Amicus Curiae Brief — Friends of the Everglades v. South Florida Water Management District

we

7 Supreme Coun, US

FILED

No. 10-196 SEP 10 2010

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

*

FRIENDS OF THE EVERGLADES; FLORIDA

WILDLIFE FEDERATION: AND FISHERMEN AGAINST

DESTRUCTION OF THE ENVIRONMENT,

Petitioners,

VS.

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT; CAROL WEHLE, EXECUTIVE

DIRECTOR; UNITED STATES; AND

UNITED STATES SUGAR CORPORATION,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

BRIEF OF AMICUS CURIAE SIERRA CLUB

IN SUPPORT OF PETITIONERS

FRIENDS OF THE EVERGLADES, ET AL.

¢

KENNETH B. WRIGHT, ESQUIRE

Counsel for Amicus Curiae

BLEDSOE JACOBSON SCHMIDT

WRIGHT LANG & WILKINSON

1301 Riverplace Blvd., Suite 1818

Jacksonville, FL 32207

Telephone: 904-398-1818

Facsimile. 904-398-7073

ken@jacobsonwright.com

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

pe RR eB) Ok gy ly. Ie i

SPRRO ses CIE PAU TEER k Bil kcnscevesckescecsessscscsesaresas il

STATEMENT OF INTEREST .....................0....... 1

SUMMARY OF ARGUMENT ............. Cap ere Pee ae 2

Pa IE Er ay sore ceed eee esas inaa ened evasiconyociwersesis 4

L. UMEFORUCTION .........000..5.55. Tieceas eens er inde as 4

II. EPA’s Unitary Waters Rule Is Not En-

titled to Chevron Deference........... rere 9

Ill. The EPA Rule Violates Separation of

Pr er I es ee civ acs tteleiees 12

Ee ae ibs vies hous dceunnaasevincasnsasavaeseeseS ee? ae

1

TABLE OF AUTHORITIES

Page

CASES

Catskill Mtns. Chapter of Trout Unlimited v.

City of New York, 451 F.3d 77 (2nd Cir. 2006) ......... 9

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

$b! | eee jaeasieastebereeaas ae 3, 9, 10, 11, 12

Friends of the Everglades, Inc. v. South Flor-

ida Water Management District, 2006 WL

DO DOES a.o..oc cvasnunsconsensesseusccnnwsseeelecee enna 5, 10

Friends of the Everglades, Inc. v. South Florida

Water Management District, 570 F.3d 1210

CDTi Civ, DOB) nisin si canstavssccceueesasnsenmeceteeuia cena 9

International Assn. of Machinists and <Aero-

space Workers, AFL-CIO v. National Media-

tion Board, 930 F.2d 45 (D.C. Cir. 1991)........0.00... 12

Loving v. United States, 517 U.S. 748 (1996)............ 13

Marbury v. Madison, 1 Cranch 137, 5 U.S. 137

(Be acces ud sinit'ahnssn Sic'maes Obiniassiepcsrcnnees pny eleeattte Nea aan 13

Northwest Environmental Advocates v. U.S.

EPA, 537 F.3d 1006 (9th Cir. 2008) ...... joupunpeeaene wane 6

People to Save the Sheyenne River v. North

Dakota Department of Health, 697 N.W.2d

PEP CEM APs BOD ssa ssccesviucccucuueccaneeseremia at aeeemaee 7,8

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995)

Rapanos v. U.S., 547 U.S. 715 (2006)..............3, 11, 12

TABLE OF AUTHORITIES — Continued

Sterra Club v. EPA. 311 F3d 853 (7th Cir

2002)

South Florida Water Management District v.

Miccosukee Tribe of Indians, 541 U.S.

(2004)

STATUTES AND REGULATIONS

33 U.S.C. § 1362

OTHER AUTHORITIES

Risk and Consequence Analysis Focused on

Biota Transfers Potentially Associated with

Surface Water Diversions between the Mis-

sourt River and Red River Basins, USGS,

July 2005, at section 6.1, http://www.usbr.

gov/gp/dkoa/biota_transfer’ ..

