# Petition for Writ of Certiorari — Friends of the Everglades v. South Florida Water Management District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2383%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1082 ## Text Supreme Court, U.S. ert en WA 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, v. 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. dL 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) we ad — _ A — we - 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. 2 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. - o 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 6 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)). 7 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. 8 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. 9 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. 10 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 1] 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 14 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, 15 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 16 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, 17 “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 18 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 19 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. 20 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. 21 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, 23 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 2A 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. ZO 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. 29 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,” 30 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 ol 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) OZ 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. od 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.). 34 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 la APPENDIX A— OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, DATED AND FILED JUNE 4, 2009 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 07-138829 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 6a Appendix A In early 2006 there was a two-month bench trial in the United States District Court for the Southern District of Florida. See Miccosukee Tribe v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1192-94 (11th Cir. 2009) (describing that trial). After the trial, the district court decided that the Water District was immune under the Eleventh Amendment and dismissed it from the case, but the court kept the executive director in the lawsuit under the 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 Ta 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 8a 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) Ya 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) ia 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). A. The Water District’s central argument is based on the “unitary waters” theory. That theory is derived from the dictionary definition of the word “addition,” which is not defined in the Act. See generally S.D. Warren Co. 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. b. 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 changed wate} was he ing ‘added LO} ral A movement through adam. |) ny event moving Irom a it. because the } ue of whether the hody of watertoa different body ¢ rive! ts of tr tne tae iT) (Tl to the navigable waters, the Gorsucl Mui have decided that issue. Watt BellSouth Tne 316 kd 1208, 1207 (11th Cir, 2008 heir opinion ay, Judicial decisions cannes beyond the facts of the case n which tho are announced.’ ): lU/nited State Lou 1319, 1321 (11th Cir. 2000) (same). It follow court also could not have decided whether tl language was ambiguou regarding Lat | the one before us. Languaye can be ibigru respect but not in othe) ». Grorsuch predat Chevron wb applied imilar level of deference ce 698 | if 1] v' that EPA's interpretation reasonal rot ince conyre ional intent, and entitled to vr t « rey It mu L be upne ld llard. i Te) | ‘ . its ime rive | Pore ts ro ane Hut I L Col ld Telcom (“Whate AKe 1 ? GeCISIO! 217 | : Poa Liye e® SLATULO?) le Vvhnicn pul I} | ‘ he c*r'e j | Hit I 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. b. The context in which language is used is important. See Robinson, 519 U.S. at 341, 117 S. Ct. at 846; Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60, 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). — Sa 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). D. 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 Lb © on Eleventh Amendment grounds. REVERSED in part and DISMISSED in part. 39a APPENDIX B — FINAL JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, DATED 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 partie [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2383%3A01. Public record. Not legal advice.