 1245S. Ct. at 1544; 33 U.S.C.
§ 13813(d). Given the permitting requirement’s role in
maintaining individualized water quality standards, the
Friends of the Everglades argue that it would make little
sense to allow uncontrolled, un-permitted pumping
between navigable waters that could have different
quality standards. Lake Okeechobee, for example, is
classified as drinking water under the state water quality
standards. Pumping dirty agricultural canal water into
the lake makes it more difficult to meet the lake’s quality
standards. To allow such pumping without a permit
(Cont'd)
U.S. at 715, 1268. Ct. at 2208. The question before us is not the
constitutional reach of the Act but the meaning of specific
Statutory language where the Act does apply.
34a
APPENDIX A
tends to undermine the goals of the NPDES program.
The Friends of the Everglades argue that the unitary
waters theory, which would exclude from the permitting
requirement the pumping of pollutants into the lake, is
an unreasonably narrow reading of the Act.
Second, the Friends of the Everglades argue that
reading the statute to protect only the navigable waters
as one unitary whole could Jead to results even more
absurd than pumping dirty canal water into a reservoir
of drinking water. If an “addition... to navigable waters”
occurs only at a pollutant’s first entry into navigable
waters, and never again when it is transferred to a
different water body, then the NPDES program— the
centerpiece of the Clean Water Act— would require no
permit for a project to pump the most loathsome
navigable water in the country into the most pristine
one.
These horrible hypotheticals are frightening enough
that we might agree with the Friends of the Everglades
that the unitary waters theory does not comport with
the broad, general goals of the Clean Water Act. See
generally 33 U.S.C, § 1251(a) (“to restore and maintain
the chemical, physical, and biological integrity of the
Nation’s waters”), But we “interpret and apply statutes,
not congressional purposes.” /n re Hedrick, 524 F.3d
1175, 1188 (lith Cir. 2008); Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 79, 118 S. Ct. 998,
1002, 140 L. Ed. 2d 201 (1998) (“[I]t is ultimately the
provisions of our laws rather than the principal concern:
of our legislators by which we are governed.”); Norfoll
1
APPENDIX A
Southern R. Co. v. Sorrell, 549 U.S. 158, 171, 127 S. Ct.
799, 166 L. Ed. 2d 638 (2007) (“{I|t frustrates rather
than effectuates legislative intent simplistically to
assume that whatever furthers the statute’s primary
objective must be the law.”) (citation omitted). And thers
are other provisions of the Clean Water Act that do not
comport with its broad purpose of restoring and
maintaining the chemical, physical and biological
integrity of the Nation’s waters. (Which may help explain
why the Act’s express goal of completely eliminating all
discharge of pollutants into the navigable waters by
1985 was not met.)
No one disputes that the NPDES program i:
restricted to point sources. Non-point source pollution,
chiefly runoff, is widely recognized as a serious water
quality problem, but the NPDES program does not even
address it. See generally Rapanos, 547 U.S. at 777, 126
S. Ct. at 2247 (Kennedy, J., concurring) (observing that
agricultural runoff from farms along the Mississipp!
River creates an annual hypoxic ‘dead zone’ in the Gulf
of Mexico that is nearly the size of New Jersey); Oregon
Natural Desert Ase’n v. United States Forest Serv., 550
i'3d 778, 780 (9th Cir. 2008) (stating that the “disparate
treatment of discharges irom point sources and nonpoint
sources Is an organizational paradigm of the [Clean
Water] Act”). Not only are ordinary non-point source
outside the NPDES program, but Congress even
created a special exception to the definition of “point
source” to exclude agricultural storm water discharge
and return flows from irrigation, despite their known,
substantially harmful impact on water quality. 33 U.S.C
362(14),
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SOq
APPENDIX A
As the Supreme Court once said, “lajfter seizing
every thing from which aid can be derived we are left
with an ambiguous statute.” (/nited States v. Bass, 404
U.S. 336, 347, 92S. Ct. 515, 522, 80 L. kd. 2d 488 (1971)
(internal citation and alteration omitted). There are two
reasonable ways to read the § 1361(12) language “any
addition of any pollutant to navigable waters from any
point source.” One is that it means “any addition ... to
lany] navigable waters;” the other is that it means “any
addition... to navigable waters [as a whole|.” As we
have held before, “the existence of two reasonable,
competing interpretations is the very definition of
ambiguity.” (/nited States v. Acosta, 3868 F.8d 1141, 1155
(Jith Cir, 2004) (quotation marks omitted),
1)
Having concluded that the statutory langruaye |
ambiguous, our final issue is whether the EPA’
reyulation, which accepts the unitary waters theory that
transferring pollutants between navigable waters is not
an “addition... to navigable waters,” is a permissible
construction of that language. Chevron, 467 US. at 848,
104 S. Ct. at 2782. In making that determination, we
“need not conclude that the ageney construction
was... the reading: the court would have reached if the
question initially had arisen in a judicial proceeding.”
ld. at 887, $43 n.11, 104 SS. Ct. at 2782 n. 11: see also id
ul 844, 1048. Ct. at 2782 ([A| court may not substitute
its own construction of a statutory provision for a
reasonable interpretation made by the administrator o!
an ayency.”). Because the EPA's construction is one of
lad
~]
fo
APPENDIX A
the two readings we have found is reasonable, we cannot
say that it is “arbitrary, capricious, or manifestly contrary
to the statute.” /d. at 844, 104 S. Ct. at 2782.
