Petition for Writ of Certiorari — Friends of the Everglades v. South Florida Water Management District

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Supreme Court, U.S.

ert en

No. 10- 10-25? AUG 19 2010

In THFFICE OF THE CLERK

Supreme Court of the United States

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,

Petitioner,

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

CAROL WEHLE, EXECUTIVE DIRECTOR

UNITED STATES OF AMERICA

U.S. SuGAR CorRPORATION,

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

SONIA Escosio O’DONNELL

Counsel of Record

JAMES EDWIN KIRTLEY, JR.

LarA O’DONNELL GRILLO

JORDEN BurT LLP

777 Brickell Avenue

Suite 500

Miami, Florida 33131

(305) 371-2600

SEO@jordenusa.com

Attorneys for Petitioner

231393 ce

COUNSEL PRESS

(800) 274-3321 © (800) 359-6859

QUESTIONS PRESENTED

The Clean Water Act (“CWA”) unambiguously

prohibits the “addition” of any pollutants to “navigable

waters” without a National Pollutant Discharge

Elimination System (“NPDES”) permit. The “unitary

waters” theory - discussed and questioned by this Court

in South Florida Water Management District v.

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

(“Moiccosukee”) — posits that all of the “navigable waters”

of the United States constitute a single body such that

the transfer of water from any one body of “navigable

waters” to any other could never be an “addition” within

the meaning of the statute. The Environmental

Protection Agency (“EPA”) Regulation at issue in this

case adopts the “unitary waters” theory.

The question presented is whether the Eleventh

Circuit’s decision according deference to the EPA’s

“unitary waters” theory Regulation is contrary to the

CWA’s unambiguous language, which, as this Court

suggested in Miccosukee, prohibits the transfer or

discharge of a pollutant from one meaningfully distinct

body of water to another without a NPDES permit; and

whether the court of appeals’ decision violates the

separation of powers doctrine by effectively allowing the

manipulation of a federal lawsuit by an agency of the

Executive Branch.

PARTIES

Petitioner (Intervenor-Plaintiff Below):

The Miccosukee Tribe of Indians of Florida is the

petitioner here. The Friends of the Everglades; Florida

Wildlife Federation; and Fishermen Against Destruction

of the Environment, all of which were plaintiffs below,

have also submitted a separate petition for certiorari in

this matter.'

Respondents (Defendants Below):

The South Florida Water Management District; its

Executive Director, Carol Wehie, in her official capacity;

the United States Sugar Corporation; and the United

States of America are the respondents. The South

Florida Water Management District and Ms. Wehle were

defendants before the district court. United States

Sugar and the federal government were intervenor-

defendants below.

CORPORATE DISCLOSURE STATEMENT

The Miceosukee Tribe of Indians of Florida has no

parent corporation, and no publicly held company owns

ten percent or more of its stock.

1. The Friends of the Everglades et al. submitted their

separate petition to the Court on August 5, 2010. Justice Thomas

granted the Miccosukee Tribe of Indians of Florida an extension

of time, until August 19, 2010, to submit this petition for

certiorari.

TABLE OF CONTENTS

QUESTIONS PRESENTED

ear ns waren Gta ws aaa ee nee a

CORPORATE DISCLOSURE STATEMENT

TABLE OF CONTENTS

TABLE OF APPENDICES

TABLE OF AUTHORITIES .

OPINIONS BELOW

STATEMENT OF JURISDICTION

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION ..

I. Certiorari Should Be Granted Because

The Eleventh Circuit’s Decision, Which Is

Contrary To The CWA’s Unambiguous

Permit Requirements, Is Inconsistent

With This Court’s Decision In

Miccosukee Requiring Permits, As Well

As With The Decisions Of Other Circuits

Regarding The “Unitary Waters” Theory

Contents

Certiorari Should Be Granted Because

The Eleventh Circuit Accorded Deference

To The EPA’s Regulation Contrary To

This Court’s Decisions

A. The EPA’s interpretation is not

entitled to deference because the

CWA is unambiguous

The EPA’s interpretation is not

entitled to deference because the

theory underlying it has been

unanimously rejected by the courts

The EPA’s interpretation is not

entitled to deference because it is

merely a losing litigation position that

was subsequently codified in the

course of this case

. Certiorari Should Be Granted To Decide

The Important Question Of Whether The

Eleventh Circuit’s Deference To The

EPA's Regulation Violates Separation Of

Powers Principles

CONCLUSION

TABLE OF APPENDICES

Appendix A — Opinion Of The United States

Court Of Appeals For The Eleventh Circuit,

Dated And Filed June 4, 2009 ..............

Appendix B — Final Judgment Of The United

States District Court For The Southern

District Of Florida, Dated June 14, 2007 And

Filed June 15, 2007

Appendix C — Order On Remedies Of The

United States District Court For The

Southern District Of Florida, Dated June 14,

2007 And Filed June 15, 2007

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

Appendix Ek — Order Of The United States

Court Of Appeals For The Eleventh Circuit,

Dated And Filed May 7, 2010, Denying The

Petition For Rehearing En Banc ........... 208a

Appendix F — Relevant Statutes ............. 205a

Appendix G — Relevant Regulation .......... 213a

TABLE OF AUTHORITIES

( "A S I Dy S

Alaska Department of Environmental

Conservation v. E.PA.,

940 U.S. 461 (2004)

Auer v. Robbins,

519 U.S. 452 (1997)

Barnhart v. Sigmon Coal Co.,

534 U.S. 488 (2002)

Barnhart v. Walton,

535 U.S. 212 (2002)

Bowen v. Georgetown University Hospital,

488 U.S. 204 (1988)

Case of Hayburn,

2 U.S. 408 (1792)

Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of New York,

273 F.3d 481 (2d Cir. 2001) MSsim

Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of New York,

451 F.3d 77 (2d Cir. 2006)

Catskill Mountains Chapter of Trout

Unlimited, Inc. v. B.PA..,

630 F. Supp. 2d 295 (S.D.N.Y. 2009)

Authorities

Chevron U.S.A. Inc. v. Natural Resource

Defense Council, Inc.,

467 U.S. 837 (1984)

Chicago & Southern Air Lines, Inc. v.

Waterman S. S. Corp.,

333 U.S. 103 (1948)

Chock Full O’Nuts Corp. v. United States,

453 F.2d 300 (2d Cir. 1971)

Clark v. United States,

2007 WL 2142652

(Fed. Cl. Ct. July 17, 2007)

Dubois v. United States Department

of Agriculture,

102 F.3d 1273 (1st Cir. 1996)

Federal Express Corp. v. Holowecki,

552 U.S. 389 (2008)

French v. Miller,

530 U.S. 327 (2000)

Friends of the Everglades v. E.PA..,

No. 08-13652-C (11th Cir.)

Friends of the Everglades v. South Florida

Water Management District,

570 F.3d 121 (11th Cir. 2009)

Vill

{uthorities

Page

Friends of the Everglades v. South Florida

Water Management District,

605 F.3d 962 (11th Cir. 2010) . - 7

Friends of the Everglades, Inc. v. South

Florida Water Management District,

2006 WL 3635465 (S.D. Fla. Dec. 11, 2006) PASsim

Gutierrez de Martinez v. Lamagno,

515 U.S. 417 (1995) .......... : , 30

Indiana Michigan Power Co. v.

Department of Energy,

88 F.3d 1272 (D.C. Cir. 1996) ... 14

In re Swanson,

540 F.3d 1868 (Fed. Cir. 2008) | 31]

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ...... i hae 18

Koshland v. Helvering,

298 U.S. 441 (1986) .......... | 13

Loving v. United States

517 U.S. 748 (1996) .... 28

Ma v. Ashcroft,

361 F.3d 5538 (9th Cir. 2004) 24

{uthorities

Morrison v. National Australia Bank Ltd..

130 S. Ct. 2869 (2010)

Mova Pharmaceutical Corp. v. Shalala,

140 F.3d 1060 (D.C. Cir. 1998)

National Cable & Telecommunications

Association v. Brand X Internet Services.

545 U.S. 967 (2005)

N.L.R.B. v. United Food & Commercial

Workers Union, Local 23, AFL-CI/O,

484 U.S. 112 (1987)

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995)

Rapanos v. United States,

547 U.S. 715 (2006)

Robertson v. Seattle Audubon Society,

503 U.S. 429 (1992)

Smiley v. Citibank (South Dakota), N.A..,

517 U.S. 735 (1996)

Smith v. Scott,

223 F:3d 1191 (10th Cir. 2000)

futhos ities

Pave

South Florida Water Management Listrict 1

Miccosukee Tribe of Indians,

541 U.S. 95 (2004) .. passim

Town of Deerfield, New York v. F-C.C.,

992 F:2d 420 (2d Cir. 19938) 32

i/nited States v. Klein,

80 U.S. 128 (1871) . 28, 29, 30, 31

United States v. Mead Corp.,

5338 U.S. 218 (2001) 24

l/nited States v. Morton.

167 U.S. 822 (1984) 26

l/nited States v. Padelford,

76 U.S. 531 (1869) 29

l/nited States v. Sioux Nation of Indian

448 U.S. 371 (1980) a 28-29

Volkswagenwerk Aktiengesellschaft

Kederal Marine Commission.

390 U.S. 261 (1968) ;

futhoriti

STATUTES AND RULES

Statutes

28 U.S.C

eed

33 U.S.C » 125)

—

33 U.S.C. § 1365

Rules and Regulations

10 Ck R 122.3

40 CFR 122.45

71 Ked. Reg. 32889

71 Fed. Reg. 3289]

73 Ked. Reg. 33697

]

Petitioner Miccosukee Tribe of Indians of Florida

respectfully requests that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Eleventh Circuit, which afforded

deference to an absurd administrative interpretation of

the CWA on the basis of an EPA Regulation that was

adopted for the purpose of overruling the district court’s

decision, and which is contrary to the plain and

unambiguous language of the statute and in violation of

the separation of powers doctrine.

OPINIONS BELOW

The Eleventh Circuit issued an opinion in this case,

as well as an order denying en banc consideration. The

opinion and final judgment of the court of appeals is

styled, Friends of the Everglades v. South Florida

Water Management District, 570 F3d 1210 (11th Cir.

2009) (“Friends”), and is included in Appendix A. The

United States District Court for the Southern District

of Florida’s findings of fact and conclusions of law are

found in the decision styled, F’riends of the Everglades,

Inc. v. South Florida. Water Management District, 2006

WL 3635465 (S.D. Fla. Dee. 11, 2006) (“Friends”). The

district court’s orders are in Appendices B, C, and D.

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked pursuant to

28 U.S.C. § 1254. The court of appeals entered an

opinion and final judgment on June 4, 2009 (App. A).

It later denied rehearing en bane by order dated May

7, 2010 (App. E). On August 3, 2010, Justice Thomas

extended the time within which to file this petition for

writ of certiorari, making it due on August 19, 2010.

STATUTES INVOLVED

This case involves the NPDES permitting provisions

of the CWA. The CWA prohibits the discharge of any

pollutant without a permit. 33 U.S.C. §§ 1311, 1342.

At issue is whether, under 33 U.S.C. § 1362(12), the

transfer of a pollutant from one meaningfully distinct

body of “navigable waters” to another is a “discharge”

of a pollutant within the meaning of the CWA, such that

a NPDES permit must be obtained. A “discharge” of a

pollutant is defined in the CWA as “any addition of any

pollutant to navigable waters from any point source.”