STATEMENT OF INTEREST

The Sierra Club is a non-profit environmental

organization whose mission is to explore, enjoy, and

protect the wild places of the earth; to practice and

promote the responsible use of the earth’s ecosystems

and resources; to educate and enlist humanity to

protect and restore the quality of the natural and

human environment; and to use all lawful means to

carry out these objectives. The Sierra Club has a long

history of involvement in, and expertise concerning,

the protection of our Nation’s waters and the imple-

mentation of the Clean Water Act. Through testimony

in Congress, comments and other advocacy in the

Executive Branch, and litigation in the courts, it

has pursued these interests repeatedly during the

three decades since enactment of the seminal! 1972

amendments that gave the Act its current structure.

The Sierra Club has over 1 million members, many of

whom use and rely on a wide array of waters

throughout our Nation for recreation, scientific study,

' Pursuant to Supreme Court rule 37 6, Amicus affirms that

no counsel for any party authored this brief either in whole or in

part. No person other than Amicus and its counsel made any

monetary contmbutions to its preparation for submission. Pur-

suant to Supreme Court rule 37.2(a) all parties have received

notice of the intent to file this brief at least 10-days prior to the

due date. Both the Petitioners and Respondents consented to

this filing; their letters of consent are being submitted with the

brief.

2

and protection of their health, safety, property, drink-

ing water, and food supply.

SUMMARY OF ARGUMENT

The decision on review holds that the Clean

Water Act does not protect even the most pristine

water bodies from being degraded by transfer of

highly polluted water from another navigable water

body. It is hard to imagine an “interpretation” more at

odds with the purpose of the Clean Water Act. The

potential adverse effects of the EPA’s rule and the

Eleventh Circuit’s decision below are substantial.

There will be no Clean Water Act protection for

transfers by which a myriad of pollutants might be

dumped into a clean and healthy water body. For

example, salt water might be pumped into fresh

water, sediment or pollutant laden waters could be

dumped into drinking water reservoirs or farm irri-

gation waters, and invasive and destructive species

might be transferred into waters not yet infested.

Requiring permits for transfers of water from one

navigable water body to another will not prevent

needed transfers from being made but will serve the

ends of the Clean Water Act by reducing the adverse

impacts that would otherwise go unmitigated. For

mort transfers there will be little in the way of addi-

tional expense or delay. Where transfers are unlikely

to cause any significant harm to the receiving water

body, permits will be processed quickly and with little

3

expense. More harmful proposed transfers will re-

ceive needed scrutiny to protect the receiving waters,

and the people, fish and wildlife which depend on the

quality of the recipient water body.

The EPA’s unitary waters rule is not entitled to

Chevron deference. An agency’s rule is only entitled to

deference where it is not contrary to clear Congres-

sional intent. The EPA’s unitary waters rule flies in

the face of the overriding purpose of the Clean Water

Act to restore and maintain the waters of the United

States. The rule leaves navigable water bodies wholly

unprotected against potentially devastating transfers

of pollutant laden water from another navigable

water.

Chevron deference has already been denied by

this Court to the Corps of Engineers on a virtually

identical argument in Rapanos v. U.S., 547 U.S. 715

(2006). This Court made it clear there that Congress’s

use of the plural “waters” in the Clean Water Act

precluded any argument that “navigable waters” was

a singular entity.

The EPA unitary waters rule and the Eleventh

Circuit’s deference accorded to it also violates separa-

tion of powers principles. The rule was not issued

until after the trial court decision was rendered and

was designed to change the outcome of the case.

What’s more, the EPA’s rule was issued following

several rulings by other federal courts which had

rejected the unitary waters interpretation of the

Clean Water Act. An administrative agency may not

alter the decision of the courts through a subsequent

interpretation of the law. Doing so is an invasion of

the courts’ exercise of judicial power. If the EPA

feels that the decision of these courts was incorrect or

that the result was undesirable, it is free to petition

Congress to change the law. It may not, however,

overrule an Article IIT court.

e

ARGUMENT

: Introduction

Review is sought of a decision which finds that

the Clean Water Act (“CWA”) does not protect even

the most pristine of our Nation’s water bodies from

being despoiled by introduction of highly polluted

water from another navigable water body. It is hard

to imagine a decision more at odds with the purposes

of the Clean Water Act.