Sometimes it is helpful to strip a legal question of
the contentious policy interests attached to it and think
about it in the abstract using a hypothetical. Consider
the issue this way: Two buckets sit side by side, one with
four marbles in it and the other with none. There is a
rule prohibiting “any addition of any marbles to buckets
by any person.” A person comes along, picks up two
marbles from the first bucket, and drops them into the
second bucket. Has the marble-mover “add[ed] any
marbles to buckets”? On one hand, as the Friends of
the Everglades might argue, there are now two marbles
in a bucket where there were none before, so an addition
of marbles has occurred. On the other hand, as the
Water District might argue and as the EPA would
decide, there were four marbles in buckets before, and
there are still four marbles in buckets, so no addition of
marbles has occurred. Whatever position we might take
if we had to pick one side or the other of the issue, we
cannot say that either side is unreasonable.
Like the marbles rule, the Clean Water Act’s
language about “any addition of any pollutant to
navigable waters from any point source,” 33 U.S.C.
§ 1362(12), is ambiguous. The EPA’s regulation adopting
the unitary waters theory is a reasonable, and therefore
permissible, construction of the language. Unless and
until the EPA reseinds or Congress overrides the
regulation, we must give effect to it.
38a
APPENDIX A
In the defendants’ appeal, we REVERSE the
district court’s judgment that the operation of the S-2,
S-3, and S-4 pumps without NPDES permits violates
the Clean Water Act. We DISMISS AS MOOT the
plaintiffs’ cross-appeal from the dismissal of the Water
District on Eleventh Amendment grounds.
REVERSED in part and DISMISSED in part.
39a
APPENDIX B — FINAL JUDGMENT OF THE
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA,
DATED AND FILED JUNE 15, 2007
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 02-80309-CIV-ALTONAGA/Turnoff
FRIENDS OF THE EVERGLADES, INC., et al.,
Plaintiffs,
VS.
HENRY DEAN, Executive Director, South
Florida Water Management District, in his
official capacity; et al.,
Defendants.
FINAL JUDGMENT
THIS CAUSE came before the Court upon the
Order on Remedies issued separately on this date.
Pursuant to the Order on Remedies and the Court’s
December 11, 2006 Order Setting Forth Findings of Fact
and Conelusions of Law [D.E. 636], it is
40a
APPENDIX B
ORDERED AND ADJUDGED as follows:
(1) A declaratory judgment is issued in favor of
Plaintiffs. In the absence of a National Pollutant
Discharge Elimination System (“NPDES”) permit, the
South Florida Water Management District's
(“SFWMD['s]”) operation of the S-2, S-3, and S-4 pump
stations to backpump pollutant-containing waters from
the canals in a northerly direction into Lake Okeechobee
is in violation of the Clean Water Act.
(2) A permanent injunction is issued in favor of
Plaintiffs. The SFWMD’s Executive Director shall apply
to the Florida Department of Environmental Protection
fora NPDES permit forthwith.
(3) The Court shall retain jurisdiction, including to
the extent allowable in light of the parties’ anticipated
appeal, to ensure compliance with this Judgment.
Furthermore, the Court retains jurisdiction over
Plaintiffs’ request for the award of attorney's fees and
costs.
DONE AND ORDERED in Chambers at Miami,
Florida, this 14th day of June, 2007.
s/ Cecilia M. Altonaga
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
dla
APPENDIX C — FINAL JUDGMENT OF THE
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA,
DATED JUNE 14, 2007 AND
FILED JUNE 15, 2007
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 02-80309-CIV-ALTONAGA/Turnoff
FRIENDS OF THE EVERGLADES, INC., et al.,
Plaintiffs,
VS.
HENRY DEAN, Executive Director, South Florida Water
Management District. in his official capacity; ef al.,
Defendants.
ORDER ON REMEDIES
THIS CAUSE came before the Court upon the
parties’ memoranda on injunctive relief and remedies;'
1. Plaintiffs, Friends of the Everglades (“FOE”),
Fishermen Against Destruction of the Environment, Ince.
(“FADE”), and Florida Wildlife Federation's (*“FWF[‘s]")
Memorandum on Injunctive Rehef and Remedies |D FE. 649);
Intervenor-Plaintiff, the Mieccosukee Tribe of Indians of
(Cont'd)
42a
APPENDIX C
Plaintiffs’ and Plaintiff-Intervenor’s Joint Motion for
Joinder of Mike Sole, in his Official Capacity as
Secretary of the Florida Department of Environmental
Protection, as an Involuntary Plaintiff |D.E. 653], filed
on March 6, 2007; Intervener-Defendant, U.S. Sugar’s
Motion to Strike Plaintiffs’ Exhibits to Plaintiffs’
Memorandum on Injunctive Relief and Remedies
{D.E. 665], filed on April 13, 2007; and Defendant, the
SFWMD’s Motion for Certification Under § 1292(b)
[D.E. 689}, filed on June 4, 2007. The Court has carefully
considercd the parties’ written submissions, the record,
and applicable law.
