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

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@ Supreme Count is

No. 10-196 FILED

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SEP I 0 2010

Sn The OFFICE OF THE (1 ERK

Supreme Court of the Anited States

FRIENDS OF THE EVERGLADES;

FLORIDA WILDLIFE FEDERATION; and

FISHERMEN AGAINST DESTRUCTION

OF THE ENVIRONMENT,

Petitioners,

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, CAROL WEHLE, Executive Director;

UNITED STATES OF AMERICA; and UNITED

STATES SUGAR CORPORATION,

Respondents.

— *

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF OF AMICI CURIAE

TOWN OF GRAND LAKE, COLORADO;

GREATER GRAND LAKE SHORELINE

ASSOCIATION; AND THREE LAKES

WATERSHED ASSOCIATION IN

SUPPORT OF PETITIONERS

@ cece

ELIZABETH H. 'TEMKIN

Ceunsel of Record

TEMKIN WIELGA & HARDT LLP

1900 Wazee Street, Suite 303

Denver, CO 80202

(303) 292-4922

temkin@twhlaw.com

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether transferring pollutants from one dis-

tinct body of water to another constitutes the addition

of pollutants to navigable waters, and therefore

requires a point source discharge permit under the

Clean Water Act, 33 U.S.C. §§ 1311(a); 1362(12) or

whether all waters of the United States may be

treated as a “unitary” whole, so that such transfers of

pollutants do not constitute an addition of pollutants

requiring a permit.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES ........

INTERESTS OF AMICI CURIAE ....

OR EDA PETED csc chacdescscscisnssarnansess

SUMMARY OF ARGUMENT ...........................08

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CONCLUSION

11]

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Oklahoma, 503 U.S. 91 (1992).........00.... 18

Dubois v. United States Dep't of Agriculture,

102 F.3d 1273 (ist Cir. 1006)...........c0.sccscese0s. ecase

Friends of the Everglades v. South Florida

Water Mgmt. Dist., 570 F.3d 1210 (11th Cir.

UNIT icntsstdu sipciauuadaadacenevaacadnidétgedceatapenibares 1,16, 18

Natural Resources Defense Council v. United

States Envt’l Prot’n Agency, 915 F.2d 1314

RII I cos cous sa cannceuesuetansbeacudapiaenanineanis 19

Northern Plains Resource Council v. Fidelity

Exploration & Devel. Co., 325 F.3d 1155 (9th

aa acer du gack a lemansumensixsemiioesticn ...16

South Florida Water Mgmt. Dist. v. Miccosukee

Tribe of Indians of Florida, 541 U.S. 95 (2004)....... 14

United States Envt'l Prot’n Agency v. Califor-

i ie a sg eds ea dkdoeuvans 18

United States v. Martin, 267 F.2d 764 (10th Cir.

| BERRA AR ES pierces Sib teehee AireN oh 0 56 ok 7

STATUTES

38 U.S.C. $ 1811(a) ............. diaiseckiadicesctecanasdusekeguedieas

Be eB itvnnsecncacdinsivecscavensnecdesssccc%incss 18

ee carac seu case uve benbanduehcedeieuseneaen 18

Bae. Toa Bb.) ). (: ) ine spurte dbicedeeaka fovtuccsuecnee

33 U.S.C. § 1362(12).......... Gis sebtankdeiadds in couaeciermatass tin

TABLE OF AUTHORITIES — Continued

Ce, Be Fee er ee I Re veccccvccesacuaxeuesabinesenemasensene

Cte Be TIRE. ere 8 BOD iis sccscinedescsdusnddcssncssiivickosueee

Colo. Rev. Stat. § 37-45-121................