Id. The meaning of that language was the subject of

the EPA’s proposed Rule (71 Fed. Reg. 32889) and final

Regulation (73 Fed. Reg. 33697 and 40 CFR 122.3(i)), as

well as the focus of both the district court and the court

of appeals in resolving the dispute below. The relevant

statutory provisions are included in Appendix F, and the

E'PA’s final Regulation is contained in Appendix G.

STATEMENT OF THE CASE

This Petition arises from two consolidated lawsuits

filed in 2002 by the Friends of the Everglades, the

Fishermen Against Destruction of the Environment,

and the Florida Wildlife Federation (collectively,

“plaintiffs”). The lawsuits alleged that the South Florida

Water Management District (““SFWMD”) viclated the

CWA by allowing discharges of pollutants into Lake

Okeechobee (the “Lake”) without NPDES permits.

Petitioner, the Miccosukee Tribe of Indians of Florida

(the “Tribe”), intervened as a plaintiff because the back-

pumping of pollutant-laden waters into the Lake without

permits threatens the Tribe’s environment and way of

life. United States Sugar and the federal government

intervened on behalf of the defendants.” The district court

had jurisdiction under 28 U.S.C. § 1331 and 33 U.S.C.

§ 1365(a).

The Lake is a large and shallow body of water that

remains “the central feature of the Everglades ecosystem

and is recognized as its liquid heart.” Friends, 2006 WL

3635465, at *7 (App. D at 70a). “It is the largest body of

fresh water in the southeastern United States and the

second largest freshwater lake within the continental

United States.” Jd. The Lake is also considered a

“navigable water,” as that term is used in the CWA. /d.

Adjacent to the Lake are a series of canals that collect

polluted water drained from their respective basins. /d. at

*12 (App. D at 81a). This canal water contains by-products

of industrial, municipal, and construction activities that are

conducted within the basins. /d. Pump stations (named

“S-2,” “S-3,” and “S-4”) are built into the dike around the

Lake where it adjoins the canals. /d. at *13 (App. D at

84a). Massive quantities of polluted water are then

moved through the pumps and discharged into the Lake.

Id. at *14 (App. D at 86a). The Lake is a potable water

source and the district court found that the discharge at

issue poses a public health threat. See id. at *18-*19

(App. D at 97a); see also Order on Remedies (App. C at

45a) (back-pumping creates “significant risk” of “serious

injury to humans and death to wildlife”). The issue before

the district court was whether permits were required

before the SFWMD could back-pump polluted cana! water

into the Lake.

2. The SFWMD, United States Sugar, and the United

States government, including the EPA, shall at times

collectively be referred to as the “defendants.”

The consolidated case was stayed pending this

Court’s decision in South Florida Water Management

District v. Miccosukee Tribe of Indians, 541 U.S. 95

(2004) (“Miccosukee”). In Miccosukee, this Court

decided in favor of the Tribe on the issue presented —

whether a point source must be the original source of

the pollutant. Jd. at 104-05. The Court answered that

question in the negative, concluding that the point

source need only convey the pollutant to “navigable

waters.” Jd. at 105. The Court found that no NPDES

permit is required unless pollutants are transferred

from one body of water to another meaningfully

distinct body of water. 7d. at 112. Miccosukee was

remanded because the Court found summary judgment

premature, as there remained a question of fact as to

whether the bodies of water at issue were meaningfully

distinct. Jd.

In addition, the Court chose not to address the

merits of the government’s so-called “unitary waters”

argument, which “posits that all of the navigable waters

of the United States constitute a single water body, such

that the transfer of water from any body of water that

is part of the navigable waters to any other could never

be an ‘addition’” within the meaning of the statute.’

See Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of N.Y., 451 F.3d 77, 81 (2d Cir. 2006)

(“Catskill 17”). Although the Miccosukee majority and

3. In other words, under the theory “all the water bodies that

fall within the Act’s definition of ‘navigable waters’ (that is, all ‘the

waters of the United States, including the territorial seas,’

§ 13862(7)) should be viewed unitarily for purposes of NPDES

permitting requirements.” Miccosukee, 541 U.S. at 105-06.

Justice Scalia both favored leaving the “unitary waters”

question for another day, the majority ruled that the

government could advance the argument on remand.

Miccosukee, 541 U.S. at 109. Justice Scalia, on the other

hand, wrote separately because he believed that there was

“no point in directing the Court of Appeals to consider an

argument it has already rejected.” /d. at 113 (Scalia, J.,

concurring in part and dissenting in part). Importantly,

the Court questioned the “unitary waters” theory, noting

that several NPDES provisions might be read to conflict

with the “unitary waters” approach. Jd. at 107-08.

After Miccosukee was decided and the stay in this case

lifted, the district court held a bench trial. Using this

Court’s decision in Miccosukee as its guide, the district

court determined that the Lake and the canals were in

fact meaningfully distinct. In so concluding, the district

court rejected the EPA's “unitary waters” theory and held

that “in the absence of a NPDES permit, the 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 CWA.” Friends,

2006 WL 36385465, at *61 (App. D at 200a). The district

court arrived at this determination on the basis of statutory

interpretation, concluding that the plain language of the

CWA required the SFWMD to obtain permits for the

operation of its pumping structures because they were

“point sources” discharging “pollutants” into navigable

waters. Jd. The EPA had earlier moved for summary

judgment on the “unitary waters” theory, which, if

accepted, would have entitled it to judgment as a matter

of law. R. 369. But the court denied that motion. R. 527 at

1. In its order following the trial, the court rejected every

argument made by the defendants regarding exclusions

and exemptions under the CWA, reasoning that requiring

permits for back-pumping is “consistent with the CWA goal

of restoring and maintaining the chemical, physical, and

biological integrity of the nation’s waters.” /d. at *42 (citing

33 U.S.C. § 1251(a)) (App. D. at 133a).

After the close of trial, but before the district court

entered judgment, the EPA proposed a Rule that

exempted water transfers, such as those at issue here, from

the permit requirements of the CWA, and defined water

transfer as an activity that conveys waters of the United

States to another water of the United States without

subjecting the water to intervening use. As with the

defendants’ other arguments, however, the district court

ultimately rejected this one too, ruling that “{nlo agency

interpretation, or court order for that matter, can alter

the unambiguous congressional intent expressed in a

statute and the Court thus rejects the interpretation

proposed by the EPA.” Friends, 2006 WL 3635465, at *48

(App. D at 169a).

Subsequent to the district court’s decision and while

this case was pending on appeal, the EPA issued a new

Regulation adopting the “unitary waters” theory and

condoning the SFWMD’s transfer of pollutants from one

body of water to another meaningfully distinct body

without a permit.’ See 73 Fed. Reg. 33697-708 (June 13,

4. The final Regulation has been separately challenged in

several federal district and circuit courts. The Judicial Panel on

Multidistrict Litigation ordered that the circuit court challenges

be litigated in the Eleventh Circuit, see Friends of the Everglades

v. B.PA., No. 08-13652-C (11th Cir.), and stayed pending the

decision of the court of appeals in this case. The district court

lawsuits have also been stayed. See Catskill Mountains Chapter of

Trout Unlimited, Inc. v. E.PA., 630 F. Supp. 2d 295 (S.D.N.Y. 2009)).

2008) (codified at 40 C.F-R. § 122.3(i) (hereinafter, the

“Regulation”) (App. G). Through this post hoc

interpretation, the EPA ignored key portions of this

Court’s decision in Miccosukee and effectively eviscerated

the permit provisions of the CWA, codifying its argument

that all “navigable waters” are one.

The Eleventh Circuit agreed that “the agricultural

canals and Lake Okeechobee are meaningfully distinct

water bodies.” Friends, 570 F.3d at 1216 n.4 (App. A at

10a). But instead of affirming the district court consistent

with Miccosukee, the court of appeals reversed on the basis

of the EPA’s new Regulation. /d. at 1228 (App. A at 36a)

While recognizing that the “unitary waters” theory had

been uniformly rejected by courts, the Eleventh Circuit

found the Regulation entitled to deference because, in its

view, the statutory language was ambiguous. /d. at 1218-

19, 1227-28 (App. A at 18a, 34a). The court of appeals

declined en banc review after requesting a response on

the en banc petitions and considering the case for nearly a

year. Friends of the Everglades v. South Fla. Water Mgmt.

Dist., 605 F.3d 962 (11th Cir. 2010) (App. E).

The Tribe now seeks a writ of certiorari to review the

Eleventh Circuit’s decision, which is contrary to the

unambiguous language of the CWA and not only conflicts

with precedent from this Court and the other circuits on

the issue of whether a NPDES permit is required for the

discharges here, but also with the constitutional doctrine

of separation of powers.

REASONS FOR GRANTING THE PETITION

In Miccosukee, this Court, while expressing doubts,

left unanswered the question of whether the “unitary

waters” theory is an incorrect construction of the CWA’s

permitting provisions. 541 U.S. at 107-08, 109. Likewise,

in a separate opinion, Justice Scalia stressed the

importance of “leaving the Government’s unitary-waters

theory to be considered in another case.” /d. at 113

(Scalia, J.). This is that case.

Certiorari should be granted because the opinion

of the court of appeals conflicts with the decision of this

Court in Miccosukee, which held that conveyances that

do not themselves add pollutants nevertheless require

NPDES permits, and with decisions of all other circuits

that have considered the “unitary waters” approach. The

decision below allows discharges of pollutants into

“navigable waters” of the United States without

permits, in contravention of the unambiguous language

and intent of the statute. The court of appeals’

acceptance of the government’s theory eviscerates the

NPDES permitting requirement of the CWA, which, as

the district court recognized, represents “the most

important tool in achieving the goal of cleaning up the

nation’s waters.” Friends, 2006 WL 3635465, at *42

(App. D at 133a). The court of appeals’ decision will

undoubtedly affect numerous discharges, allowing the

movement of pollutants from contaminated and toxic

canals into pristine waters. Thus, in order to settle the

meaning of this important federal statute, the Court

should grant review in this case.

Relatedly, certiorari is also necessary to resolve the

issue of whether an agency’s mid-suit promulgation of

a regulation is entitled to any deference when it merely

sets forth a previously-argued and previously-rejected

litigation position. As we have here, an agency’s

codification of a losing litigation position is suspect and

not attendant with the usual indicia of reliability. In

deferring to the EPA’s Regulation in this case, the court

of appeals disregarded this fact as not important.

In so doing, it departed from this Court’s instruction

that administrative interpretations tantamount to

amorphous litigation positions carry little, if any, weight

and that deference is not due when a statute is clear.

Further, the Court should grant review because the

EPA’s promulgation of the Regulation, in order to force

deference to its previously-rejected litigation position,

violates the separation of powers doctrine in two

respects: first, because it allows an agency of the

Executive Branch to prescribe a rule of decision without

amending applicable law; and second, because the

judgments of Article III courts are not answerable to,

and cannot be altered by, an agency of a coordinate

branch of government.

Thus, in addition to important issues regarding the

interpretation of the CWA and the plain meaning of the

NPDES permitting provisions, this case presents an

exceptional question about how far the government may

go to shroud an untenable and rejected interpretation

of a federal statute with apparent legitimacy, through

an eleventh hour Regulation designed to alter the

lawsuit’s outcome.

I. Certiorari Should Be Granted Because The

Eleventh Circuit’s Decision, Which Is Contrary To

The CWA’s Unambiguous Permit Requirements, Is

Inconsistent With This Court’s Decision In

Miccosukee Requiring Permits, As Well As With The

Decisions Of Other Circuits Regarding The

“Unitary Waters” Theory

Certiorari should be granted because the Eleventh

Circuit’s interpretation of the CWA’s NPDES

permitting provisions is inconsistent with this Court’s

decision in Miccosukee, which recognized that NPDES

permits are required for discharges of pollutants where

bodies of water are meaningfully distinct.