The objective of the Clean Water Act was “to

restore and maintain the chemical, physical, and

biological integrity of the nation’s waters.” South

Florida Water Management District v. Miccosukee

Tribe of Indians, 541 U.S. 95, 102 (2004). The method

chosen by the legislature to protect our waters was to

prohibit discharges of pollutants without a permit

which could place limits on the type and quantity of

pollutants that could be released into the Nation’s

waters. Jd. The decision below finds that the CWA

places no limits whatsoever on artificial transfer of

highly polluted water from one distinct water body

D

to a separate and pristine water body. This ruling

significantly undercuts the goals of the CWA.

The potential adverse effects of this ruling are

huge and varied. For example, there would be no

limitation on transfer of salt water into fresh water,

sediment laden water could be dumped into drinking

water reservoirs, chemically polluted waters could be

dumped into farm irrigation waters and invasive

species could be transferred into waters not yet in-

fested. These scenarios are not far-fetched. As dis-

cussed briefly below, they are examples of issues that

have already arisen.

Not surprisingly, as demonstrated by the District

Court findings in the instant case, pollutants con-

tained in such transfers can have direct human

health impacts when the receiving water is also the

local drinking water source. Friends of the Euver-

glades, Inc. v. South Florida Water Management Dis-

trict, 2006 WL 3635465 at 18. In fact, as shown in the

instant case, following backpumping events, levels of

the carcinogen trihalomethane increased substan-

tially in the drinking water of the towns using Lake

Okeechobee for their drinking water supply — some-

times to levels 12 times higher than permitted by

water quality standards. [Trial Tr. January 12, 2006,

135:19-136-13].

Moreover, the nature of transfers between navi-

gable waters raises concerns that go beyond what is

traditionally thought of as pollution. This is because

such wholesale transfers of untreated waters raise

6

the specter of introduction of invasive species into the

receiving water body. For example, the United States

Geological Survey (“USGS”) concluded that: “Inter-

basin transfers of untreated waters implemented via

an open conveyance (e.g., canals) have a very high

likelihood of establishing pathways to potentially

promote biota transfers and subsequent biological

invasions.” Risk and Consequence Analysis Focused

on Biota Transfers Potentially Associated with Sur-

face Water Diversions between the Missouri River and

Red River Basins, USGS, July 2005, at section 6.1,

http://www.usbr.govw/gp/dkoa/biota_transfer/. While inva-

sive species are not traditionally thought of as “pollu-

tants” they are nonetheless regulated by the CWA.

Northwest Environmental Advocates v. U.S. EPA, 537

F.3d 1006, 1021 (9th Cir. 2008) (ordering repeal of a

30-year-old EPA regulation that categorically ex-

empted discharges of ballast water containing biolog-

ical pollutants such as zebra mussels from National

Pollutant Discharge Elimination System (“NPDES”)

permitting requirements). Notably, the USGS report

suggests that there are various measures that can be

taken to reduce the risk of opening pathways for

invasive species. These range from the obvious, like

treating the water, to the less obvious, such as chang-

ing the mode of conveyance of the water. See, Risk

and Consequence at section 6.6 (“Interbasin transfers

of treated water via a controlled and contained con-

veyance will present the lowest risks of biological

invasion. ...”). If no requirement for a CWA NPDES

permit exists, there will be no consideration of reason-

able methods to control or prevent the introduction of

potentially devastating invasive species to the receiv

ing water body.

A good example of the propriety of requiring an

NPDES permit for transfers of water from one dis

tinct water body to another is provided by the case of

People to Save the Sheyenne River v. North Dakota

Department of Health, 697 N.W.2d 319 (N.D. 2005).

Devils Lake, located in the Hudson Bay drainage

basin in North Dakota, had no natural outlet and was

not hydrologically connected to any other surface

waters in the Hudson Bay basin. Sheyenne, 697

N.W.2d at 323. As a result, the lake rose and fell

depending upon the amount of rainfall. Since 1993,

the Devils Lake area had received above normal

precipitation and the lake rose nearly 25 feet in

elevation, causing flooding and destruction or reloca-

tion of numerous homes, businesses, and roads near

Devils Lake. Jd. In response, Congress directed the

United States Army Corps of Engineers to design an

outfall system from Devils Lake to the Sheyenne

River. The Corps complied and proposed an outlet

from Devils Lake that would have resulted in a 300

ft. per second discharge into the Sheyenne River. /d

Because the transfer of water from Devils Lake to the

Sheyenne River is a transfer from one navigable

water body to another, under the EPA’s Unitary

Waters rule, no permit would be required. Fortunate

ly, no such rule existed at the time and the “unitary

waters” theory had been rejected by the courts.