OTHER AUTHORITIES

48 FLR. 51400

S. Doc. No. 75-80 (1937)

S. Rep. No. 92-414 (1971)............. intisietnaulpeiaanianaaeaanaes 19

Daniel Tyler, The Last Water Hole in the West:

the Colorado-Big Thompson Project and the

Northern Colorado Water Conservancy Dis-

trict (1992)

Davine M. Lieberman, Physical, Chemical and

Biological Attributes of Western and Eastern

Slope Reservoir (United States Bureau of

Reclamation, 2008)

James H. McCutchan, Jr., Factors Controlling

Transparency in Grand Lake, Colorado (July,

2010)

Report on Algae Control in the Grand Lake

Area, Technical Sub-Committee at 1 (June

28, 1954)

REGULATIONS

40 C.F.R. § 131.2

6 Colo. Code Neee..8 1008 -S8 ....cccscscsscesersvcscsessnaessonsess 10

TABLE OF AUTHORITIES — Continued

5 Colo. Code Regs. § 1002-23-33.44(Q)

5 Colo. Code Regs. §§ 1002-31 et seq

INTERESTS OF AMICI CURIAE

Amui Curiae submit this brief in support of the

petition for a writ of certiorari submitted by Friends

of the Everglades, Florida Wildlife Federation and

Fishermen Against Destruction of the Environment,

seeking reversal of the lower court’s decision in

Friends of the Everglades v. South Florida Water

Mgmt. Dist., 570 F.3d 1210 (11th Cir. 2010).’

Amici Curiae are entities in Grand County,

Colorado that are impacted by impaired water quality

in Colorado’s largest and deepest natural water body,

Grand Lake. Grand Lake its located high in the Colo-

rado Rockies, on the western slope of the Continental!

Divide, at the west entrance to Rocky Mountain

National Park. The lake sits at an elevation of 8,367

feet, and is fed by clear, pristine snowmelt and other

runoff from the snow-capped 12,000 to 14,000-foot

peaks of the Continental Divide, at the headwaters of

the Colorado River. The setting is beautiful and

picturesque. The lake was carved out of the surround

ing mountain landscape by glaciers and supports

Pursuant to Rule 37.6 of this Court, Amuci state that this

bref was authored in its entirety by counsel for Amici, and that

no person or entity other than Amici and their representatives

made any monetary contmbution to the preparation or submis-

sion of this brief All parties were timely notified of Amici

Curiae’s intention to file this brief All parties have consented,

and a copy of each consent letter has been submitted with this

brief

rainbow and brown trout, kokanee salmon, and

Mackinaw (lake trout) which can grow to over 30

pounds. The area is populated by elk, big horn sheep,

moose and a staggering array of other wildlife. In

addition to Rocky Mountain National Park, Grand

County includes, and is surrounded by, thousands of

acres of wilderness in the Indian Peaks and Never

Summer Wilderness areas, which contain some of the

nation’s highest peaks and most scenic wild lands

Well into the 20th century, Grand Lake’s waters

remained pristine. However, since the early 1950s,

the water quality of the lake has been seriously

impacted by seasonal water transfers into the lake

from a man-made reservoir via a narrow channel! that

connects the two. The lake is now polluted to the

point where its clarity is one-third of what it once

was. Both Grand Lake and the reservoir are waters of

the United States

Amicus Curiae, the Town of Grand Lake, Colora

do (the “Town”)

b J

is a municipality located on the north

shore of Grand Lake. Since its establishment in 1879,

the ‘Town has depended on the natural scenery and

recreational wealth of the lake and surrounding area

Today, the Town is a major local center of commerce

and a significant Colorado tourist destination. In the

summer months, the Town is the primary access

point for recreational users of Grand Lake, as well as

nearby Shadow Mountain Reservoir and Lake Gran-

by, and is one of two main gateways for the more than

three million visitors to Rocky Mountain National

Park each year. The lake is the lifeline of the Town's

cconomy

Amicus Curiae, the Greater Grand Lake Shore

line Association (“GGLSA”), is a non-profit corpora

tion whose members are primarily Grand Lake

property owners and other concerned Grand County

residents. GGLSA’s purpose is to preserve and protect

Grand Lake and its surroundings and to enhance the

water quality, fishery, boating safety, and the aesthet

ic values of Grand Lake. Since its formation in 2003,

GGLSA has made significant efforts to address Grand

Lake’s water quality problems. These activities have

included partnerships with other citizens’ groups and

Grand County to spearhead efforts to establish water

quality standards for the lake that will protect it:

designated uses

Amicus Curiae, the Three Lakes Watershed

Association, 1s an organization composed of home

owners and businesses on Grand Lake, Lake Granby

and Shadow Mountain Reservoir. The association,

which was formed in 1975, has worked for many

years to address water quality issues in Grand Coun

ty’s water bodies, including effects on water quality

from water transfers. It has partnered with GGLSA,

Grand County, the United States Bureau of Reclama

tion and other entities to study water quality in the

Northern Colorado River Watershed to develop solu

tions to water quality impairments resulting from

water transfers in the area

BACKGROUND

Water quality in Grand Lake has deteriorated

due to water transfers from Shadow Mountain Reser-

voir, an 18,400 acre foot water storage reservoir

constructed in the 1940s as a part of the largest

transbasin water diversion in the United States, the

Colorado-Big Thompson Project (the “C-BT”).’ The

C-BT project was spearheaded by the United States

Bureau of Reclamation and the State of Colorado as a

means to augment agricultural water supplies for

Colorado farmers on the eastern slope of the Conti-

nental Divide. S. Doc. No. 75-80 (1937). Congress

specifically intended that the C-BT project be operat-

ed in a manner which would preserve the unique

character of the community, and not impair Grand

Lake’s waters. Id. Its development and construction

were driven by a nationwide federal initiative during

the early decades of the twentieth century, to develop

and control the United State’s water resources. The

same initiative accounts for the Florida project at

issue in the case below.

On average, the C-BT diverts approximately

260,000 acre feet of water annually from the Colorado

River headwaters to the eastern slope of the

* For a general description and history of the Colorado-Big

Thompson Project, see Daniel Tyler, The Last Water Hole in the

West: the Colorado-Big Thompson Project and the Northern

Colorado Water Conservancy District (1992); see also, S. Doc. No.

75-80 (1937).

Continental Divide.” Water to supply these diversions

is captured from the Northern Colorado River Water-

shed and stored in three principal locations — Lake

Granby, Windy Gap Reservoir and Willow Creek

Reservoir. Lake Granby, the largest of these reser-

voirs, has a capacity of 539,000 acre feet and regular-

ly receives inflow from both the Willow Creek and

Windy Gap reservoirs. The C-BT project uses Shadow

Mountain Reservoir and Grand Lake to facilitate the

movement of these waters to the eastern slope. A

pumping plant on Lake Granby, the Farr Pumping

Station, lifts the water approximately 100 feet up to a

canal which feeds Shadow Mountain Reservoir. When

the Farr Pumping Station is activated, the normal

flow of the Colorado River headwaters is reversed.

Contrary to the natural flow from Grand Lake into

Shadow Mountain Reservoir, pumping forces water

from Shadow Mountain Reservoir into Grand Lake

via a narrow channel. Thus, both Shadow Mountain

Reservoir and Grand Lake serve as conduits for the

reverse flow of water from downstream elements of

the C-BT project.

At Grand Lake, water transferred from Shadow

Mountain Reservoir is drawn through an inlet below

the surface of the lake into the Alva B. Adams Tunnel,

where it is conveyed 13.1 miles beneath the Conti-

nental Divide. The water emerges on the eastern

* This is a volume of water totaling approximately 84 7

billion gallons

slope of the Rocky Mountains, southwest of Estes

Park, to be distributed through a series of tunnels,

reservoirs and natural streams to approximately

800,000 end users in northeastern and central Colo-

rado.* Today, this water irrigates almost 700,000

acres of land on Colorado’s eastern slope, and pro-

vides water to 30 eastern slope communities for

municipal and industrial use. When the project first

came on-line in the late 1940s, approximately three-

fourths of the water transferred to the eastern slope

was used for irrigation, and the remainder went to

municipal and industrial uses. Today, this proportion

is reversed.