Miccosukee found that “a point source need not be

the original source of the pollutant; it need only convey

the pollutant to ‘navigable waters.’” Miccosukee, 541

U.S. at 105. The EPA’s Regulation contradicts this

holding by exempting conveyances of “navigable

waters” from permitting requirements so long as

nothing is added to the water en route to the

transferring destination. The E PA explained that, under

the final Regulation, permits are required only for

“pollutants introduced by the water transfer activity

itself to the water being transferred,” and that the scope

of the required NPDES permits would be only for those

“added pollutants.” See 73 Fed. Reg. 33697, 33705 (June

13, 2008) (responding to public comments). This is

another way of saying that a permit is required only if

the point source is the original source of the pollutant -

a position directly rejected by Miccosukee’s holding. In

fact, the E PA’s explanation shows that its interpretation

is directly contrary to Miccosukee: “Such a permit would

not require the water transfer facility to addres:

pollutants that may have been in the donor waterbody

and are being transferred.” /d.

The Eleventh Circuit agreed with the district court

that the canals and the Lake were meaningfully distinct

bodies of water under the CWA. Friends, 570 F.3d at

1216 n.4 (App. A at 10a). Consistent with Miccosukee,

therefore, NPDES permits were required for the back

pumping. See Catskill 11, 451 F.3d at 82 (“Miccosukee

held that if the canal and the wetlands are not

meaningfully distinct water bodies — an unresolved

factual question —- no NPDES permit is required.”);

Friends, 2006 WL 3635465, at *37 (“[T]he [Miccosukee |

Court held that the water transfer activities only

required a NPDES permit if they transferred water (and

pollutants) from one body of water to another

meaningfully distinct body of water.”) (App. D at 148a).

The Eleventh Circuit’s contrary finding, and its

deference to the EPA’s Regulation, thus creates a

conflict with Miccosukee. This conflict in the

interpretation of an important federal statute, as well

as the unprecedented environmental damage that will

result as a consequence of the decision below, makes

this an issue of exceptional importance meriting

certiorari review.

So does the fact that the EL PA’s interpretation

conflicts with precedent from the First and Second

Circuits. See Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of N.Y., 273 F.3d 481 (2d Cir. 2001)

(“Catskill I”); Catskill Mountains Chapter of Trout

Unlimated, Inc. v. City of N.Y., 451 F.3d 77 (2d Cir. 2006)

(“Catskill II” ); Dubois v. U.S. Dep't of Agric., 102 F.3d

1278 (st Cir. 1996). In Dubois, the First Circuit noted

the problem with the interpretation advanced by the

Ky PA in the Regulation here: under the “unitary waters”

theory, a river so polluted that “|iJt emitted an

overwhelming odor and was known to peel the paint off

buildings located on its banks” would be allowed to

discharge into a pond irrespective of the river’s pollution

and no matter how pristine the pond. Dubois, 102 F.3d

at 1297. The First Circuit concluded that Congress could

not have intended such an “irrational result.” /d

Similarly, in Catskill 1], the Second Circuit rejected the

“unitary waters” theory (and every basis argued in

support of it), finding that nothing in the text of the

CWA supports inter-basin transfers of pollutants

without permits. See Catskill 1], 451 F.3d at 84-85;

see also Friends, 2006 WL 3635465, at *48 (App. D at

169a). Like the First Circuit, the Second Circuit

concluded that the E PA’s interpretation “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 requirement.” Catskill 1], 451 E3d at

81 (citing Catskill 1, 273 F-3d at 493). Yet in this case,

remarkably, the Eleventh Circuit concluded that such

an interpretation was reasonable

Thus, by countenancing the IE PA’s interpretation

in the final Regulation, the court of appeals delivered a

decision in conflict with the First and Second Circuits,

which have described the theory underlying the

agency’s interpretation as irrational and absurd

Kurther, the Eleventh Circuit’s decision conflicts with

Miccosukee’s interpretation of the CWA and it

skepticism of the “unitary waters” approach. The district

court here, as with other courts before it, rejected the

“unitary waters” theory. This Court should now grant

certiorari to finally resolve the issue left open by

Miccosukee, a case that the Tribe took to this Court

approximately six years ago in order to protect its

homeland, the Everglades, and which remains

unresolved in the district court because of the EPA’

“unitary waters” theory.

Il. Certiorari Should Be Granted Because The

Eleventh Circuit Accorded Deference To The EPA's

Regulation Contrary To This Court’s Decisions

Certiorari also should be granted because, contrary

Lo prior Supreme Court precedent, the court of appeal:

erroneously accorded deference to the E PA’s Regulation

under Chevron U.S.A. Inc. v. Natural Resource Defense

Council, Ine., 467 U.S. 887 (1984)

A. The EPA’s interpretation is not entitled to

deference because the CWA is unambiguous

This Court has said that “liln the context of an

unambiguous statute, we need not contemplate

deferring to the agency’s interpretation.” Barnhart 4

Sigmon Coal Co., 584 U.S. 4388, 462 (2002) (citing

Chevron, 467 U.S. at 842-43).” No Chevron deference

» See also Volkswagenwerk Aktiengesellschaft v. ked. Muy

Comm'n, 890 U.S. 261, 272 (1968) (courts should not affirm

udministrative decisions which are inconsistent with a statute)

Koshland v. llelvering, 298 U.S. 441, 446-47 (19286) (a repulatior

cannot amend a statute's unambiguous provision

was owed to the EPA's absurd interpretation because

the statute’s permitting requirement is unambiguous,

just as the district court found. See Friends, 2006 WL

3635465, at *48 (“[T]Jhe undersigned finds that the

statute is unambiguous. No agency interpretation, or

court order for that matter, can alter the unambiguous

congressional intent expressed in a statute and the

Court thus rejects the interpretation proposed by the

EPA.”) (App. D at 169a); see also Catskill I], 451 F.3d

at 84-85 (plain meaning of the word “addition” in the

CWA controls).

The court of appeals strained to find ambiguity and

treated as outcome determinative a Regulation that

works substantive changes to the statute under the

guise of “clarification.” See Smith v. Scott, 223 F.3d

1191, 1195 (10th Cir. 2000) (an agency cannot make

substantive changes under guise of clarification).

Indeed, “[tjhe [EPA’s] treatment of this statute is not

an interpretation but a rewrite.” Jndiana Michigan

Power Co. v. Dep’t of Energy, 88 F.8d 1272, 1276

(D.C. Cir. 1996). As the Court explained in Barnhart:

[The Judiciary’s] role is to interpret the

language of the statute enacted by Congress.

This statute does not contain conflicting

provisions or ambiguous language. Nor

does it require a narrowing construction

or application of any other eanon or

interpretative tool. “We have stated time and

again that courts must presume that a

legislature says in a statute what it means and

means in a statute what it says there. When

the words of a statute are unambiguous, then,

this first canon is also the last: ‘judicial inquiry

is complete.” We will not alter the text in

order to satisfy the policy preferences of the

Commissioner. These are battles that should

be fought among the political branches and

[the affected parties]. Those parties should

not seek to amend the statute by appeal to

the Judicial Branch.

Barnhart, 534 U.S. at 461-62 (citations omitted). That

analysis aptly fits this case. If the defendants’ “policy

preferences” are that no permits be required for

transfers between separate bodies of “navigable

waters,” then they must properly and within the limits

of law take that battle to the “political branches,” not

the courts. The statute as written is unambiguous in its

requirement for NPDES permits and thus no deference

was owed to the E-PA’s Regulation.

The Eleventh Circuit's finding of ambiguity evinces

a misdirected focus on the term “navigable waters”

instead of “addition” in the statute. The issue in this

case is whether the back-pumping of dirty canal water

into the Lake constitutes a “discharge” of pollutants so

as to require NPDES permits. “Discharge” includes

“any addition of any pollutant to navigable waters from

any point source.” 33 U.S.C. § 1362(12) (emphasis

supplied).

Rather than focusing upon the plain meaning of the

word “addition,” as the Second Circuit did in Catskill I

and // and as the district court did in this case, the

Eleventh Circuit shifted its focus to the term “navigable

waters.” See Friends, 570 F.3d at 1223 (“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.”)

(App. A at 25a). It reasoned that the statute was

ambiguous because “navigable waters” did not have the

word “any” in front of it:

According to the Water District, the

conspicuous absence of “any” before

“navigable waters” in § 1362(12) supports the

unitary waters theory because it implies that

Congress was not talking about avy 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. Besides, if the meaning of

language is plain, no alteration should be

necessary to clarify it. The addition or

subtraction of words indicates that the

unaltered language is not plain.

There are two reasonable ways to read the

§ 13861(12) language “any addition of any

pollutant to navigable waters from any point

source.” One is that it means “any addition

... to [any] 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.”

Id. at 1224, 1227 (citations omitted; emphasis original)

(App. A at 28a, 36a). Notably, the EPA did not rely on

the “absent any” argument that the Eleventh Circuit

panel found so dispositive, and this curious disconnect

between the agency’s rationale and the court of appeals’

decision clearly undermines the argument for deference.

Moreover, what the court of appeals ignored is the

plain meaning of the term “any addition.” As the district

court and Second Circuit found, that term

unambiguously means that permits are required

whenever there is something added to a body of

“navigable waters,” and this Court held in Miccosukee

that the “addition” must be from another meaningfully

distinct body of water. The district court explained as

follows:

“Addition” is defined as the “joining of

one thing to another.” Webster’s Third

International Dictionary Unabridged, p. 24

(1993). Although the EPA states “that it is

reasonable to interpret ‘addition’ as not

generally including the mere transfer of

waters from one water of the U.S. to another,”

it offers no sound explanation in support of

its strained definition of the term. 71 Fed. Reg.

32891. Notwithstanding Defendants’

protestations to the contrary, it is 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.

Friends, 2006 WL 3685465, at *42 (citations omitted)

(App. D at 133a). Similarly, the Second Circuit found

that “[g]iven the ordinary meaning of the CWA’s text,”

the government’s “unitary waters” theory offers “an

interpretation [that] is inconsistent with the ordinary

meaning of the word ‘addition.”” Catskill I, 273 F.3d at

493; see also Dubois, 102 F.3d at 1297-99 (discussing

meaning of “addition”). Thus, both of those courts found

that “addition” was the relevant term and that a permit

is required if pollutants are transferred from one body

of water to another meaningfully distinet body.

Miccosukee, 541 U.S. at 112. In focusing on the term

“navigable waters” instead of “any addition,” the

Eleventh Circuit incorrectly found ambiguity where

there is none.

Clearly, “navigable waters” is used in the statute

as a jurisdictional term to identify those bodies of water

that are subject to federal regulation. See, e.g., Rapanos

v. United States, 547 U.S. 715 (2006) (discussing

jurisdictional significance and scope of “navigable

waters”); Kaiser Aetna v. United States, 444 U.S. 164,

172 (1979) (discussing “definition of ‘navigable waters’

as this Court has used that term in delimiting the

boundaries of Congress’ regulatory authority under the

Commerce Clause”). The CWA merely requires that the

destination waters (that is, the waters into which a

discharge occurs) are “navigable,” or “waters of the

United States,” so as to ensure they are subject to

Congress’s authority to regulate under the Commerce

Clause. The originating location or character of the

waters being discharged into “navigable waters” is

simply irrelevant under the statute. As explained, all

that matters for purposes of determining whether there

is a “discharge” of pollutants such that a permit is

required, is whether there has been “any addition” of

pollutants from another meaningfully distinct body of

water. That the CWA contains a scheme of provisions

focusing upon the water quality standards of individual

bodies strongly supports this reading of the statute.*®

See Miccosukee, 541 U.S. at 106-07. Thus, the term

“addition” was not ambiguous; and, consequently, there

was no basis for the Hleventh Circuit to defer to the

EPA’s construction.