Accordingly, a CWA NPDES permit was required.

Id. at 323-24. The result was that the residents of

the Devils Lake area obtained their permit and

relief from the flooding which they suffered. At the

same time, however, the harm to the Sheyenne was

minimized through the permitting process. For ex

ample, the amounts and the timing of the discharges

to the Sheyenne River were substantially limited as

compared to the Corps proposal. Compliance with

applicable water quality standards was also required,

as well as biological and ecological assessments of the

condition of the Sheyenne River. Additionally, moni

toring was required at various points on the river in

order to ensure that environmental harm was limited

as much as reasonably possible. /d. at 324. None of

this would have occurred under the Environmental

Protection Agency (“EPA”) unitary water rule. In

short, the NPDES permitting process worked to

protect the residents of the Devils Lake area from

flooding, and to protect the people, fish and wildlife

dependent on the Sheyenne River from the pollution

and ecological harm that would have befallen them

without the NPDES permit requirements. However,

should EPA’s unitary waters rule stand, the Shey

enne’s protections will be short lived. Upon expiration

of the current permit, there will no longer be any

restrictions on the quantity, timing, or quality of

the waters dumped into the Sheyenne River — and

the River and those dependent upon it will suffer

needlessly.

Moreover, it is incorrect to argue that requiring

permits for transfers between distinct water bodies

would unduly tax the resources of the regulators

or the regulated community. Permitting authoritie

process many thousands of permits as a matter ol

course The time, effort, and expense associated

with the review and issuance of permits depend

directly upon the degree to which harm is likely to be

caused by the transfer of water. Where waters of

the transferring and receiving bodies are of similar

quality, the review will be brief and may be accom

plished by general permits with little cost or delay

On the other hand, in the cases where serious issue:

of water quality degradation potential exist, the ad

ditional time and expense required to ensure that

environmental harm is reduced as much as reasona

bly practical, is appropriate to achieve the goals of the

CWA. As noted in Catskill Mtns. Chapter of Trout

Unlimited v. City of New York, 451 F.3d 77, 85-87

(2nd Cir. 2006), the NPDES process contains suffi

cient flexibility to assure that important inter-basin

transfers may be authorized pursuant to a NPDES

permit

Il. EPA’s Unitary Waters Rule Is Not Entitled

to Chevron Deference

The Eleventh Circuit reached its decision below

contrary to its predilections and the purposes of the

Clean Water Act, based on its belief that a newly

promulgated IPA rule required Chevron deference

Friends of the Everglades, Inc. v. South Florida Water

Management District, 570 F.3d 1210, 1218 (11th

Cir. 2009) (observing that all prior precedent rejected

the “unitary waters” theory underlying the new

regulation and stating that absent the regulation, the

court might have made it “unanimous”). The regula

Lion in question was the same as a pnor KPA “inter

pretation” argued in the trial court. Friends of th

Kverglades, Inc. v. South Florida Water Management

District, 2006 WIL 3635465, at 34 n. 51. (S.D. Fla

2006). The rule was not, however, enacted until after

the trial court had rendered its decision. /d. (Noting

that the rule was only “proposed” when the trial court

entered its judgment)

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

(1984), this Court held that deference must be a

corded an agency's interpretation of a statute it

administers unless the intent of Congress is clear o1

the interpretation 1s unreasonable. /d. at 842-43

liowever, this Court clarified that “ltlhe judiciary |

the final authority on issues of statutory construction

and must reject administrative constructions which

are contrary to clear conpressional intent.” Chevron

167 U.S. at 843 n. 9. It is beyond dispute that Con

gresss overriding intent in enacting the CWA was to

restore and maintain the Nation’s waters. It is simi

larly indisputable that the method it chose to effectu

ate that goal was to place limits on the amount and

quantity of pollutants that could be released to th

Nation's waters. Miccosukee Tribe of Indians, 5A)