I. BACKGROUND
On December 11, 2006, after a bench trial, the
undersigned issued an Order Setting Forth Findings of
Fact and Conclusions of Law (the “December 11 Order”),
which concluded, in pertinent part, that “in the absence
of a [National Pollution Discharge Elimination System
(“NPDES”)] permit, the operation of the S-2, S-3, and
5-4 pump stations to backpump pollutant-containing
(Cont'd)
Florida’s (the “Tribe[’s]”) Brief in Support of Appropriate Final
Judgment Remedies and Procedures [D.E. 654]; Defendants,
South Florida Water Management District (the “SFWMD”)
and Carol Wehle’s (“Wehle[’s]”) Response in Opposition to
Plaintiffs’ Memoranda Regarding Remedies [D.E. 673];
Intervenor-Defendant, United States’ Remedy Brief [D.E.
662]; Intervenor-Defendant, United States Sugar Corporation’s
(“US. Sugar[’s]") Memorandm on Remedies and Post-Trial
Proceedings {D.E. 664]; and the reply briefs filed by the parties.
43a
APPENDIX C
waters from the canals in a northerly direction into
Lake Okeechobee is in violation of the {Clean Water
Act].” (Dec. 11 Order [D.E. 636] at 106). Finding that
the issue had not been fully briefed, the Court did not
rule, at that time, on Plaintiffs’ request that the Court
issue an injunction requiring the SFWMD and/or its
Executive Director to obtain a NPDES permit for the
SFWMD’s backpumping activities. (See id.).
The parties have submitted lengthy briefs regarding
what particular injunctive relief, if any, the Court should
order. Plaintiffs and Intervenor-Plaintiff, in their briefs
regarding remedies, have taken the position that the
Court should enter an injunction requiring the
SFWMD’s Executive Director* to apply for a NPDES
permit and should hold additional hearings to determine
what interim injunctive relief should be granted while
that NPDES permit application is pending.
Defendants, the SFWMD and Wehie, agree that,
given the December 11 Order, the SFWMD must submit
to the state’s NPDES permitting scheme (although they
argue an injunction is not necessary because they will
voluntarity comply with that requirement). Defendants
further argue that the Court should issue a final
interpretive judgment and retain jurisdiction to ensure
2. In the December 11 Order, the Court found that the
SFWMD enjoyed sovereign immunity from Plaintiffs’ suit. The
SFWMD, however, has conceded that the case may proceed
against its Executive Director under the doctrine of Fx parte
Young, 209 U.S. 123 (1908).
44a
APPENDIX C
compliance with that judgment.’ (See SFWMD Remedies
Br. |D.E. 673] at 23). They also maintain that the Court
does not have the authority to, nor should it, order any
type of interim injunctive relief. (See id. at 3-23).
Il. ANALYSIS
A. Issuance of Injunction Requiring the SFWMD
to Apply for NPDES Permit
1. Legal Standard
A party is entitled to the issuance of a permanent
injunction where the party has established: (1) the
violation of a right asserted in the complaint (success
on the merits in the party’s case); (2) that there is no
adequate remedy at law for the violation of the right;
and (3) that irreparable harm will result if the court does
not order injunctive relief. See Alabama v. United States
Army Corps of Eng’rs, 424 F.3d 1117, 1128 (11th Cir.
3. Intervenor-Defendant, United States, agrees that an
order requiring the SFWMD/Wehle to apply for a NPDES
permit would be appropriate in this case. (See U.S. Remedies
Br. |D.E. 662] at 3). Intervenor-Defendant, U.S. Sugar, also
appears to agree that an injunction requiring compliance with
the NPDES permitting scheme would be appropriate should
the Court find that, at tnal, Plaintiffs met their burden of
proving irreparable harm and that such an injunction would be
in the public interest. (See U S. Sugar Remedies Br |D.E. 664}
at 46-47). U.S. Sugar has also taken the position that the issuance
of interim injunctive relief would be inappropriate in this case.
(See rd. at 3).
45a
APPENDIX C
2005). Because issuance of an injunction is an equitable
remedy, the Court must also balance the hardships
between the parties and give due regard to the public
interest in fashioning an appropriate remedy. See Amoco
Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987).
2. Issuance of Injunction is Warranted Here
As more fully set forth in the Court’s December 11
Order,’ Plaintiffs have established a violation of the
CWA, prevailing on the merits of their claim. Such a
violation of the CWA may only be remedied by the
issuance of equitable relief, and the Court finds that
there is no adequate remedy at law. The outstanding
questions, then, are whether: (1) Plaintiffs established
at trial the existence of irreparable harm, and (2) the
balance of hardships and the public interest favor the
issuance of an injunction requiring that the SFWMD’s
Executive Director apply fora NPDES permit.
a. Ilrreparable Harm
Plaintiffs contend that they established at trial that
irreparable harm will result if their requested relief is
not granted. In support of this argument, they cite to
the testimony of Dr. Tom Crisman, who testified that
the backpumping at issue creates a significant risk of
triggering a toxic algal bloom that could cause serious
injury to humans and death to wildlife. (See Pls.
4 The Court adopts in this Order the Findings of Fact and
Conclusions of Law set forth in the December 11 Order.