Moreover, the prior court decisions finding the

statute unambiguous control over the EPA’s

subsequent interpretation, pursuant to this Court’s

decision in National Cable & Telecommunications

Association v. Brand X Internet Services, 545 U.S. 967

(2005) (“Brand X”’). Brand X held that “[{a] court’s prior

judicial construction of a statute trumps an agency

construction otherwise entitled to Chevron deference

only if the prior court decision holds that zts

construction follows from the unambiguous terms of

the statute and thus leaves no room for agency

discretion.” Id. at 982 (emphasis supplied). In other

6. So too does the fact that the term “dredged spoil” is part

of the definition of “pollutant” under 33 U.S.C. § 1362(6).

“Dredged spoil” inherently comes from other “navigable

waters”; and yet when it is discharged, a permit is required.

See Petition for Writ of Certiorari by Friends of the Everglades

et al. at 22-23. Thus, the EPA’s “unitary waters” theory is

inconsistent with the very definition of “pollutant” under the

CWA.

words, “[ojnly 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.” Jd. at 982-83.

Because prior decisions left “no gap for the agency

to fill,” the court of appeals owed no deference to the

agency’s interpretation here. Jd. Prior court decisions

found that the “unitary waters” theory conflicts with

the plain language of the statute. See Catskill IJ, 451

F'3d at 85 (repeatedly indicating that its decision was

mandated by “the text of the CWA” and the statute’s

“plain language”); Friends, 2006 WL 3635465, at

*48 (“[T]he undersigned finds that the statute is

unambiguous. No agency interpretation, or court order

for that matter, can alter the unambiguous congressional

intent expressed in a statute and the Court thus rejects

the interpretation proposed by the EPA.”) (App. D at

169a). In Catskill I and JI, for example, the Second

Cireuit, like the district court in this case, found that

the word “addition” plainly meant permits were required

whenever there is a transfer of water from one

meaningfully distinct body to another. See Catskill IJ,

451 F.3d at 84-85. Thus, consistent with Brand X, those

prior interpretations of the statute’s plain language

should trump the EPA’s contrary construction in the

Regulation.‘

7. One ancillary question left after Brand X “to bedevil

the lower courts,” 545 U.S. at 1018 (Sealia, J., dissenting), is

readily apparent here and sheuld be resolved by this Court -

i.e., the force that prior judicial determinations of no ambiguity

by a sister crrcurt carry under Brand X’s agency-reversal rule.

B. The EPA’s interpretation is not entitled to

deference because the theory underlying it

has been unanimously rejected by the courts

Deference was also inappropriate because the

Regulation is based on a theory that has been uniformly

rejected by every court to have considered its merits.

As the Eleventh Circuit itself recognized, even this

Court has cast doubt on the “unitary waters” theory,

albeit without definitively deciding the issue:

The unitary waters theory has a low batting

average. In fact, it has struck out in every court

of appeals where it has come up to the plate.

Even the Supreme Court has called a strike or

two on the theory, [but]. . . [t]he Court has not,

however, called the theory out yet.

Friends, 570 F.3d at 1217-18 (citing, among others,

Catskill 1, 273 F.3d at 491; Catskill J], 451 F.3d at 8&3;

Dubois, 102 F.3d at 1296; Miccosukee, 541 U.S. at 107)

(App. A at 12a).°

In Miccosukee, this Court referred to the “unitary

waters” theory with skepticism and noted its tension

with other statutory provisions and regulations:

[SJeveral NPDES provisions might be read

to suggest a view contrary to the unitary

8. The Eleventh Circuit also acknowledged that a prior

panel of that court had at “one time decided to reject” the

“unitary waters” theory as well, “but that decision was vacated”

when this Court granted certiorari in Miccosukee. See Friends,

570 F.3d at -218 (App. A at 13a).

9) »)

rare

waters approach. ... This approach [under

33 U.S.C. §§ 13813(¢c)(2)(A) and (d)] suggests

that the Act protects individual water bodies

as well as the “waters of the United States”

as a whole.

The Government also suggests that we adopt

the “unitary waters” approach out of

deference to a longstanding EPA view that

the process of “transporting, impounding, and

releasing navigable waters” cannot constitute

an “addition” of pollutants to “‘the waters of

the United States.’” But the Government does

not identify any administrative documents in

which EPA has espoused that position.

Indeed, an amicus brief filed by several

former EPA officials argues that the agency

once reached the opposite conclusion. The

“unitary waters” approach could also conflict

with current NPDES regulations [including,

for example 40 C.F\R. § 122.45(g)(4)]. .. .

The NPDES program thus appears to

address the movement of pollutants among

water bodies, at least at times.

541 U.S. at 107-08 (citations omitted;.emphasis supplied).

As the Miccosukee decision suggests, the “unitary

waters” theory in fact presents a problematic

interpretation that is incompatible with several

provisions of the CWA - including, notably, the entire

group of provisions aimed at water-body-specific “water

quality standards.” Miccosukee, 541 U.S. at 106-07;

see also Catskill IJ, 451 F.8d at 81. Nevertheless,

contrary to all circuits that have decided the issue, the

Eleventh Circuit panel concluded that the CWA was

ambiguous with regard to the requirements for NPDES

permits and then afforded deference to the final

Regulation that codified this absurd theory.

This Court recently said that “[w]Je need ‘accept only

those agency interpretations that are reasonable in light

of the principles of construction courts normally

employ.” See Morrison v. Nat'l Australia Bank Ltd.,

130 S.Ct. 2869, 2887, (2010). In Morrison, the Court

rejected the SEC’s interpretation because it relied on

the flawed reasoning of “cases we disapprove” and

therefore “we owe [the agency’s position] no deference.”

Id. at 2887-88. The same holds true in this case. The

court of appeals acknowledged that the “unitary waters”

theory, upon which the Regulation is based, was rejected

by every circuit to have considered it and was questioned

by this Court in Miccosukee. Indeed, the opinion below

concludes that “all of the existing precedent and the

statements in our own vacated decision are against the

unitary waters theory,” adding that, “[iJf nothing had

changed, we might make it unanimous.” Friends, 570

F.3d at 1218 (App. A at 18a). Those prior decisions

rejecting the “unitary waters” theory as untenable were

rendered on the basis of “the principles of construction

that courts normally employ.” Accordingly, consistent

with Morrison, the Regulation should be rejected as a

baseless construction of the CWA that is entitled to no

deference.

In sum, because the Eleventh Circuit has embraced

a construction that is both obviously inconsistent with

the CWA and contrary to decisions of other circuits, the

Court should now decide the issue it left open in

Miccosukee and definitively rule out the “unitary

waters” theory. See, e.g., N.L.R.B. v. United Food &

Comm. Workers Union, Local 23, AFL-CIO, 484 U.S.

112, 128 (1987) (deference owed only “as long as

[agency’s] interpretation is rational and consistent with

the statute”); Ma vu. Ashcroft, 361 F.3d 5538, 559 (9th Cir.

2004) (where agency’s interpretation “contravenes the

statute and leads to absurd and wholly unacceptable

results,” the court “need not defer”); Mova Pharm.

Corp. v. Shalala, 140 F.3d 1060, 1069 (D.C. Cir. 1998)

(no Chevron deference where “the {agency] has

embarked upon an adventurous transplant operation”

of the statute and its interpretation “is inconsistent with

the unambiguously expressed intent of Congress”).

C. The EPA’s interpretation is not entitled to

deference because it is merely a losing

litigation position that was subsequently

codified in the course of this case

In addition to the reasons above, the EPA’s

Regulation is due no deference because, as this Court

has said, agency interpretations amounting to little

more than “convenient litigating position|[s]” carry little

weight. See Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 213 (1988) (“Deference to what appears to be

nothing more than an agency’s convenient litigating

position would be entirely inappropriate.”); United

States v. Mead Corp., 533 U.S. 218, 228 (2001) (level of

deference owed to agency interpretations advanced

during litigation is “near indifference”). Similarly,

the Court has said that an agency’s “post hoc

rationalization|s],” which are advanced “to defend past

agency action against attack,” are not subject to

deference. See, e.g., Auer v. Robbins, 519 U.S. 452, 462

(1997); Bowen, 488 U.S. at 212; cf FedEx Corp. v

Holowecki, 552 U.S. 389, 400 (2008) (according

deference because there was “no reason to assume the

agency’s position ... was framed for the specific purpose

of aiding a party in this litigation”). Consistent with

these principles, an agency “may not take advantage of

[its} power to promulgate retroactive regulations during

the course of a litigation for the purpose of providing

[it}self with a defense.” Chock Full O’ Nuts Corp. v.

United States, 4538 F.2d 300, 308 (2d Cir. 1971). Yet, in

this case, the EPA did just that; and the court of appeals

condoned it.

After briefing on appeal, the EPA finalized the

Regulation at issue here. It did so to tip the seales in its

favor and alter the outcome of this federal lawsuit

something that it succeeded in doing. In merely making

“official” its prior arguments, the EPA did not change

the character of what was still a mere convenient

litigating position — one which the district court rejected

out of hand. Indeed, the Regulation itself actually quotes

from the government’s appellate brief to the Eleventh

Circuit, thus making plain that the EPA was simply

attempting to legitimize what was previously just an

unpersuasive argument. See Petition for Writ of

Certiorari by Friends of the Everglades et al. at 8. The

EPA’s Regulation was a game-changer in this lawsuit,

and the very essence of a forbidden post hoc

rationalization. Were it not for the EPA’s Regulation,

the court of appeals would not have reached the

conclusion that it did.

In finding insignificant the E PA’s manipulation, the

Kleventh Circuit mistakenly relied upon statements

from this Court’s decisions in Smiley v. Citibank (South

Dakota), N.A., 517 U.S. 735, 740-41 (1996); United

States v. Morton, 467 U.S. 822, 8385 n.21 (1984); and

Barnhart v. Walton, 5385 U.S. 212, 221 (2002). Those

cases are inapposite under these facts. In Smiley, the

Court did say that it does not “matter that the regulation

was prompted by litigation, including this very suit.”

Smiley, 517 U.S. at 741. But the agency position there

was not advanced as a losing argument in the lower court

only to be later codified as a regulation in order to alter

the outcome on appeal. Thus, Smiley does not contro!

here;’ and neither does Morton or Barnhart

[In Morton, there is no indication that the position

embodied in the regulation was advanced as a losing

litigation position only to be subsequently adopted in

order to turn the tides in the case. In addition, the Court

found the regulation’s enactment in response to the

lawsuit unproblematic because the suit had “brought

to light an additional administrative problem of the type

that Congress thought should be addressed by

regulation,” which was before not otherwise apparent.