C-BT water is also used to generate electric

power at six hydroelectric power plants. Some of this

power is used to operate the Farr Pumping Station,

and the remainder is sold at market. The first deliv-

ery of water through the Adams Tunnel occurred in

1947, and construction of the entire project was

completed in 1956. When Congress authorized con-

struction of the project in 1937, it determined that

the project “must be operated in such a manner as to

... preserve the fishing and recreation facilities and

the scenic attractions of Grand Lake, the Colorado

River and the Rocky Mountain National Park.” S.

* As discussed more fully below, C-BT facilities are operated

by the Northern Colorado Water Conservancy District

(““NCWCD”) The NCWCD maintains current data regarding the

project which are available at http://www.newcd.org/project

features/cbt_main asp

Doc. No. 75-80 at 3 (1937); see also, United States v.

Martin, 267 F.2d 764, 766 (10th Cir. 1959) (address-

ing the requirements to preserve Grand Lake set

forth in S. Doc. No. 75-80).

The C-BT water distribution facilities are operat-

ed by the Northern Colorado Water Conservancy

District (““NCWCD”). The NCWCD is a= quasi-

municipal corporation created in 1937 pursuant to

the Colorado Water Conservancy Act, Colo. Rev. Stat.

§ 37-45-101 et seg., in order to partner with the

Bureau of Reclamation to construct and operate the

C-BT project. The NCWCD is authorized to levy taxes

for the construction and maintenance of water diver-

sion and storage projects and the purchase of water

rights, and may contract with the United States, hold

property and exercise the power of eminent domain.

Colo. Rev. Stat. §§ 37-45-118; 121. C-BT distribution

facilities are owned by the NCWCD in some instanc-

es, and jointly by the NCWCD and the United States

in others. C-BT power facilities are owned by the

United States and administered by the Western Area

Power Administration, a sub-agency of the United

States Department of Energy.

The early part of Colorado’s irrigation season,

between late April and early July, corresponds with

periods of high runoff from snow melt in the Northern

Colorado River Watershed. During this period, flows

in the major streams which feed directly into Grand

Lake from the Park rise from 100-200 cubic feet per

second (“cfs”) in early May, to a peak flow of 400-500

cfs in early July.’ By late July, these flows typically

decline to less than 50 cfs. McCutchan at 4. Smaller

streams contributing directly to Grand Lake exhibit

similar flow patterns. The abundance of water be-

tween late April and early July allows for the majori-

ty of eastern slope demands for C-BT water to be met

with native Grand Lake water. By late July, addition-

al water must be pumped from Lake Granby up to

Shadow Mountain Reservoir, where it is transferred

upstream into Grand Lake via the narrow connecting

channel in order to meet demand for Adams Tunnel

diversions without lowering the level of Grand Lake.°

It is this forced water transfer, from Shadow

* Specific hydrologic and water quality data are primarily

from two sources (1) James H. McCutchan, Jr., Factors Control-

ling Transparency in Grand Lake, Colorado (July, 2010) (herein-

after, “McCutchan”), an unpublished assessment prepared by

Grand County, Colorado 1n cooperation with the Colorado River

Water Conservation District, the Northern Colorado Water

Conservancy District, the United States Bureau of Reclamation,

and Amici, the Greater Grand Lake Shoreline Association and

Three Lakes Watershed Association, and (2) Davine M. Lieber-

man, Physical, Chemical and Biological Attributes of Western

and Eastern Slope Reservoir, Lake and Flowing Water Sites on

the C-BT Project, 2005-2007: Lake Granby, Grand Lake, Shadow

Mountain Reservoir, Horsetooth Reservoir, and Carter Lake

(United States Bureau of Reclamation, 2008) (hereinafter,

“Lieberman”). Other data are from the United States Geological

Survey, and are available online at http.//waterdata usgs.gov/

co/nwis/.

* As set forth in S. Doc No. 75-80, the C-BT system must be

operated in a manner which does not allow the elevation of

Grand Lake to fluctuate more than one foot Id at 1

Mountain Reservoir to Grand Lake, which makes this

Court’s resolution of the Question Presented vital to

Amici Curiae.