46a
APPENDIX C
Remedies Brief |D.H. 649] at 4-5). In addition, Plaintiffs
contend that the trial testimony established that
backpumping and disinfection create toxic disinfection
byproducts that can sicken humans. (See 7d. at 5).
Finally, Plaintiffs contend that the trial testimony
established that backpumping causes irreparable
ecological harm to Lake Okeechobee. (See id. at 6).
Defendants do not seriously challenge these assertions,
and the undersigned finds that Plaintiffs have met their
burden of showing the potential for irreparable harm in
the absence of a permanent injunction.
b. Balance of Equities and Public
Interest
Plaintiffs contend that the irreparable harm they
illustrated at trial outweighs any inconvenience to
Defendants that will result from the issuance of an
injunction requiring a NPDES permit. (See id. at 6).
They also assert that the public interest in safe water
supplies and the ecological integrity of Lake
Okeechobee favor the issuance of such an injunction.
(See id.). The undersigned agrees and finds that
equitable considerations favor the issuance of an
injunction requiring that the SFWMD’s Executive
Director apply fora NPDES permit.’
5. The SFWMD and Wehle assert that the issuance of an
injunction is unnecessary because the December 11 Order made
clear that the SFWMD must have a NPDES permit for its
backpumping operations, an issue that was previously unclear,
and the SFWMD has every intention of complying with the law
(Cont'd)
47a
APPENDIX C
3d. Inclusion of Deadlines in Injunction
Plaintiffs contend that the Court should place a
specific time limit for compliance and for the issuance of
the permit. Given anticipated complications in the
permitting process, including, among other things, that
there are no “off-the-shelf” templates that can be
followed in fashioning an appropriate permit, the Court
finds that the imposition of hard deadlines for issuance
of the NPDES permit would be inappropriate in this
case, and that an order requiring application for such a
permit “forthwith” will adequately address Plaintiffs’
claims.
B. Issuance of Interim Injunctive Relief
In their Remedies Brief, Plaintiffs assert that the
Court should hold hearings regarding whether to order
interim relief, which could include, inter alia, requiring:
(1) the SFWMD and/or its Executive Director to report
to the Court on backpumping episodes; (2) development
of a new pumping protocol; (3) preparation of an
analysis of the effect of the Bolles Canal expansion;
(4) construction of additional in-city and on-farm on-site
(Cont'd)
as interpreted by the Court. (See SI'WMD Remedies Br at 24
25) Having found that Plaintiffs are legally entitled to the
issuance of an injunction, the remedy they sought in their
complaints, the undersigned 1s not persuaded now by the
argument that the Court should not enter an injunction because
the SFWMD’s Executive Director will voluntarily comply with
the implications of the Court's interpretation of the CWA,
48a
APPENDIX C
floodwater storage facilities; (5) application of the
SFWMD’s best management practices (“BMP”) rule in
the S-4 Basin; and (6) stormwater treatment area
(“STA”) construction or enlargement. (See Pls. Remedies
Br. at 9-10). Intervenor-Plaintiff, the Tribe, additionally
requests that the Court issue an order invalidating the
Environmental Protection Agency’s Proposed Rule
regarding NPDES water transfers, see 71 Fed. Reg.
32887, a request the United States adamantly opposes
on a number of bases. (See Tribe Remedies Br.
1D... 654] at 16-19; U.S. Remedies Br at 7-11).
Plaintiffs propose an extensive and lengthy process
for the Court’s consideration of these proposed interim
remedies. That process would include the designation
of experts, exchange of expert reports and rebuttal
expert reports, mediation wherein the parties’ experts
would attempt to agree on appropriate interim relief,
expert depositions, and an evidentiary hearing.
Defendants raise a number of challenges to
Plaintiffs’ requests for interim relief, including that
Plaintiffs failed to put Defendants on notice of these
requests in their complaints and failed to establish their
entitlement vo such interim relief at trial. Defendants
also raise a number of legal arguments regarding the
Court’s authority to issue such interim relief. In
addition, based on Plaintiffs’ proposal for a lengthy
remedies procedure, the SEWMD has renewed its
Motion for Certification Under § 1292, urging that the
Court enter a final declaratory judgment and allow the
parties to take an interlocutory appeal of the December
11 Order.
Wa
APPENDIX ¢
The undersigned finds that the issuance of interim
relief is premature, and perhaps academic at this time
By entering a Final Judgment that includes the
permanent injunction that Plaintiffs sought from the
inception of this case, the Court has resolved the case
in a manner that allows the parties to immediatel)
pursue their appeals of the Court’s conclusion that the
CWA requires the SkKWMD to acquire a NPDES permit
for its backpumping activities. That appeal would likely
result in a stay of any interim relief the Court could
order at the conclusion of the somewhat lengthy proce
Plaintiffs envision. Conducting further evidentiary
hearings, which would require the parties to engage in
additional discovery and would require the Court to
resolve highly technical arguments regarding the
environmental impact of the SFWMD’s activities, could
potentially result in the unnecessary expenditure of
resources for both the judiciary and the parties. Should
the Court’s interpretation of the CWA be overturned
on appeal, that expenditure of time and resources would
have been in vain
In entering a inal Judgment, the Court will retain
jurisdiction to ensure compliance with the judgment
meaning that the Court will have jurisdiction to order
interim remedies should this matter return to this Court
‘
following appeal. Plaintiffs’ present requests for interim
rehef are ther fore denied
SOa
APPENDIX ©
C. Joinder of DEP Secretary Mike Sole
In their Joint Motion for Joinder of Mike Sole, in
his Official Capacity as Secretary of the Florida
Department of Environmental Proteetion, as an
InvoluntaryPlaintiff [D.e. 653], Plaintiffs and
Intervenor-Plaintiff contend that the Court should join
Mike Sole (the “DEP Secretary”) as an involuntary
plaintiff for purposes of the remedies phase of the
proceedings to “ensurle]| that the defendant’s NPDES
permit applications ... are promptly processed and
issued and to facilitate consideration of the permitting
agency's position on questions relating to interim
remedies.” (Mot. [D.lé. 653] at 1-2).