Morton, 467 U.S. at 8386 n.21. The same cannot be said

here. The EPA was wel! aware of the central

9. Importantly, however, Smiley noted the principle explained

above, that “[|o]f course we deny deference ‘to agency litigating

positions that are wholly unsupported by regulations, rulings, or

administrative practice,” because “[t]he deliberateness of such

positions, if not indeed their authoritativeness, is suspect.” Smiley,

517 U.S. at 741 (citing Bowen, 488 U.S. at 212). To the extent Smiley

is relevant at all, it is for that proposition, not the one relied upon

by the court of appeal

interpretative issue in this case, as the “unitary wate!

theory was nothing new and had been advanced as

argument — unavailingly — in several prior cases. Thi

fact makes the EPA's manipulation readily apparent

harnhart is similarly unhelpful because there, unlike

here, the regulations were not adopted to effectively

manipulate the case’s outcome. Indeed, the agency’

position carried the day before the district court and

was only defeated before the Fourth Circuit, which found

that the statute was unambiguous and, hence, not

subject to the agency’s interpretation. Barnhart, 535

U.S. at 216. Upon review, this Court disagreed, stating

that “the statute does not unambiguously forbid the

layency’s| regulation.” /d. at 218. It then went on to

find the agency’s construction permissible. /d. at 219

20. Accordingly, when the Court refused to disregard

the regulations because they were “only recently enacted

, perhaps in response to this litigation,” zd. at 221, it

did so under circumstances completely inapposite to thi

Cas,

The court of appeals was therefore wrong to take

the uncritical view that the EPA's conduct in this case

could be justified, and excused, by reference to thi

Court's prior decisions. It quite simply cannot

19,

“ua

Ill. Certiorari Should Be Granted To Decide The

Important Question Of Whether The Eleventh

Circuit’s Deference To The EPA’s Regulation

Violates Separation Of Powers Principles

In deferring to the EPA’s post hoc interpretation of

the statute, the court of appeals permitted an Executive

Branch agency to improperly manipulate the lawsuit’s

outcome. This raises separation of powers concerns.

As this Court has said, “the separation-of-powers

doctrine requires that a branch not impair another in

the performance of its constitutional duties.” Loving v.

United States, 517 U.S. 748, 757 (1996). The Constitution

“gives the Federal Judiciary the power, not merely to

rule on cases, but to decide them, subject to review only

by superior courts in the Article IIT hierarchy — with an

understanding, in short, that ‘a judgment conclusively

resolves the case’ because ‘a ‘judicial Power’ is one to

render dispositive judgments.” Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 218-19 (1995).

In this case, the EPA, by the use of its purported

“interpretation” of the CWA, attempts to do what the

Supreme Court has forbidden Congress to do — that is,

to direct a particular decision in a case without amending

the applicable law. See Robertson v. Seattle Audubon

Soc’y, 503 U.S. 429, 486 (1992), citing United States v.

Klein, 80 U.S. 128 (1871). In Klein, the Court struck

down as unconstitutional a statute dictating the outcome

in a pending case and requiring the decision to be

made in the government's favor. United States v.

Sioux Nation of Indians, 448 U.S. 371, 404 (1980)

(characterizing Klein). This Court has explained the Klein

decision thusly:

Klein, the executor of the estate of a

Confederate sympathizer, sought to recover the

value of property seized by the United States

during the Civil War, which by statute was

recoverable if Klein could demonstrate that the

decedent had not given aid or comfort to the

rebellion. In United States v. Padelford, 9 Wall.

531, 542-543, 19 L. Ed. 788 (1869), [the Court]

held that a Presidential pardon satisfied the

burden of proving that no such aid or comfort

had been given. While Klein’s case was pending,

Congress enacted a statute providing that a

pardon would instead be taken as proof that the

pardoned individual had in fact aided the enemy,

and if the claimant offered proof of a pardon the

court must dismiss the case for lack of

jurisdiction. [The Court] concluded that the

statute was unconstitutional because it

purported to “prescribe rules of decision to the

Judicial Department of the government in cases

pending before it.”

French v. Miller, 5380 U.S. 327, 348-49 (2000) (citations

omitted). A similar thing occurred here when the EPA

issued its Regulation, commanding the Eleventh Circuit’s

deference to a rejected statutory interpretation, just so it

could win the case. Indeed, by its Regulation, the agency

effectively “assigned to the federal court only rubber stamp

work,” leaving the plaintiffs with “no judicial audience,”

for the court of appeals saw its task as merely to defer to

the “unitary waters” theory, no matter how absurd it

or other courts believed the interpretation to be.

Cf Gutierrez de Martinez v. Lamagno, 515 U.S. 417,

429 (1995). Moreover, the court of appeals in essence

decided the pending and stayed rule challenges, leaving

all parties without a judicial forum to adjudicate the

va’ ‘dity of the Regulation. See n.4, supra.

This Court has not had occasion to address the

application of Klein and progeny to, as we have here,

an agency’s promulgation of a regulation during the

pendency of a case in order to alter, manipulate, or

prescribe its outcome. The principle announced in Alein

— that a coequal branch of the government cannot dictate

findings or command particular results — applies equally

in this setting.

While Klein has been somewhat limited by

subsequent decisions, that limitation does not come into

play here. In Plaut, 514 U.S. at 218, the Court said,

“[wlhatever the precise scope of Klein, however, later

decisions have made clear that its prohibition does not

take hold when Congress ‘amend[s] applicable law.’”” In

this case, Congress has not changed the law at all.

Rather, the CWA is exactly as it was when this case

began. The only change has been the EPA’s Regulation,

which sets forth a post hoc rationalization based on the

government’s losing litigation arguments in order to

alter the case’s outcome. Thus, there is a viable

separation of powers question under Klein, even as

limited by its progeny. Cf Clark v. l/nited States, 2007

WL 2142652, at *6 (Fed. Cl. Ct. July 17, 2007) (“While

the government is correct that Klein has been limited

by subsequent Supreme Court decisions, . . . the

government’s analysis ignores the unique circumstances

Neither the Supreme Court

nor any Circuit ... has had the opportunity to opine on

the application of Alezn in such a circumstance .... For

that reason, Alein continues to pose a constitutional

question[.]”). Accordingly, certiorari should be granted

to consider this important separation of powers

question.

And the separation of powers doctrine is implicated

in another respect as well: The power of the federal

courts is not subject to usurpation by an agency of the

Executive Branch. See, e.g., Plaut, 514 U.S. at 218 (“The

second type of unconstitutional restriction upon the

exercise of the judicial power .. . [is] that Congress

cannot vest review of the decisions of Article IJ] courts

in officials of the Executive Branch.’).'® Indeed,

10. See also Chicago & S. Air Lines, Inc. v. Waterman S. S.

Corp., 333 U.S. 108, 113-14 (1948) (“It has also been the firm

and unvarying practice of Constitutional Courts to render no

judgments... that are subject to later review or alteration by

administrative action.”); Jz re Swanson, 540 F.3d 1368, 1378-79

(Fed. Cir. 2008) (“The Supreme Court has repeatedly held that

‘Congress cannot vest review of the decisions of Article I1]

courts in officials of the Executive Branch.’”). Cf Alaska Dep't

of Envtl. Conserv. v. E.PA., 540 U.S. 461, 511-12 (2004) (Sealia,

J., dissenting) (“If a federal agency were to exercise an

analogous power to review the decisions of federal courts, the

arrangement would violate the well-established rule that the

judgments of Article III courts cannot be revised by the

(Cont'd)

if a judgment of an Article III court were

subject to revision by a coordinate branch, it

would not be the exercise of judicial power.

Since neither the legislative branch nor the

executive branch has the power to review

judgments of an Article III court, an

administrative agency such as the [EPA],

which is a creature of the legislative and

executive branches, similarly has no such

power.

Town of Deerfreld, N.Y. v. FC.C., 992 F.2d 420, 428 (2d

Cir. 1993) (citation omitted; emphasis original). In this

case, when the court of appeals heeded the EPA's absurd

interpretation of the CWA, it allowed just that to occur.

The court of appeals sanctioned the EPA’s use of a

Regulation to do what it otherwise could not do — namely,

reverse the district court’s well-founded conclusions

about the meaning of the CWA’s permitting provisions.

See id. (administrative agency has no power to “review

judgments of an Article III court”). Thus, the court of

appeals allowed the Executive Branch to manipulate the

(Cont'd)

Executive or Legislative Branches. ... The principle that

judicial decisions cannot be reopened at the whim of the

Executive or the Legislature is essential to preserving

separation of powers and judicial independence.”), citing Case

of Hayburn, 2 U.S. 408, 410 n.* (1792) (“L[B]y the constitution,

neither the secretary at war, nor any other executive officer, nor

even the legislature, are authorized to sit as a court of errors on

the judicial acts or opinions of this court.”) and Plaut, 514 U.S.

at 211.

Judiciary and dictate a different outcome in a lawsuit,

in violation of the separation of powers doctrine.”

Therefore, the Court should grant certiorari to

make explicit that an agency’s after-thought of a

Regulation, which effectively usurps the Judiciary’s

function, may not be accorded deference consistent with

the separation of powers doctrine.

11. Justice Scalia raised similar concerns in his Brand X

dissent, albeit in a slightly different factual context. There, he

argued that the majority’s decision allowed for “judicial

decisions subject to reversal by executive officers” — a result he

found “not only bizarre,” but also “probably unconstitutional.”

Brand X, 545 U.S. at 1016, 1017 @ealia, J. , dissenting). In support

of this view, Justice Sealia cited one of the separation of powers

cases noted above, Chicago & Southern Air Lines, Inc. v.

Waterman S.S. Corp., 333 U.S. 103, 113 (1948), wherein the Court

held that “Article III courts do not sit to render decisions that

can be reversed or ignored by executive officers.” See Brand X,

545 U.S. at 1017 (Scalia, J.).

CONCLUSION

For all of the important reasons explained above,

the Court should grant this petition and issue a writ of

certiorari to the United States Court of Appeals for the

Eleventh Circuit to review its decision in this case.

Respectfully submitted,

SONIA Escosio O’ DONNELL

Counsel of Record

JAMES E/DWIN KIRTLEY, JR.

LARA O’DONNELL GRILLO

JORDEN Burt LLP

777 Brickell Avenue

Suite 500

Miami, Florida 33131

(305) 371-2600

SEO @jordenusa.com

Attorneys for Petitioner

APPENDIX

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. 07-138829

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,

{ppendix /

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-Defendant:

Appellant

Appeal from the United States District Court

for the Southern District of Florida

(June 4, 2009)

sefore DUBINA, Chief Judge, CARNES, Circuit

Judge, and GOLDBERG,* Judge

Honorable Richard W. Goldberg , Judge, United State

Court of International ‘lrade, sitting by designatior

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 itis, a National

Pollution Discharge Elimination System permit i:

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

Kleventh Amendment question, is whether we owe that

KPA regulation deference under Chevron U.S.A., Inc

v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104

S. Ct. 2778 (1984).

The unique geography of South Florida is once again

before us. See Miccosukee Tribe of Indians of Fla

v. United States, — F.8d , 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 control, they mad

their plans and they drained the land.’