U.S. at 102. Accordingly, EPA's new rule, which direct

ly undermines this Congressional intent to clean up

the Nation's waters, must be rejected by the court

The EPA's “unitary waters” theory is not sup

ported by the purpose o! the statute or if plain

1]

language. The underlying argument, that the United

States has only one “navigable water” under the

CWA, is foreclosed by this Court’s decision in

Rapanos v. U.S., 547 U.S. 715 (2006). In Rapanos,

this Court held that no Chevron deference was due to

a similar regulation of the Corps of Engineers. There,

as in the instant case, the Corps argued that the term

“navigable waters” was singular in order to expand

its reach to all waters in the United States. In

Rapanos, as in the instant case, the issue was wheth-

er the agency’s construction of the definition of “navi-

gable waters” as set forth in 33 U.S.C. § 1362(7) was

permissible and therefore required Chevron defer-

ence. The plurality opinion in the Rapanos case

concluded that the agency’s position was not even

arguable because the CWA did not define “navigable

waters” as “water of the United States.” This Court

went on to explain that:

[T]he waters of the United States” is some-

thing else. The use of the definite article

(“the”) and the plural number (“waters”)

shows plainly that §1362(7) does not refer to

water in general.

Rapanos, 547 U.S. at 732. While the argument of the

Corps in Rapanos was made in an effort to expand

the Corps’ jurisdiction, and the argument in the

instant case is made to contract the EPA’s juris-

diction, neither argument passes muster because the

analysis of the definition of navigable waters is the

same. Congress chose to use the plural “waters.

This is true whether one looks directly at the term

>?

12

“navigable waters” or at the definition of navigable

waters, 1.e., “The waters of the United States.” As ti-is

Court in Rapanos found, “waters” in the plural sense

consists of: “‘streams,’ ‘oceans,’ ‘rivers, ‘lakes,’ and

‘bodies’ of water ‘forming geographical features.”

Id. at 733. Consequently, as in Rapanos, no Chevron

deference can be accorded to the EPA’s rule here.

Ill. The EPA Rule Violates Separation of

Powers Principles

The Sierra Club also supports the granting of

certiorari on the separation of powers issue raised by

the Miccosukee Tribe. The EPA Unitary Waters rule

is nothing more than the product of this litigation.

The rule was not finally issued until after the briefs

were filed in the Eleventh Circuit and the EPA mere-

ly codified its previously rejected litigation position in

order to change the outcome of this case. It is well

known that litigation tends to harden the positions of

the parties. Jnternational Assn. of Machinists and

Aerospace Workers, AFL-CIO v. National Meditation

Board, 930 F.2d 45, 49 (D.C. Cir. 1991). For this

reason common sense dictates that a rule enacted to

support a litigation position is suspect in itself. How-

ever, when an agency's litigation position 1s not only

adopted to change the lower court result in the cur-

rent case, but also to overrule the law as established

by holdings of several federal courts, separation of

powers issues are clearly implicated. While the courts

may not intrude upon the rulemaking powers of the

delegated agencies, so too, such agencies may not

13

intrude on the judicial power to say what the law is.

Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177

(1803).

The separation of powers doctrine prohibits one

co-equal branch of the government from encroaching

on the powers of another branch. Loving v. United

States, 517 U.S. 748, 757 (1996). When an adminis-

trative agency steps in to alter the decision of the

court through interpretation of the law, it is invading

the province of the court to say what the law is.

Congress has not and cannot provide the EPA, or any

other executive agency, with the authority to exercise

judicial power. Plaut v. Spendthrift Farm, Inc., 514

U.S. 211, 218 (1995). Yet, that is the effect of the EPA

rule in this case. The courts have emphatically de-

termined that the unitary waters interpretation of

the CWA is erroneous. EPA seeks to overrule these

judicial determinations suwb-silentio through its rule.

It has not the power to do so.

If EPA feels that the decision of the courts are

incorrect or the result undesirable, it is free to peti-

tion Congress to change the law. Sierra Club v. EPA,

311 F.3d 853, 862 (7th Cir. 2002). It may not, howev-

er, invade the province of the judiciary in an effort to

obtain a result that it had failed to attain during the

course of litigation.

14

CONCLUSION

For the reasons set forth herein, the Sierra Club

requests that this Court grant the petition for certio-

rari sought by the petitioners.

Respectfully submitted,

KENNETH B. WRIGHT, ESQUIRE

Counsel for Amicus Curiae

BLEDSOE JACOBSON SCHMIDT

WRIGHT LANG & WILKINSON

1301 Riverplace Blvd.,

Suite 1818

Jacksonville, FL 32207

Telephone: 904-398-1818

Facsimile: 904-398-7073