Setting aside the issues of whether such a joinder
would be feasible under the Federal Rules of Civil
Procedure, the undersigned agrees with Defendants and
Intervenor-Defendant, United States, that such joinder
would be premature at this time because there is no
evidence that the DIP Secretary or the Florida
Department of Environmental Protection will attempt
to delay issuance of a permit to the SEWMD. Should
such a delay occur or should another reason for joinder
arise, Plaintiffs may renew their motion,
>. Dismissal of the SEWMD
In their brief reyarding remedies, the SEWMD and
Wehle request that the SEWMD be dismissed from this
action on the basis of the sovereign immunity that the
undersigned found it enjoys from this suit. The request
Is appropriate and is granted
Sla
APPENDIX C
HI. CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED as follows:
(1) Plaintiffs’ request that the Court issue an
injunction requiring the SFWMD's Executive Director
to apply for a NPDES permit forthwith is GRANTED.
The injunction shall be issued in a separate Final
Judgment, which shall be immediately appealable. The
Court will retain jucisdiction over the parties, including
to the extent allowable while any appeal is pending, to
ensure compliance with the judgment.
(2) Plaintiffs’ request for interim injunctive relief
is DENIED for the reasons set forth above.
(3) Plaintiffs and Plaintiff-Intervenor’s Joint
Motion for Joinder of Mike Sole, in his Official Capacity
as Secretary of the Florida Department of
Ienvironmental Protection, as an Involuntary Plaintiff
|D.E. 653] is DENIED.
(4) U.S. Sugar’s Motion to Strike Plaintiffs’ Exhibits
to Plaintiffs’ Memorandum on Injunctive Relief and
Remedies [D.E. 665] is DENIED AS MOOT.
(5) The SEFWMD’s Motion for Certification Under
§ 1292(b) [D.E. 689] is DENIED AS MOOT.
S2a
APPENDIX C
(6) Defendants’ Motion to Strike and, in the
Alternative, Response to Requests to Clarify and
Reconsider Eleventh Amendment Issues [D.E. 691],
filed on June 14, 2007, is DENIED.
(7) Plaintiffs’ claims against Defendant, the
SFWMD, are DISMISSED. The Executive Director of
the SFWMD shall remain as a party to this action.
(8) The Clerk of the Court is instructed to CLOSE
the case. Any pending motions not otherwise ruled upon
are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami,
Florida, this 14th day of June, 2007.
s/ Cecilia M. Altonaga
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
S3a
APPENDIX D — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF FLORIDA, DATED AND FILED DECEMBER 11,
2006, SETTING FORTH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 02-80309-CIV-ALTONAGA/Turnoff
FRIENDS OF THE EVERGLADES, INC., et al.,
Plaintiffs,
VS.
SOUTH FLORIDA WATER
MANAGEMENT DISTRICT, ef al.,
Defendants.
ORDER SETTING FORTH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
THIS CAUSE came before the Court for a non-jury
trial beginning on January 9, 2006 and ending on April
19, 2006. The Court heard testimony from over 20
witnesses, and approximately 165 exhibits were entered
into evidence.
S4a
APPENDIX D
I. BACKGROUND
Plaintiffs, Friends of the Everglades (“FOE”) and
Fishermen Against Destruction of the Environment
(“FADE”), filed suit against the South Florida Water
Management District (“SFWMD”) on April 8, 2002.
FOE, an organization of over 6,000 members, was formed
by Marjory Stoneman Douglas to preserve and protect
the Everglades. (Comp. [|D.E.1] at 2). FADE was
founded by a group of fishermen and conscientious
conservationists concerned about the degradation of
Lake Okeechobee. (See id. at 3). The SFWMD is an
independent, special district of the State of Florida
charged with the operation and maintenance of certain
pump stations that pump water into Lake Okeechobee.
(See id. at 4).