In the 1930s the Herbert Hoover Dike was built

along the southern shore of Lake Okeechobee. It wa

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

1. Under the modern version of that project, nearly all

water flow in South Florida is controlled by a complex

ystem of gates, dikes, canals, and pump station

The area south of Lake Okeechobee’s shoreline wa

designated the Everglades Agricultural Area. The Corp

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 contaminant

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

| John Ander QT CTO WY nd Ti} Mil yiLOite Vy

BMG Kecords 1992)

2. The canals are commonly called the KAA canals, and we

will refer to them as the agricultural canal though the also

ontain industrial and residential runof!

ippe nadia |

The S-2, S-3, and S-4 pump stations are built into the

dike and pump water from the lower levels in the canal

outside the dike into the higher lake water. They do that

by spewing water through the dike and into “rim canal

open to the lake. This process moves the wate

containing Agricultural Area contaminants uphill into

Lake Okeechobee, a distance of some sixty feet. The

pumps do not add anything to the canal water; the:

simply move it through pipes. At full capacity, the pump

within the S-Z, 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 Wate

Management District operates the pumping station

Two oryanizations, the Iriends of the Kiverglade

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 Iiverylades) sought an injunction to force

the Water District to get a permit under the Clean Water

Act’s National Pollution Discharye 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 thi

pollution of Lake Okeechobee threatens its way of life

the Miccosukee Tribe joined on the plaintiffs’ side. The

United States, “on behalf of” the EPA and the Corp

joined on the defense side, as did the U.S. Sugar

Corporation. In an amended complaint, the plaintiff

added the Water District’s executive director as a

defendant

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 Fx parte Young doctrine. See Ex parte Young,

209 U.S. 123, 28 S. Ct. 441 (1908). It concluded that

operating the S-2, S-3, 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... fora 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.

iT.

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 eare 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, Inc.

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 entities

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 E'x 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 seek, 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 as

for the Water District.

Two-and-a-half weeks after oral argument, however,

we received a supplemental letter from attorney Nutt

in which, referring to himself in the third person, he

stated: “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 Executive Director through the fiction of Young are

the same as the remedies available as [sic] against the

District were it not immune. They are not.” The belated

letter is not helpful. As a seneral matter it is conceivable

that remedies available against the executive director

might not match those available against the Water

District, if it is not protected by the Eleventh

Amendment. But we are not dealing with a general

3. Counsel: In this case, all of the relief that [the plaintiffs]

wanted, they got.

Court: Alright, let me ask you this: Are you now

conceding to this Court that under Ex parte Young,

with the Director in, all of the relief that they are

now seeking they can obtain through the Director?

Counsel: Yes.

Court: Okay. (OA Trans., Jan. 16, 2009)

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 (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 III courts. Fila. Ass’n of Rehab. Facilities,

225 F.3d at 1216-17; see also B&B Chem. Co. v. United

States E'PA, 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. Cf. George E. Allen, The Law

10a

Appendix A

as a Way of Life, 27 (1969) (“The seales of justice without

the sword is the impotence of law.”’).

IT.

Having disposed of the Eleventh Amendment issue,

we turn now to whether the 8-2, S-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. § 1362(12).

It is undisputed that the agricultural and industrial

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. 15387, 1542-43

(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.‘

4. The permitting requirement does not apply unless the

bodies of water are meaningfully distinct. Miccosukee, 541 U.S.

at 112, 1248S. Ct. at 1547. The district court concluded that Lake

Okeechobee and the agricultural canals are meaningfully

distinct based on ten fact findings that it detailed at

considerable length. Our review of those findings is limited to

looking for clear error, see Anderson v. City of Bessemer City,

(Cont'd)

Appendix A

The district court decided that it is, but that decision

came before the EPA adopted its regulation. Our review

is de novo. United States v. DBB, Inc., 180 F.3d 1277,

1281 (11th Cir. 1999).

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.

v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 376, 126 S.

Ct. 1843, 1847 (2006) (stating that an undefined

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 International

Dictionary 24 (1998).

(Cont'd)

470 U.S. 564, 574, 1058S. Ct. 1504, 1512 (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 v. Harris

County, 529 U.S. 576, 587, 120S. Ct. 1655 (2000) (“Interpretations

such as those in opinion 'etters ... do not warrant Chevron

style deference.”). Applying Skidmore v. Swift & Co., 323 U.S.

134, 140, 65S. Ct. 161 (1944), we find the EPA’s informal view of

the term “meaningfully distinct” unpersuasively narrow.

12a

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, 1248. 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.

In 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 Unlimited, Inc. v. City of New York

(Catskills 1), 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, Inc. v. City of New York (Catskills [1), 451

I3d 77, 83 (2d Cir. 2006) (concluding that “[t]he City

also reasserts the unitary-water theory of navigable

waters. Our rejection of this theory in Catskzlls J,

however, is ... not undermined” by Miccosukee, 541

l3a

Appendix A

U.S. 95, 124 S. Ct. 1537); Dague v. City of Burlington,

935 F.2d 1843, 1354-55 (2d Cir. 1991) (rejecting the idea

that pollutants are ‘added’ only on first entry into any

navigable water); Dubois v. U.S. Dep’t of Agric., 102 F.3d

1273, 1296 (1st Cir. 1996) (“[T]here 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, 1248S. 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 1364, 1368

(llth 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, 124 S. Ct. at 1547. Parts of

decisions that are vacated and have not been reinstated

“have no legal effect whatever. They are void.” Uniied

States v. Sigma Intl, Inc., 300 F.3d 1278, 1280 (11th Cir.

2002) (en banc). 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

F.2d 1436, 1440 (11th Cir. 1987).

l4a

Appendix A

In Miccosukee, 280 F.3d at 1367, we addressed

whether the law required an NPDES permit before

polluted water could be moved through the S-9 pump

from some particular Everglades canals into a water

conservation area. In a footnote, we declined to adopt

the unitary waters theory. /d. 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 source—the pollutants would have been added to

the receiving body of water.” /d. at 1368. For that

proposition we cited Catskill J, 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 distinct 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, 124 S. Ct. at 1547.

In sum, all of the existing precedent and the

statements in our own vacated decision are against the

|Sa

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.

The EPA’s new regulation, which became final on

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.

loa

Appendix A

NPDES Water Transfers Rule, 73 Fed. Reg. 33,697-708

(June 13, 2008) (codified at 40 C.E.R. § 122.38(i)).

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 8. Ct. 1730, 1734 (1996), and United

States v. Morton, 467 U.S. 822, 835 n.21, 104 S. Ct. 2769,

2776 n.21 (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 similar lawsuits. See Barnhart v. Walton, 535

U.S. 212, 221, 122 S. Ct. 1265, 1271 (2002). Nor does 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 i:

not a basis for declining to analyze the agency’

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 expressed intent of Congress.”);

id. at 844, 104 8S. Ct. at 2782 (“[A] court may not

substitute its own construction of a statutory provision

for a reasonable interpretation made by the

administrator of an agency.”); Sverra 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

ippendix

an ambiguous statute.’). In other words, there must bi

two or more reasonable ways to interpret the statute,

and the regulation must adopt one of those ways. Those

two requirements are obviously intertwined. Se:

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 2&

percent of them the inquiry was collapsed into the single

question of whether the interpretation was reasonable)

The Friends of the Everglades’ position 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 knergy, 307 F3d 1800, 1812 (11th

Cir. 2002) (finding that, because “using traditional tool:

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 982-83, 1258. 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

reasonapnle inte rpretat ati oT if ine true conf!

most of our discu lO] cenvel mn whethnet!

Wistrict, arguing tor ambiguity, throw U V (

Wildlife Federation v. Consumer Power Co 2h),

BotLn Tel piten everal decision ] rne

5SO (6th Cir. 1988), and National Wildlife Fed

Gorsuch, 693 F.2d 156 (D.C. Cir. 1982). In the

the courts concluded that the “discharge of a pollutant

language in the Clean Water Act wa ambiguous ane

leferred to the IEPA view that dams did not ade

pollutants, which meant that no NPDES permits wert

necessary. S62 I’ 2d at 584-85; 693 F.2d at 183. The le

Lnose case addre ed. h Vy ¢ eP] Vere nierent irom!

e belore u

in Gorsuch t!} National Wildlife kederation sus

the EPA for failing to require NPDE> permits for dam

693 F.2d at 161. The man-made dams and their re

rVQOw.

caused change n the water's temperature, nutrient

loads, and oxygen content, and the affected water wa

then released through the dams into the rive!

ld. The EPA gave two reasons why no permit wa

required: (1) the changes caused by the dams we

pollutants; and (2) even if they were, releasing

‘re not

waler

through a dam did not add those pollutants to the water,

because the water would have reached the down:

tream

river anyway, and its passage through the dam did not

change it. /d. at 165. The D.C. Circuit concluded that

neither the language of the st it r |

history conclusively supported eithe ch

about what “discharge of a pollutant 1 i!

circumstances of that case, so the court def

Ky PA's position.” /d. at 175, 183

In doing so,

tne (707 i(} 1} " eptle

position that colder water and changes tn it

dissolved nutrient content were not pollut

ld. at 174. That rendered irrelevant v

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heir opinion ay, Judicial decisions cannes

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are announced.’ ): lU/nited State

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court also could not have decided whether tl

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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.” Jd. 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 pollutants

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 case. 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

2la

Appendix A

between meaningfully distinct water bodies.’ The fact

that those decisions found the statute ambiguous as

applied to different factual situations is of little help to

the Water District. See Barnhart v. Sigmon Coal Co.,

534 U.S. 438, 450, 122 S. Ct. 941, 950 (2002) (explaining

that the inquiry as to whether a statute is ambiguous is

undertaken “with regard to the particular dispute in

the case”); United States v. Santos, U.S. _, 1285S.

Ct. 2020, 2024 (2008) (noting that “context gives

meaning” with regard to the circumstances under which

a statute is ambiguous). Context means a lot.

The Friends of the Everglades, arguing against

ambiguity, pitch us other decisions. See, e.g., Catskills

I, 273 F.3d at 481; Catskills IJ, 451 F.3d at 77;

Miccosukee, 280 F.3d at 1367, vacated, 541 U.S. at 112,

1248. Ct. at 1547; Dubos, 102 F.3d at 1273. They argue

that all of the courts of appeals that have addressed the

issue have found that “any addition of any pollutant to

navigable waters” includes moving polluted water

between meaningfully distinct water bodies. That

statement depends, however, on what one means by “the

issue.” Fach decision the Friends of the Everglades rely

on addressed which interpretation of the statutory

language was most plausible or preferable. Because

they all came out before the EPA’s new regulation went

into effect, none of those decisions addressed the issue

before us, which is whether the EPA's interpretation of

the statutory language is reasonable, even if we mignt

6. See supra p. 11, n.2.

22a

Appendix A

prefer another one. Deciding how best to construe

statutory language is not the same thing as deciding

whether a particular construction is within the ballpark

of reasonableness. See Brand X, 545 U.S. at 980, 125 S.

Ct. at 2699 (“Chevron requires a federal court to accept

the agency’s construction of the statute, even if the

agency’s reading differs from what the court believes is

the best statutory interpretation.”); Shotz v. City of

Plantation, 344 F.3d 1161, 1178 (11th Cir. 2003)

(observing that “in the absence of an administrative

interpretation,” a court must impose its own

eonstruction on the statute).

Still, the Friends of the Everglades urge us to infer

from the opinions in those other cases that the courts

believed the Act’s language unambiguously requires a

permit in these circumstances, and they argue that we

should be persuaded by that inference. In the Catskills

cases, the Second Circuit held that pumping polluted

water from the Schoharie Reservoir into the Esopus

Creek required an NPDES permit. Catskills 7, 273 F.3d

at 489. Those water bodies were hydrologically

connected; they both flowed into the Hudson River. But

because of directional flow and gravity, waters from the

reservoir “under natural conditions . . . would never

reach Esopus Creek.” /d. at 484. The Second Circuit

stated that “[nJo one can reasonably argue that the

water in the Reservoir and the Esopus are in any sense

the ‘same.’” Jd. at 492.