Grand Lake and Shadow Mountain Reservoir are

very different water bodies. Shadow Mountain Reser-

voir has a maximum depth of 24 feet, compared with

Grand Lake’s depth of 265 feet. Shadow Mountain

Reservoir’s water is much warmer than Grand Lake’s

water. The variation in temperatures was illustrated

dramatically in June 2010. On June 28, seasonal

transfers from Shadow Mountain Reservoir to Grand

Lake ramped up, replacing the cooler Grand Lake

waters that flowed downstream from the lake

through the channel to Shadow Mountain Reservoir,

with the warmer waters now being pumped back

upstream from Shadow Mountain Reservoir. The

water temperature in the connecting channel, which

was measured at 52.3 degrees Fahrenheit that morn-

ing, rose to 62.6 degrees Fahrenheit over the course of

a single day.’ This movement of warmer waters into

Grand Lake begins each year when the Farr Pumping

Station is activated, and continues until pumping

stops in the fall.

With its warmer temperatures, Shadow Moun-

tain Reservoir experiences seasonal algal blooms

and excessive growth of aquatic vegetation. Shadow

" The data discussed above for June 28, 2010 are available

from the United States Geological Survey at http://waterdata

usgs.gov/co/nwis/

Mountain Reservoir also experiences increased

sedimentation, increased concentrations of nitrogen

and phosphorous, and low concentrations of dissolved

oxygen, which have consistently remained below

State-established standards since 2002. Colorado has

classified Shadow Mountain Reservoir as an jmpaired

water body pursuant to Section 303(d) of the Clean

Water Act, 33 U.S.C. § 1313(d), due to its low concen-

trations of dissolved oxygen. 5 Colo. Code Regs.

§ 1002-93.

The seasonal pumped transfer of water from

Shadow Mountain Reservoir into Grand Lake seri-

ously impacts the lake. These impacts started soon

after completion of the reservoir and the first water

transfers. In a jointly-prepared report in 1954, the

Colorado Game and Fish Commission and the United

States Bureau of Reclamation recognized that “[t]he

natural biological conditions existing in Grand Lake

prior to the construction of the Colorado-Big Thomp-

son Project have changed. The construction and

operation of the western slope features of the Project

have drastically altered the biological population of

the Lake.” Report on Algae Control in the Grand Lake

Area, Technical Sub-Committee at 1 (June 28, 1954).

The changes in Grand Lake water quality are docu-

mented to correlate with summer water transfers

from Shadow Mountain Reservoir. The pumped

introduction of Shadow Mountain Reservoir water

into Grand Lake results in increased algae, chloro-

phyll and dissolved solids concentrations, as reflected

by, for example, the specific conductance of the wa-

x . ‘ o ,

ters. Lieberman at 165-66. Specific conductance in

Grand Lake increases toward the end of the summer,

reflecting the introduction of higher conductance

waters from Shadow Mountain Reservoir. McCutchan

at 10-11.

In late 1941, pnor to any transfer from Shadow

Mountain Reservoir to Grand Lake, water clarity in

the lake was measured at 9.2 meters,’ Lieberman at

168; McCutchan at 18, placing Grand Lake in the top

2% of all lakes in the United States for clarity." More

recent measurements document drastically reduced

clarity, corresponding most directly with late summer

water transfers. Clarity measurements by the United

States Geological Survey between 2000 and 2010

exhibited a mean Secchi depth of 3.2 meters during

the spring and summer seasons. McCutchan at 19.

Data which excludes measurements from early spring

and summer, prior to the initiation of pumping,

* Specific conductance is a measure of electrical conductivi-

ty. Water with higher conductance values generally has higher

concentrations of total dissolved solids and other particulates.

Other pollutants are introduced into Grand Lake which are not

directly reflected in the data for specific conductance.

* Water clarity is typically measured through the use of a

“Secchi disk,” a circular disk bearing a high-contrast pattern

that 1s attached to a line or pole and then lowered into the water

body. The depth at which the disc can no longer be seen is

termed the “Secchi depth.”