The Complaint sought an order requiring the
SFWMD to obtain a National Pollution Discharge
Elimination System (“NPDES”) permit under the Clean
fater Act (“CWA”), 33 U.S.C. § 1251 et seqg., before the
SFWMD could discharge water containing pollutants
into Lake Okeechobeeby means of the S-2, S-3, and S-4
pump stations. Jurisdiction was based on the “citizen
suits” provision of the CWA, 33 U.S.C. § 1365(a),! and
1. Section 1364(a) provides, in part, that
any citizen may commence a civil action on his own
behalf —
(1) against any person (ineluding (i) the
United States, and Gi) any other governmental
(Cont'd)
APPENDIX D
federal question jurisdiction under 28 U.S.C. § 1331. The
ease was consolidated with Florida Wildlife Federation
vu. So. Florida Water Mgmt. Dist., Case No. 02-80918-
Civ (see Dec. 9, 2002 Order |D.E. 39]), and the latter
pase was accordingly closed. The Florida Wildlife
Federation (“FWE”) is a statewide non-profit
conservation and education organization with a mission
of preserving, managing, and improving the water
resources and fish and wildlife habitat of Florida. (Conep.
[D.E. 1 in 02-80918-Civ] at 3).
The City of South Bay, Florida, and United States
Sugar Corporation (“U.S. Sugar”) were granted
permission to intervene as Defendants in an order dated
October 2, 2002. [D.E. 23].2 In support of intervention,
(Cont'd)
instrumentality or agency to the extent permitted by
the eleventh amendment to the Constitution) who 1s
alleged to be in violation of (A) an effluent standard or
limitation under this chapter or (B) an order issued by
the Administrator or a State with respect to such a
standard or limitation, or
(2) against the Administrator where there 1s
alleged a failure of the Administrator to perform any
act or duty under this chapter which is not
discretionary with the Administrator.
The district courts shall have jurisdiction, ... to order
the Administrator to perform such act or duty, as the
case may be, and to apply any appropriate civil
penalties under section 1319(d) of this ttle.
2. The undersigned subsequently granted the City of South
Bay, Florida’s Motion to Withdraw. [D.E. 212].
S6a
APPENDIX D
U.S. Sugar asserted that it has substantial sugar cane
growing and harvesting operations in the S-2 and 8-3
drainage basins served by the pump stations at issue,
that it has property interests in the crops, that operation
of the pump stations prevents its crops from being
flooded and destroyed, that issuance of the requested
NPDES permits for previously unregulated structures
could cause U.S. Sugar to lose a statutory entitlement
for an agricultural exemption from NPDES permitting,
and that, in short, any decision requiring the SFWMD
to obtain a NPDES permit would be devastating for U.S.
Sugar’s operations. (See Mem. in Supp. of Mot. to
Intervene [D.E. 18] at 2-3).
The Miccosukee Tribe of Indians of Florida
(“Miccosukee”) was granted leave to intervene as a
Plaintiff in an order dated December 9, 2002. |D.E. 40].
In support of intervention, Miccosukee maintained that
backpumping of pollutant-laden waters by the SFWMD
into Lake Okeechobee threatened Miccosukee’s way of
life in the Everglades and Lake Okeechobee, and that
the destruction infringed on Miccosukee’s ability to
practice its religion and on its traditional bases of
subsistence, commercial activities, and natural
resources. (Mot. to Intervene |D.E. 24] at 4).
Much later, on May 2, 2005, the United States of
America, on behalf of the United States Army Corps of
Engineers (“Corps”) and the United States
kinvironmental Protection Agency (“IPA”), was granted
permission to intervene as a Defendant. [D.E. 263]. The
United States maintained it had a compelling interest
S7a
APPENDIX D
in the litigation because for decades the Corps had been
building a comprehensive network of levees, water
storage areas, pumps and canal improvements in South
Florida, and the S-2, S-3, and S-4 pump stations were
part of the Central and South Florida Project. As for
the EPA, that agency administers the NPDES
permitting program in conjunction with the states,
including Florida, that have assumed responsibility for
issuing permits within their borders under 33 U.S.C.
§ 1342. (See [D.E. 198] at 1-2).
On May 12, 2003, the case was reassigned to the
docket of the undersigned. [D.E. 77]. After the Supreme
Court accepted certiorari in yet another related case
styled So. Florida Water Mgmt. Dist. v. Miccosukee
Tribe of Indians, Case No. 98-6056-Civ (“S-9 Case”), all
proceedings were stayed by order dated July 1, 2003.
[D.E. 147]. On January 21, 2005, after the Supreme
Court entered its decision in the S-9 Case,’ the Court
granted the SFWMD’s Motion to Reopen the Case.
| D.E. 179].
The pleadings have been amended several times by
all parties since the inception of the litigation.
Miccosukee’s Second Amended Complaint, filed on
February 22, 2005, among other things, added as a
named Defendant Henry Dean, Executive Director of
the SFWMD, in his official capacity. [D.E. 188].
3. See So Flornda Water Mgmt Dist v. Miccosukee Tribe
of Indrans, 541 U.S. 95, 1248. Ct. 1537, 158 L. Ed. 2d 264 (2004).
S8a
APPENDIX D
Plaintiffs seek the following relief: (1) a judgment
declaring that the SFWMD (and its representatives) has
violated, and is in continuing violation of, the Clean Water
Act, 33 U.S.C. § 1251 et seg.; (2) an order enjoining the
SFWMD from continuing to violate the CWA;
(3) an injunction requiring the SFWMD (and its
representatives) to obtain a NPDES permit for its
backpumping activities at the S-2, S-3, and S-4 pump
stations; (4) an order requiring the SFWMD to provide
Plaintiffs with a copy of all reports it submits to the state
or federal government concerning the discharge of
water to Lake Okeechobee (the “Lake”);' and (5) an
award of attorney’s fees and costs. No affirmative relief
is sought against Intervenor-Defendants, U.S. Sugar.