The Second Circuit then brushed aside the EPA’s

informal opinion that no permit was required. The court

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 77 that court

confirmed its holding. In doing sv, 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. Jd. 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. 273 F.3d at 490

(“If the EPA’s position had been adopted in a rulemaking

or other formal proceeding, deference of the sort

applied by the Gorsuch and Consumers Power courts

might be appropriate.”’). 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 1869. We pointed out that we

could “ascertain no EPA position applicable to S-9 to

which to give any deference, much less Chevron

deference.” Jd. 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 distinct 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 Dubots case is similar to Miccosukee and the

Catskills cases. In Dubois the First Cireuit 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.15, 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. Jd. 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 8. 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 effect.”). 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 v. United States EPA, 529 F.3d

1049, 1063 (11th Cir. 2008); Robinson v. Shell Orl Co.,

519 U.S. 337, 341, 117 S. Ct. 843, 846 (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 ot any

pollutant” subject to several exceptions, one of which is

where an NPDES permit is obtained. 33 U.S.C. §§ 1811,

8. 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 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. § 1362(12). “Navigable waters,” in turn, is

defined as “the waters of the United States.” 33 U.S.C.

§ 1862(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 water's 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 any 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” can collectively refer

27a

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.

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, 125

S. Ct. 460, 467 (2004) (“A provision that may seem

ambiguous in isolation is often clarified by the remainder

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, 1382, 120 8S. Ct. 1291, 13800-

01 (2000) (“The meaning—or ambiguity—of certain

words or phrases may only become evident when placed

in context.”). The Water District argues that the 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 a.1y point

source.” 33 U.S.C. § 1362(12). According to the Water

District, the conspicuous absence of “any” before

“navigable waters” in § 1362(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, Fach Containing Six Jars of Jam v. United

States, 340 U.S. 598, 596, 71 S. Ct. 515, 518 (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, 91 S. Ct. 423, 429 (1971) (“{1]t is for

Congress, not this Court, to rewrite the statute.”);

Nguyen v. United States, 556 F.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, Inc., 508 F.3d 1012, 1017

(llth Cir. 2007) (“We are not empowered to rewrite

statutes.”). Besides, if the meaning of language is plain,

no alteration should be necessary to clarify 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

“the pollution of any navigable waters,” 33 U.S.C.

§ 1254(a)(3), and referred to the EPA’s dissemination of

information about changes in the flow “of any navigable

waters.” 33 U.S.C. § 13814(f)(2)(F). Other water

protection statutes also use the term “any navigable

water[s].” See, e.g., 38 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

use of the unmodified term “navigable waters” in

§ 1862(12) (or the use in its definition, “the waters of

the United States,” at § 13862(7)) means the waters

collectively. See Delgado v. United States Att’y Gen., 487

3d 855, 862 (11th Cir. 2007) (“[W here Congress knows

how to say something but chooses not to, its silence is

controlling.”) (quotation marks omitted); DirecTV, Inc.

v. Brown, 371 F.3d 814, 818 (11th Cir. 2004) (“[WJhen

Congress uses different language in similar sections, it

intends different meanings.”) (quoting /raola & CIA,

S.A. v. Kimberly-Clark Corp., 232 F.3d 854, 859 (11th

Cir. 2000).

40a

Appendix

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. § 1813(e)(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 83 U.S.C.

§ 13862(12) (“Any addition of any pollutant to navigable

waters ...”). See also Miccosukee, 541 U.S. at 106-07,

124 8S. Ct. at 1544 (citing § 13813(c)(2) and stating that

“several NPDES provisions might be read to sugyest 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.

The “broader context of the statute as a whole” doe:

not resolve the ambiguity. Robinson, 519 US.

117 S. Ct. at 846; Koons Buick, 548 US

sla

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 meaning:

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 thi:

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

lron & Steel Inst. v. HPA, 115 F.3d 979, 990 (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 apainst 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 ...”.”S. Conf. Rep. 92-1236

9. That statement appears intended to extend the

application of the Clean Water Act to cover as much water a

the Commerce Clau e would allow S04 (jt neratly Rapano 41

Cont'd

ippe ‘i fi ‘

(1972), as reprinted wn 1972 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 excepuon tothe NPDES permitting

program for pollutants that come from other navigable

water

lirst, they assert that the permitting program itsel!

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

tate water quality standards, the government alte

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, 1245. Ct. at 1544; 33 U.S.C

1313(d). Given the permitting requirement’s role in

maintaining individualized water quality standards, the

friends of the Everglades argue that it would make little

ense to allow uncontrolled, un-permitted pumping

between navigable waters that could have different

quality standards. Lake Okeechobee, for example,

classified as drinking water under the state water quality

tandards. Pumpiny dirty agricultural canal water into

the lake makes it more difficult to meet the lake’s quality

tandards. ‘lo allow such pumping without a permit

tends to undermine the goals of the NPDES proyram

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, |

an unreasonably narrow reading of the Act

second, the Friends of the Everglad aurpue that

reading the statute to protect only the navigable water

as one unitary whole could lead to results even more

absurd than pumping dirty canal water into a reservon

of drinking water. If an “addition Lo navigable water

occurs only at a pollutant’s first entry into navigable

waters, and never apain when it is transferred to a

different water body, then the NPDIcS rovram Lr

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 pristin

One

These horrible hypotheticals are frightening enough

that we might ayree with the lriends of the Iiverglade

that the unitary waters theory does not comport with

the broad, general goals of the Clean Water Act. Se

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 statute

not congressional purposes.” /n re lledrick, 524 bd

1175, 1188 (lith Cir. 2008); Oncale 4 SuUnNdAOwWNeE?)

Offshore Serv: inc., 5238 U.S. 7b, 79, 11% Ct. 0%

1002 (1998) C[ IT ]t is ultimately the provisions of our law

rather than the principal concern Ol oul legri lator |

which W are voverned.” Wa al Sowlhen /Y f

34a

Appendix A

Sorrell, 549 U.S. 158, 171, 127 8S. Ct. 799 (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 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. (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 is

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 Mississippi

River creates an annual hypoxic ‘dead zone’ in the Gulf

of Mexico that is nearly the size of New Jersey); Oregon

Natural Desert Ass'n v. United States Forest Serv., 550

F.3d 778, 780 (9th Cir. 2008) (stating that the “disparate

treatment of discharges from point sources and nonpoint

sources is an organizational paradigm of the [Clean

Water] Act”). Not only are ordinary non-point sources

outside the NPDES program, but 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. 33 U.S.C.

§ 13862(14).

—

Appendix A

The point is 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-offs to create a huge “dead zone” in

the Gulf of Mexico. Yet we know the Act does that. What

this illustrates is that even when the preamble to

legislation speaks single-mindedly and espouses lofty

goals, the legislative process serves as a melting pot of

competing interests and a face-off of battling factions.

What emerges from the conflict to become the

enactment is often less pure than the preamble

promises. The provisions of legislation reflect

compromises cobbled together by competing political

forces and compromise is the enemy of single-

mindedness. It is not difficult to believe that the

legislative process resulted in a Clean Water Act that

leaves more than one gap in the permitting

a it enacts. Wyeth v. Levine, U.S. __,

1298S. Ct. 1187, 1215-16 (2009) (Thomas, J., concurring)

“Legislators : may compromise on a statute that does

not fully address a perceived mischief, accepiing half a

loaf to facilitate a law’s enactment.”) (quotation omitted);

Bd. of Governors vw. Dimension Fin. Corp., 474 U.S. 361

373-74, 106 S. Ct. 681, 688-89 (1986) (“Application of

‘broad purposes’ of legislation at the expense of specific

provisions ignores the complexity of the problems

Congress is called upon to address and the dynamics of

legislative action. ...the final language of the legislation

may reflect hard-fought compromises.”).

36a

Appendix A

As the Supreme Court once said, “[a]fter seizing

every thing from which aid can be derived we are left

with an ambiguous statute.” United States v. Bass, 404

U.S. 336, 347, 92 S. Ct. 515, 522 (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 [any] 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.”

United States v. Acosta, 363 F.3d 1141, 1155 (11th Cir.

2004) (quotation marks omitted).

Having concluded that the statutory language is

ambiguous, our final issue is whether the EPA's

regulation, 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 U.S. at 843,

104 8. Ct. at 2782. In making that determination, we

“need not conclude that the agency construction

was... the reading the court would have reached if the

question initially had arisen in a judicial proceeding.”

Id. at 837, 843 n.11, 104 8. Ct. at 2782 n. 11; see also 2d.

at 844, 104 S. Ct. at 2782 (“{[A] court may not substitute

its own construction of a statutory provision for a

reasonable interpretation made by the administrator of

an agency.”). Because the EPA’s construction is one of

Appendix A

the two readings we have found is reasonable, we cannot

say that it is “arbitrary, capricious, or manifestly contrary

to the statute.” Jd. at 844, 104 8. 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.

§ 1862(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 rescinds 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

plaistiffs’ cross-appeal from the dismissal of the Water

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 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; 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 Cénelusions of Law | D.F. 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 Environmentai Protection

for a NPDES permit forthwith.

(3) The Court shall retain jurisdiction, including to

the extent allowable in light of tne 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

4la

APPENDIX C — ORDER ON REMEDIES 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; et 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, Ine.

(“FADE”), and Florida Wildlife Federation’s (“FWF|[’s]”)

Memorandum on Injunctive Relief and Remedies [D.E. 649];

Intervenor-Plaintiff, the Miccosukee 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; Intervenor-Defendant, U.S. Sugar’s

Motion to Strike Plaintiffs’ Exhibits to Plaintiffs’

Memorandum on Injunctive Relief and Remedies

[D.E. 665], filed on April 18, 2007; and Defendant, the

SFWMD’s Motion for Certification Under § 1292(b)

[D.E. 689], filed on June 4, 2007. The Court has carefully

considered 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

S-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

(“U.S. Sugar|'s]”) Memorandum 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

¢xecutive Director to obtain a NPDES permit for the

SFWMD’s backpumping activities. (See 2d.).

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 Wehle, 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

voluntarily 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 Ea parte

Young, 209 U.S. 123 (1908).

44a

{ppendix ¢

compliance with that judgment.’ (See S'FWMD 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

l. 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.8d 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.i. 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 trial, 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 zd. at 3)

ippendix ¢

2005). Because issuance of an injunction is an equitable

remedy, the Court must also balance the hardship:

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 [ssuance of Injunction 1s Warranted Her

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 SkKWMD’:

Kxecutive Director apply for a NPDES permit

a. /rreparable Harm

Plaintiffs contend that they established at trial that

irreparable harm will result if their requested relief |

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 seriou:

injury to humans and death to wildlife. (See Pl:

4. The Cour! adopts in this Order the Findings of Fact and

Conclusions of Law set forth in the December 11 Order

ippendix ¢

Remedies brief |D.h. 649) at 4-5). In addition, Plaintiff

contend that the trial testimony established that

backpumping and disinfection create toxic disinfection

byproducts that can sicken humans. (See id. at 5).

‘inally, 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

tr) Balance QO] quatre (Li i Paibi

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 for a NPDES permi!