' Data is from the North American Lake Management

Society (NALMS), and is available at http://dipin.kent edu/

view htm

reflect even lower Secchi depths. Jd. In order to

evaluate potential clarity improvements which might

be achieved by reduced pumping, the Farr Pumping

Station was shut down between August 13 and 26,

2009. Water quality data collected by the Grand

County Water Information Network (“GCWIN”), a

volunteer, non-profit corporation that collects and

maintains water quality data for water bodies

throughout Grand County, show Secchi depths during

this period reflecting an improvement in water clarity

of approximately 30%." See also, McCutchan at 19.

The water transfers also cause nutrient loading.

Lieberman at 170. Nutrients primarily consist of

nitrogen and phosphorous. Ja. The continuous supply

of nutrient rich waters likely contributes to the large

algal blooms in Grand Lake that now routinely occur

during August and September, when pumping opera-

tions are underway. See id. at 170, 183. In 2007, the

Grand County Public Health Nursing Service and

Grand County Board of Health issued a Water Advi-

sory warning that levels of microcyst toxin (a toxin

produced by algal blooms) exceeded safe guidelines

established by the World Health Organization in both

Grand Lake and Shadow Mountain Reservoir. Resi-

dents and recreational users were advised not to

swim in or bathe with the waters, or to consume

water from either water body. Correspondingly,

'" GCWIN data may be accessed at http://co.grand.co us/

GCWIN/database htm!

clarity reached a low of 1.37 meters on August 12,

2007, during this same time period. In contrast,

nearby Columbine Lake receives natural, high-

quality inflows similar to the natural inflows to

Grand Lake. Columbine Lake is not a part of the C-

BT system, and receives no waters from Shadow

Mountain Reservoir. GCWIN data collected in August

of 2010 show Secchi depths in Columbine Lake which

range between 6.0 and 7.0 meters.

The transfer of water from Shadow Mountain

Reservoir into Grand Lake would not occur but for

the operation of the Farr Pumping Station, which

reverses the natural water flow. Prior to construction

of the C-BT, the area now beneath Shadow Mountain

Reservoir was a hay field and wetland meadow. The

Colorado River exited Grand Lake in the area which

now serves as the channel between Shadow Mountain

Reservoir and the lake, and flowed downstream,

through the meadow to its convergence with the

river’s North Fork, and ultimately westward.

SUMMARY OF ARGUMENT

The gaping regulatory hole left by the Eleventh

Circuit presents an issue of national significance

warranting review by this Court. The Eleventh

Circuit’s construction of the Clean Water Act immun-

ized an entire, significant class of discharges from

regulation under the NPDES program in the absence

of any evidence that Congress intended this outcome.

Under the Clean Water Act, even where permitted

discharges comply with the technology based stan

dards established under the NPDES program, per

mitted discharges must meet more _ stringent

requirements if the water quality objectives of the

specific water body are not achieved. The Eleventh

Circuit’s decision would eliminate this critical regula

tory tool, which is essential to Grand Lake’s future

ARGUMENT

Certiorari is warranted in this case because the

Eleventh Circuit has opened a vast hole in this coun-

trys most significant scheme for controlling water

pollution and maintaining the quality of individual

water bodies. The Grand Lake/Shadow Mountain

Reservoir example illustrates how and why the Elev

enth Circuit’s interpretation of the Act is untenable.

The importance of the issue for Colorado and the rest

of the United States is difficult to overstate. Currently,

the EPA has delegated to 45 States the authority to

administer the NPDES permitting program. Many of

those States have objected to the “unitary waters”