An issue raised by the SFWMD consistently in its
pleadings is its defense of sovereign immunity.
The undersigned denied the parties’ cross-motions
for summary judgment in an order dated November 23,
2005 [D.E. 527], and the trial followed. During and after
the trial, the undersigned reviewed the evidence
admitted, and considered all applicable law and
arguments presented by counsel. The following findings
of fact and conclusions of law are therefore made
pursuant to the requirements of Rule 52 of the Federal
Rules of Civil Procedure.
4. FWF has not specifically requested the furnishing of
such reports.
59a
APPENDIX D
Il. FINDINGS OF FACT
A. Historical Description of Lake Okeechobee
and the Everglades
The landscape of South Florida today is markedly
different from that which existed prior to the extensive
settlement and development the area has experienced
since the late 19th century. The Court’s analysis begins
with a description of the area as it existed prior to
development efforts. The description focuses primarily
upon the southern portion of Lake Okeechobee and the
northern portion of the Everglades. Today this combined
area is known as the Everglades Agricultural Area
(“EAA”).
Lake Okeechobee has been referred to at various
times throughout recorded history as Laguna Del
Espiritu Santo (1763), Lak du St. Esprit (1780), Lake
Mayacoo (1835), and Lake O-Kee-Cho-Bee(1839, 1856).
(See Trial Tr. Feb. 14, 2006, 58:22-59:8, 60:17-20, 63:6-
18, 65:3-66:14). To the south of Lake Okeechobee (in the
area now known as the EAA and, further south, the
Evergiades) was an immense and vast wetland referred
to by Native Americans as “grassy water.” (See Joint
Pretrial Stip. [D.E. 536], Attach. 5B 9 6). The “grassy
water” area encompassed some three million acres. (See
ud.). Today, the Everglades is less than half of its pre-
drainage size. (See 2d., 48). Prior to extensive drainage
operations, Lake Okeechobee had higher water levels
60a
APPENDIX D
and extended further south and west than it does today.
(Id., 139).°
Maps, surveys, and accounts of the natural
conditions of the southern rim of the Lake describe a
sandy-bottomed lake with water grasses gi owing in the
shallows. (Plain. Ex. 60, p. 66; Plain. Ex. 57). The Lake
bed rose to a muck rim covered with custard apple trees,
(Trial Tr Jan. 9, 2006, 163:21-25, 165:10-24), followed
by a slow downward gradient to the south through the
Everglades. (Trial Tr. Jan. 9, 2006, 189:8-18). Short
tributary rivers flowed from the Lake’s southern
forested rim. (Plain. Ex. 60, pp. 69-73). Accounts survive
of parties navigating the tributary rivers extending
from the southern shore of the Lake. (See Trial Tr. Feb.
14, 2006, 68:21-69:5; Plain. E’x. 60).
Lake Okeechobee appear's as a dominant feature on
maps of Florida dating back at least 250 years. (Trial
Tr. Feb. 14, 2006, 58:22-25; see also Def Ex. 75, p. 6).
Beginning in the eighteenth century, there were various
attempts to map the area of South Florida. Although
many features of the maps changed over time as map-
making techniques and knowledge of the area improved,
the maps consistently showed two separate features —
a very large lake bordered on the south by a vast
5. The surface waters of the Lake historically encompassed
the area that today contains the Herbert Hoover Dike, which
presently surrounds the Lake, and the 8-2, S-3, and S-4 pump
stations, the stations at issue in this litigation. (See Joint
Pretrial Stip , Attach. 5B 11 35; Trial Tr Jan 9, 2006, 191:13-18,
211:12-20; Trial Tr Jan 18, 2006, 104.11-18).
6la
APPENDIX D
wetland. (See Trial Tr Jan. 9, 2006, 157:10-168:21; Trial
Tr. Feb 14, 2006, 58:12-66:11; Plain. Exvs. 16A, 16B, 220).
In other words, all recorded maps show some boundary
between Lake Okeechobee and the area currently known
as the EAA. (See id.).
The southern shoreline of the Lake was surveyed by
J. M. Kreamer in 1892 (Plain. Ex. 220), and by John W.
Newman in 1910. (Def Ex. 16D). It was officially surveyed
by the State of Florida from 1914-17 (the “F. C. Elliot
Survey”). (Plain. Ex. 55). The conclusions of the F-C. Elliot
Survey are referenced in a case that required the court to
determine the historical boundary between the Lake and
the marshlands to the south of the Lake. (See Plain Ex.
57). On a related note, an account written in the newspaper
New Orleans Democrat in 1870 references an exploring
party making camp on the southern shore of Lake
Okeechobee, further suggesting that the Lake, at least at
times, had a distinguishable southern shoreline. (Plain.
Ex. 60, p. 70).
Finally, photographs of the Lake Okeechobee shoreline
taken from the cupola of the Bolles Hotel in. April 1912
were entered into evidence.’ (Plain. Has. 16h 1, 162,
16E'3). These photographs depict a custard apple forest
along a dry southern shoreline. (See Trial Tr Jan. 9, 2006,
170:16-174:14; Plain. Has. 1621, 16H 2, 16K).