5. The SFWMD and Wehl ert that the issuance of a

Injunction is unnecessary because the December 11 Order made

clear that the SFEWMD must have a NPDES permit for it

backpumping operations, an issuc that was previously unclear

and the Sk WMD) has every intention of complying with the law

Ppp madix (

‘ Inclusion of Deadline mn. frnounet1o%

Plaintiffs contend that the Court should place a

pecific 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 thi

case, and that an order requiring application for such a

permit “forthwith” will adequately address Plaintift

claim

B. Issuance of Interim Injunctive Relief

In their Remedies Brief, Plaintiffs assert that the

Court should hold hearings reyarding whether to orde:

interim relief, which could include, inter alia, requiring

(1) the SF WMD and/or its k:xecutive Director to report

to the Court on backpumping Cpl ode '(2) developme Ht

of a new pumping protocol; (3) preparation of ar

analy is of the effect of the Bolles Canul eXpanslo

(4) construction of additional in-citv and on-farm or! Le

(ont ad

as interpreted by the Court CC SEWMD Remedies Br at

25). Having found that Plaintiffs are leyally entitled to the

issuance of an injunction, the remedy they souyht in tne

complaint , tne under ned nol pel uHded now by the

argument that the Court should not enter an injunction becuti

the Sl WMD's Iixecutive Director will voluntarily comply wi

trie ryipodl auiolr a ne Court iternre mig)

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.

[D.E. 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 to 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 SFWMD 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.

49a

Appendix C

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 immediately

pursue their appeals of the Court’s conclusion that the

CWA requires the SFWMD 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 process

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 Final 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

relief are therefore denied.

50a

Appendix C

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 Protection, as an

InvoluntaryPlaintiff [D.E. 653], Plaintiffs and

Intervenor-P aintiff 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.E. 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 DEP Secretary or the Florida

Department of Environmental Protection will attempt

to delay issuance of a permit to the SFWMD. Should

such a delay occur or should another reason for joinder

arise, Plaintiffs may renew their motion.

D. Dismissal of the SFWMD

In their brief regarding remedies, the SFWMD and

Wehle request that the SFWMD 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

Il. 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 jurisdiction 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

Environmental 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 SFWMD’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.,

Plaintifis,

VS.

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT, et 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

Water Act (“CWA”), 33 U.S.C. § 1251 et seq., 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. § 1865(a),’ and

1. Section 1365(a) provides, in part, that

any citizen may commence a civil action on his own

behalf —

(1) against any person (including (i) the

United States, and (ii) any other governmental

(Cont'd)

55a

Appendix D

federal question jurisdiction under 28 U.S.C. § 1331. The

case was consolidated with Flonda Wildlife Federation

v. So. Florida Water Mgmt. Dist., Case No. 02-80918-

Civ (see Dec. 9, 2002 Order [D.E. 39]), and the latter

case was accordingly closed. The Florida Wildlife

Federation (“FWF”) 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. (Comp.

[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]. In support of intervention,

(Cont'd)

instrumentality or agency to the extent permitted by

the eleventh amendment to the Constitution) who is

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 is

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 title.

2. The undersigned subsequently granted the City of South

Bay, Florida’s Motion to Withdraw. [D.E. 212].

56a

Appendix D

U.S. Sugar asserted that it has substantial sugar cane

growing and harvesting operations in the S-2 and S-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

Environmental Protection Agency (“EPA”), was granted

permission to intervene as a Defendant. |D.E. 263]. The

United States maintained it had a compelling interest

57a

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-8, and S-4 pump stations were

part of the Central and South Florida Project. As for

the EPA, that agency administers the NVYDES

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, 2008.

[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. Florida Wuter Mgmt. Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95 (2004).

58a

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 seq.; (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 al! 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

If. 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, 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

Everglades) was an immense and vast wetland referred

to by Native Americans as “grassy water.” (See Joint

Pretrial Stip. (D.E. 536], Attach. 5B 11 6). The “grassy

water” area encompassed some three million acres.

(See id.). Today, the Everglades is less than half of its

pre-drainage size. (See id., 1 48). Prior to extensive

drainage operations, Lake Okeechobee had higher

60a

Appendix D

water levels and extended further south and west than

it does today. (/d., 11 39).°

Maps, surveys, and accounts of the natural

conditions of the southern rim of the Lake describe a

sandy-bottomed lake with water grasses growing 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. (7T'rial Tr. Jan. 9, 2006, 189:8-18). Short

tributary rivers flowed from the Lake’s southern

forested rim. (Plain. Hx. 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. Ea. 60).

Lake Okeechobee appears as a dominant feature on

maps of Florida dating back at least 250 years. (7'rial

Tr. Feb. 14, 2006, 58:22-25; see also Def Ea. 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, 8-3, and S-4 pump

stations, the stations at issue in this litigation. (See Joint

Pretrial Stip., Attach. 5B 135; 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 T'r. Jan. 9, 2006, 157:10-168:21; 7'rial

Tr. Feb 14, 2006, 58:12-66:11; Plain. Eas. 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. Fx. 220), and by John W.

Newman in 1910. (Def Ex. 16D). It was officially surveyed

by the State of Florida from 1914-17 (the “EF. C. Elliot

Survey”). (Plain. Ex. 55). The conclusions of the IC, 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.

Kx. 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. 16H1, 16H 2,

16E3). These photographs depict a custard apple forest

along a dry southern shoreline. (See Trial 7'r. Jan. 9, 2006,

170:16-174:14; Plain. Was. 16281, 1622, 1618).

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. Ea. 16D). It was

constructed by Richard Bolles, an early Everglades land

speculator. (7'rial 7'r. 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

“(f]rom 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.).7 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 Ex. 218,

bp. lak

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 zd., 90:8-12,

91:7-10). 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 like a thorough

investigation as to what is now known in the region in question.”

(Def E'x. 206, p. 6).

63a

Appendix D

their natural states. (See id., 89:21-25; Trial Tr. Feb. 18,

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.

18, 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 {1 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 940; 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

1. Karly 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 Tr 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, 95:20-238).

To further the drainage activities, canals were

constructed connecting the Lake to the Gulf of Mexico.

(Joint Pretrial Stip., Attach. 5B 91 10).° The overarching

goal of the canal construction was to move water from

Lake Okeechobee to tidal waters. (See zd.). The theory

was that if Lake Okeechobee could be drained, then the

Everglades would eventually dry out. (See Joint

Pretrial Stip., Attach. 5B 191 9, 10; Def Hx. 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 110). The

8. Two canals were constructed in the 1880s. One canal,

named the 3 Mile Canal, connected Lake Okeechobee to Lake

Hickpochee. (Trial Tr Feb. 13, 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).

6Sa

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 south and east of

the Lake, and to foster navigation. (See Joint Pretrial

Stip., Attach. 5A 9 10, 19). To further the effort, the

Everglades Drainage District (established in 1913)

constructed hundreds of miles of small drainage canals

throughout the Everglades. (See id., Attach. 5B 19 10,

12).

The early private and public drainage canals were

incapable of controlling flooding. (See Joint Pretrial

Stip., Attach. 5B 7 13). Problems with flooding reached

an apex in 1926 and 1928, when hurricanes killed over

2,500 people living in towns just south of Lake

Okeechobee. (See 7d.; Trial Tr Feb. 10, 2006, 95:12-15;

Def. Ex. 213, p. 7; Def Ex. 203, pp. 8-9). Congress

responded to the hurricanes of the 1920s by authorizing

construction of the Dike. (See Trial Tr Feb. 8, 2006,

204:21-23). The initial authorization contemplated

building a substantial dike system on the southern shore

of Lake Okeechobee and a smaller dike system on the

northern shore of the Lake. (See id., 204:23-205:1). By

1937, construction along the southern shore was

substantially completed. (See id., 205:2-5).

The Dike, however, proved incapable of adequately

controlling flooding. Hurricanes in the 1940s caused

Lake waters to overflow the newly constructed Dike,

flooding the surrounding areas and severely damaging

the Dike in the process. (See Trial Tr Jan. 13, 2006,

66a

Appendix D

59:12-19; Trial Tr, Feb. 8, 2006, 205:6-10). In 1947 and

1948, ninety percent of southeastern Florida, from

Orlando to the Keys, was flooded. (See Joint Pretrial

Stip., Attach. 5B 113). Indeed, after the 1947 hurricane,

there were reports of many Florida residents being

forced to live on the second floors of their homes for up

to nine months. (Trial Tx Jan. 18, 2006, 59:15-16).

In addition to the flooding problems, the drainage

of Lake Okeechobee and the Everglades produced

other unintended consequences. When the areas

surrounding Lake Okeechobee were drained, the soils

dried out and thousands of acres of land were destroyed

by fires. (See Joint Pretrial Stip., Attach. 5B 114). The

fires caused loss of soil material that had taken hundreds

or thousands of years to accrete. (Trial Tr. Jan. 19, 2006,

169:5-7). Fires dirtied the air to such an extent that

health warnings were issued in Dade County.’ (Trial Tr.

Feb. 10, 2006, 112:13-15).

Uncontrolled drainage caused additional problems

through the lowering of the water table. (See Joint

Pretrial Stip., Attach. 5B 1111). The lowered water table

allowed the ocean saltwater to intrude in areas where

fresh water had previously been. (See 7d.; Trial Tr. Jan.

20, 2006, 96:16-97:5). Saltwater intrusion contributed to

the destruction of well fields and lands along the east

coast of Florida. (See Joint Pretrial Stip., Attach. 5B

111).

9. Dade County has since been renamed Miami-Dade

County.

67a

Appendix D

2. C&SF Project

In the 1980s, the State developed a comprehensive

plan for flood control and water supply, known as the

“re-watering plan.” The plan dedicated the northern

portion of the Everglades (what has become known as

the EAA) for reclamation, and dedicated the southern

portion of the Everglades (what have become the Water

Conservation Areas) for water supply and storage to

protect and provide water supply to the lower east coast

of Florida, from West Palm Beach to Homestead.

(See Trial Tr. Jan. 20, 2006, 114:13-115:18). As concerns

arose over the health of the Everglades and the inability

of the “re-watering plan” to address the problems, the

Central and South Florida Project for Flood Control and

Other Purposes (“C&SF Project” or the “Project”) was

adopted. (See Joint Pretrial Stip., Attach. 5A 1 37).

Congress authorized the C&SF Project in 1948."

(See id., Attach. 5B 9115; Trial Tr Jan. 18, 2006, 60:2-3,

14-16; Trial Tr. Jan. 18, 2006, 80:17-19; Def Eas. 1, 205).

The C&SF Project is a multi-purpose project that

provides flood control; water supply for municipal,

industrial, and agricultural uses; water supply for the

Everglades National Park; protection from saltwater

intrusion; and protection of fish and wildlife resources."

10. For a variety of reasons, several components of the

C&SF Project that were originally planned have not been

constructed. (See Trial Tr. Jan. 20, 2006, 101:1-9).

11. Congress stated the purposes of the C&SF Project, in

relevant part, as follows:

(Cont’d)

68a

Appendix D

(See Joint Pretrial Stip., Attach. 5B 1.17; Trial Tr. Jan.

13, 2006, 149:23-150:23; Trial Tr. Jan. 18, 2006, 80:10-

15; Def Ex. 232, p. i; Def Ex. 205, pp. 2-3, 50). Waste

disposal is not one of the designated purposes of the

C&SF Project. (See Trial Tr. Jan. 13, 2006, 150:24-153:3;

Trial Tr. Jan. 20, 2006, 118:20-25))."

The C&SF Project covers an area of approximately

12,000 square miles. (See Trial Tr. Jan. 18, 2006, 80:6-

7). Water is managed through the use of water control

(Cont'd)

Construction program. The comprehensive plan is

a long-range plan for the control and use of water

resources of most of central and southern Florida.

* * *

The flood problems of central and southern Florida

are closely interrelated with the development of

water and land resources of the entire area; this

report therefore considers all related problems of

water control and use.

* * +

A long-range plan of this kind for flood protection

and water quality is urgently needed now, so that

development of the region can proceed in an orderly

manner which will preserve its resources of water

and land for future generations.

(Def Ex. 205, pp. 14, 45, 58).

12. The water

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