2 “f °

theory. “ In Colorado, use classifications and numeric

” As Amici do here, several States argued, as Amici in

South Florida Water Mgmt. Dist. v Miccosukee Tribe of Indians

of Florida, 541 U.S 95 (2004), that the unitary waters theory

cannot be reconciled with the Act’s NPDES permitting re

quirements. See Brief of the States of New York, Connecticut,

Illinois, Kentucky, Maine, Massachusetts, Michigan, Missouri,

(Continued on following page)

water quality standards designed to ensure that

designated uses are achieved have been developed for

specific water bodies or stream segments in seven

separate basins across the State. 5 Colo. Code Regs

§§ 1002-31 et seg. Specific basins and rivers include

the Colorado River and its tributaries, the San Juan

and Dolores, as well the Arkansas, the Platte and the

Rio Grande, among others. Many of these rivers flow

across State boundaries

Water transfers across basins to meet agricul

tural and municipal demand are common in Colorado

Forty-nine major transbasin diversions in Colorado

provide at least a portion of the municipal water

supply for sixty percent of Coloradans. Including the

C-BT project (which accounts for nearly half of Colo

rado transbasin diversions by annual volume), these

diversions transfer an average of 550,000 acre feet of

water per year. More than fifty percent of Colorado’s

irrigated farmland relies on transbasin water. Signif

icant transbasin diversions occur in other western

States, including Utah and New Mexico. Other Cir-

cuits which have addressed point-source transfers

from relatively low-quality waters of the United

States to more pristine waters of the United States

have required NPDES permits, recognizing that to do

otherwise is contrary to the text and intent of the Act

New Jersey, North Carolina, Oklahoma, Vermont and Washing

ton as Amici Curiae in Support of Respondents, 2003 WL

22'/66718

See Northern Platns Resource Council v. Fidelity

Exploration & Devel. Co., 325 F.3d 1155, 1162 (9th

Cir.), cert. dented, 540 U.S. 967 (2003); Dubois 1

United States Dept of Agriculture 102 F.: 12/3

1296-99 (1st Cir. 1996). There is, however, no control!

ling precedent in the Tenth Circuit, which has yet t

address the question

In the case below, the Kleventh Circuit recog

nized that “[Sjtate water quality standards, which

are specific to individual water bodies, are inter

twined with the NPDES permitting process.” Friend

of the Everglades, 570 F.3d at 1226. The court

acknowledged the possibility that, under the unitary

waters theory, no permit would be required to pump

“the most loathsome navigable water in the country

into the most pristine one,” but ultimately dismissed

these concerns as “horrible hypotheticals,” stating

that its task was to apply the statute, not to effectu

ate whatever purpose Congress may have had in

enacting the legislation. Jd. While this prospect |

indeed horrible, it is not hypothetical

Colorado’s NPDES permitting authority, the

Colorado Water Quality Control Commission (““WQCC”),

has established water quality standards for the

Upper Colorado River Basin which recognize the

unique significance of Grand Lake. In 2008, for

example, the WQCC established narrative and

numerical clarity standards for the lake, explaining

“it is appropriate to adopt water quality standard:

for the protection of Grand Lake's clarity because

of Grand Lake’s uniqueness as Colorado's largest

natural lake. Grand Lake adjoins and compliment

Rocky Mountain National Park in the headwaters of

the Colorado River and its social and economic im

portance is worthy of protection.” 5 Colo. Code Reg:

§ 1002-23-33.44(Q). This is the first time that

clarity standard has been adopted in Colorado. /d

There are two point-source discharges to the

lake. The first is from the Town’s municipal storm

water system, which passes stormwater! through a

high-efficiency filtration system prior to its discharge

Because the Town's population is so small, no di:

charge permit is required for the stormwater system

Nevertheless, the ‘Town has voluntarily chosen to

filler its water discharges, at great financial cost,

because the water quality of Grand Lake is so im

portant to the community. The second point-source

discharge to the lake is the water transfer from

Shadow Mountain Reservoir. This transfer is, by far

the most significant factor affecting the water quality

of the lake. Yet under the Eleventh Circuit’s construc

tion of the Act, the WQCC cannot regulate this tran:

fer because it merely transports effluent from one

water of the United States to another. The WQCC

(and citizens who may wish to enforce the Act under

its citizen suit provisions) thus has no practical way

to insure that the water quality standards for Grand

Lake are met. As a result there is no mechanism to

achieve the clarity standards for the lake. Moreover

if the effluent funneled from Shadow Mountain

Reservoir to Grand Lake is excluded from the NPDES

program, there is no practical way to control the

discharge of phosphates, nitrogen, toxic algae, chloro-

phyll, dissolved solids, sediment and heat, all of

which are flushed from Shadow Mountain Reservoir

into Grand Lake when pumping begins each summer.