6 The Bolles Hotel was located on the southern shore of
Lake Okeechobee on the western bank of the Rita River.
(See Trial Tr. Jan 9, 2006, 167:24-169:12), Its location is shown
on the Newman Survey of 1910. (See Plain Ex 16D), It was
constructed by Richard Bolles, an early Everglades land
speculator. (Trial Tr Jan 9, 2006, 169:8-12)
62a
APPENDIX D
Notwithstanding these early maps, accounts and
photographs, the shoreline was not as well-defined as
Plaintiffs contend. Lieutenant J.C. Ives, for example,
described the Lake as covering nearly 1,200 square
miles, nearly double the current size of the Lake.
(See Def Ex. 206, p. 38). Moreover, he observed that
“(fJrom Cypress Point around toward the south and
south-west, the shore is much less clearly defined. The
Everglades form the general boundary, but no distinct
line marks the division between this region and the
surface of the lake; the southern portion of the latter
being much grown up with grass [sic].” (/d.).’ Similarly,
a report of the Board of Commissioners of the
Okeechobee Flood Control District noted that
historically “the south shore of the Lake was not clearly
defined being low, irregular and swampy.” (Def Hx. 213,
p. 12).
Moreover, there was evidence adduced at trial that
the 1912 Bolles Hotel photograph, the most convincing
evidence of a well-defined southern shoreline, was taken
during the annual dry season, when the Lake typically
contracts. (See Trial Tr. Feb. 10, 2006, 90:4-7). Additional
evidence suggests that the area was experiencing a
drought during the period in question. (See id., 90:8-12,
$1:7-10). Finally, the photographs were taken after 20
years of drainage operations and thus do not provide a
truly accurate depiction of the Lake and the EAA in
7. Ives’ memoir acknowledges that the short time in which
the map was compiled “precluded anything hke a thorough
investigation as to what is now known in the region in question.”
(Def Ex 206, p. 6).
63a
APPENDIX D
their natural states. (See id., 89:21-25; Trial Tr, Feb. 13,
2006, 17:20-23).
That the historical accounts of the southern
shoreline are inconsistent is not surprising. The size of
Lake Okeechobee varied significantly depending upon
meteorological conditions within its watershed.
(See Joint Pretrial Stip., Attach. 5B 138; Trial Tr Jan.
13, 2006, 52:18-23; Trial Tr. Jan. 18, 2006, 104:3-5; Trial
Tr. Jan. 19, 2006, 16:20-23; Def Ex. 206, pp. 6-7). The
characteristics of the Lake and the Everglades varied
seasonally, decadally and otherwise, through extreme
cycles of flooding and drought. (See Joint Pretrial Stip.,
Attach. 5B 91 38; Def Ex. 206, p. 7). Even today, Lake
Okeechobee periodically recedes within the boundary
established by the Herbert Hoover Dike (“Dike”), which
extends around the rim of the Lake. (See Joint Pretrial
Stip., Attach. 5B 140; Trial Tr. Feb. 14, 2006, 78:1-24).
The undersigned concludes that, historically,
observable distinctions existed between Lake
Okeechobee and the vast wetlands to the south of the
Lake. A contrary conclusion would fly in the face of the
evidence presented. However, the precise point or points
dividing the Lake’s surface waters from the wetlands
to the south varied drastically depending upon
numerous conditions, explaining, at least in part, the
inconsistent accounts of the area that have survived.
64a
APPENDIX D
B. Development of the Everglades
|. Harly Development
Beginning in the mid 1800s, the State of Florida
embarked upon legislative efforts to encourage
development of the Everglades ecosystem, focusing its
efforts on draining the area to increase its marketability
and habitability. (See Trial T'r. Jan. 13, 2006, 57:9-13;
Trial Tr. Feb. 8, 2006, 204:11-16). Land reclamation was
the single-minded purpose behind the efforts. (See Trial
Tr. Feb. 10, 2006, 94:17-95:4, 95:20-23).
To further the drainage activities, canals were
constructed connecting the Lake to the Gulf of Mexico,
(Jomt Pretrial Stip., Attach. 5B 910). The overarching
goal of the canal construction was to move water from
Lake Okeechobee to tidal waters. (See id.). The theory
was that if Lake Okeechobee could be drained, then the
Everglades would eventually dry out. (See Joint
Pretrial Stip., Attach. 5B 19.9, 10; Def Ex. 203, pp. 56,
65).
By 1912, construction had begun on three major
canals, the North New River, Hillsboro, and Miami
Canals. (See Joint Pretrial Stip., Attach. 5A 9 10). The
8. Two canals were constructed in the 1880s. One canal,
named the 3 Mile Canal, connected Lake Okeechobee to Lake
Hiekpochee. (Trial Tr Feb 14, 2006, 16:20-23). The other canal,
located in the area of the present Miami Canal, extended
approximately nine to ten miles into the Everglades from the
Lake. (/d , 16:24-17:1).
65a
APPENDIX D
canals were connected to the Atlantic Ocean by April
1917. (See Trial Tr. Jan. 18, 2006, 107:3-5). The purposes
of constructing the canals were to lower the elevation
of the Lake, drain the rich muck soils sou
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