An interpretation of the Act which leaves such a

breach in the regulatory scheme cannot be reasona-

ble. The NPDES’ program is Congress’ chosen mecha-

nism to ensure that location-specific water quality

standards are achieved. The Act established, as a

touchstone, the preservation of the water quality in

individual water bodies, including specific portions of

the same water body. 33 U.S.C. § 1312(a); see also, 40

C.F.R. § 131.2 (“A water quality standard defines the

water quality goals of a water body, or portion thereof,

by designating the use or uses to be made of the

water and by setting criteria necessary to protect the

uses.”) (emphasis added). Thus, location-specific

water quality standards are more than simply “inter-

twined with the NPDES’ permitting process,” Friends

of the Everglades, 570 F.3d at 1226; their achieve-

ment and maintenance are one of its central objec-

tives. 33 U.S.C. § 1311(b)(1)(C); see also, Arkansas v.

Oklahoma, 503 U.S. 91, 105-06 (1992).

NPDES permit limits are the key mechanism to

ensure that the standards for individual water bodies

are achieved and maintained. As this Court has

previously noted, NPDES permits serve “to transform

generally applicable effluent limitations and other

standards including those based on water quality into

the obligations (including a timetable for compliance)

of the individual discharger ...” United States Envt'l

Prot’n Agency v. California, 426 U.S. 200, 206 (1976)

(emphasis added). As the Ninth Circuit has ex-

plained, “Congress recognized that even if all the

firms discharging pollutants into a certain stream

segment were using the best available technology, the

stream still might not be clean enough to meet the

water quality standards set by the States. To deal

with this problem, Congress supplemented the ‘tech-

nology-based’ limitations with ‘water-quality-based’

limitations.” Natural Resources Defense Council v.

United States Envtl Prot’n Agency, 915 F.2d 1314,

1316-17 (9th Cir. 1990).

There is no evidence that Congress intended the

NPDES permitting program to be anything but

location-specific. As the Senate Committee on Public

Works explained in its 1971 discussion of section 301

of the new legislation, “the [EPA] Administrator is

under a specific obligation to require that level of

effluent control which is needed to implement exist-

ing water quality standards.” S. Rep. No. 92-414 at 42

(1971), as reprinted in 1972 U.S.C.C.A.N. 3668, 3710.

Describing Section 302, the Committee emphasized

that “limitations necessary to achieve a given level of

water quality in one reach of a waterway may require

more control of effluents than that attainable through

application of the best available technology ... Sec-

tion 302 provides the authority to impose controls

based on water quality.” Jd. at 45; 1972 U.S.C.C.A.N.

3712-13."

ee,

CONCLUSION

The Court should grant certiorari. The Elev-

enth Circuit has opened a gap of national propor-

tions in the primary enforcement mechanism of the

Nation’s most important water pollution prevention

statute. In the case of water transfers between two

waters of the United States, where the transfer of

that water results in dramatically reduced water

quality which is below applicable standards, the

Eleventh Circuit would foreclose recourse to the

Act’s primary regulatory and enforcement mechanism.

‘ EPA has also recogmzed these obhgations and authori-

ties See, e.g., United States Environmental Protection Agency,

Water Quality Standards Regulation, 48 FR 51400 (Final Rule,

Nov. 8, 1983) (“EPA accepted the recommendations for including

regulatory language explicitly affirming EPA’s commitments to

have [water quality] standards move toward Section 101(a\2)

goals of the Act and to use [water quality] standards as a basis

of restoring and maintaining the integrity of the Nation’s

waters” .. [water quality standards are] “the regulatory basis

for the establishment of water quality based treatment controls.”)

(emphasis added).

This result squarely contradicts the provisions of

the Act and Congressional intent, and presents a

devastating prospect for water bodies like Grand

Lake.

Respectfully submitted,

ELIZABETH H. TEMKIN

Counsel of Record