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

“us Nos. (Y, and QO) Nile cou

6654-22-20

Sn The | OFFICE OF THE CLERK |

Supreme Court of the Anited States

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,

Petitioner,

Vv

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

CAROL WEHLE, EXECUTIVE DIRECTOR, UNITED

STATES OF AMERICA, U.S. SUGAR CORPORATION,

Respondents.

And

FRIENDS OF THE EVERGLADES, ET AL.,

Petitioners,

V.

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT, ET AL.,

Respondents.

.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

THE FLORIDA DEPARTMENT OF AGRICULTURE

AND CONSUMER SERVICES, AMICUS CURIAE,

IN SUPPORT OF RESPONDENT, SOUTH FLORIDA

WATER MANAGEMENT DISTRICT

.

JOHN W. COSTIGAN*

Assistant General Counsel

CAROL A. FORTHMAN

Senior Attorney

Florida Department of Agriculture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399-0800

850-245-1000

costigj@doacs.state.fl.us

Counsel for DACS

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2631

TABLE OF CONTENTS

Page

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BRCOTORE OF AMICUS Curie ....crcrccccccessecsccccssesececeses l

Reason to Grant Petition.................cccccececeeeee eee ees 4

PROUMINATY BtAtOMONt.........6csvcccsssccccccessseccesseess 4

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Il. EPA’s Current Interpretation Concerning

Water ‘Transfers in its Rule Is the Ap-

propriate Interpretation under the Text,

Policy and Cooperative Federalism of the

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TABLE OF AUTHORITIES

Page

CASES

Catskill Mts. Chapter of Trout Unlimited v.

New York City, 451 F. 3d 77 (2d Cir. 2006)............. 13

Chevron v. Natural Resources Defense Council,

467 U.S. 837, 104 S.Ct. 2778 (1984)........... ii, if, io

Food and Drug Administration v. Brown &

Williamson Tobacco Co., 529 U.S. 120, 120

ee te ED ay cceacs on nacsatadnsindvesascenxsreecnpsbevtions 9,13

South Florida Water Management District v

Miccosukee Tribe of Indians, et al., 541 U.S.

eh ee a ED Oe hina cennnuasenccsonsececettccasereva@y &e

STATUTES AND RULES

U.S. STATUTES

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PL, 108-BBD, © DODW) ...c-.n<sccececcscccecsoessscesessncsesssesesseseeetax 8

PL 106-541, Title VI, § GOL.....cccccccccceccecececsececeseeeeeseeees 8

PL 106-541, Title VI, § GOL(DXA)(A)...cccecccccceceeeeeeeeees 13

PL 106-541, Title VI, § 601(b)(2)(A)G-X) -.eeeceeeeeeeeeeees 13

PL 106-541, Title VI, §§ 601(h)(5)(A) and (B)........00---. 9

U.S. REGULATIONS

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TABLE OF AUTHORITIES — Continued

Page

FLORIDA CONSTITUTION

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FLORIDA STATUTES

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Chapter 6456, Laws of Florida, Acts of 1913............... 6

OTHER MATERIALS

Final Report, Lake Okeechobee Technical

Advisory Committee, March 1990. (LOTAC II)........ 7

Florida Department of Environmental Regula-

tion Final Report, Lake Okeechobee Tech-

nical Advisory Committee, August 1986,

US. I 0 er I OY can vinsncs scncnavneskonccessuennscsecins 7

F.T. Izuno, A Brief History of Water Manage-

ment in the Everglades Agricultural Area,

Univ. of Florida IFAS Extension Circular 815

SEARED slerna eC En MER RRPPESOITT 5 jar REP r on MMSE REE 6

Parker, Ferguson, Love, et al., Water Resources

of Southeastern Florida, USGS Water Supply

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INTEREST OF AMICUS CURIAE'

The Florida Department of Agriculture and Con-

sumer Services (“DACS”) under § 20.14(1), Fla. Stat.

(2010), is statutorily charged with the duty to “protect

the agricultural and horticultural interests of the

state” under § 570.07(13), Fla. Stat. (2010).°

The Florida Legislature has declared the pro-

duction of agricultural commodities in this state to

be a “large and basic industry that is important to

the health and welfare of the people and to the

economy of the state.” § 604.001(2), Fla. Stat. (2010).

The Legislature has further declared that it is im-

portant “that additional problems are not created for

growers and ranchers engaged in the Florida agri-

cultural industry by laws and regulations that

cause, or tend to cause, agricultural production to

become inefficient or unprofitable.” § 604.001(5), Fla.

Stat. (2010). Finally, under §§ 570.074-.075, Fla.

Stat. (2010), the DACS has an Office of Agricultural

Water Policy (““OAWP”) which was created for the

purpose of engaging in any matter “relating to water

' Counsel for amicus curiae has authored this brief in whole

and no other person or entity other than amicus, have made a

monetary contribution to the preparation or submission of the

brief. The parties were notified ten days prior to the due date of

this brief of the intention to file. The parties have consented to

the filing of this brief, and those consents have been submitted

to the Clerk of the Court.

* The head of DACS is the Commissioner of Agriculture

who, pursuant to Art. IV, § 4(f) of the Florida Constitution

supervises all matters pertaining to agriculture in the state.

2

policy affecting agriculture, application of such poli-

cies, and coordination of such matters with state and

federal agencies.” Agriculture is a vital part of Flori-

da’s heritage, economic foundation, and potential.

Florida has more than 47,000 farms, which grow

more than 280 different crops on a commercial scale

with a total production value of over $7.7 billion.

Agriculture’s impact on Florida’s economy is vast,

accounting for an annual total economic impact of

nearly $100 billion, and the industry supports ap-

proximately 767,000 jobs throughout the state.

The DACS’s participation in this matter flows

from its statutory duty to protect Florida agricultural

food products and the interests of all Florida citizens

involved in or affected by issues impacting the con-

tinued viability of agricultural operations in the

state. DACS has a direct interest in the outcome of

this case. Historically, and through the present,

Florida agriculture has relied on water management

systems to control water on agricultural lands. The

vast majority of these systems include structures that

can hold back, release or divert water. The specific

interest of DACS in this case is to ensure that

water management systems in Florida that protect

and enhance agricultural production are not unduly

disrupted.

While the Florida Everglades is the focus of these

particular cases, the impact on other areas of Florida

cannot be overstated. Florida is a relatively flat, high

water table state. For decades before the Clean Water

3

Act, often at the insistence of or actually constructed

by government, flood control structures have been

used to manage water quantity for agriculture, flood

protection and water supply.”

The South Florida Water Management District

(““SFWMD”) controls hundreds of pumps other than

the S-2, S-3 and S-4 pumps in this case that would be

affected by this ruling. Accordingly, resolution of the

question of the applicability of the CWA to water

transfers will impact the cost of producing crops

throughout Florida, and nationally.

DACS actively participates in the adoption of

Florida’s laws and rules relating to the development

and implementation of water quality standards,

including nutrient standards and methods for their

control. The DACS, through its Office of Agricultural

Water Policy, works closely with the Florida De-

partment of Environmental Protection (“FDEP”) and

other state, local, and federal agencies, as well as

environmental and other public interest groups, to

develop programs to address agricultural water

quality issues.

* Parker, Ferguson, Love, et al., Water Resources of South-

eastern Florida, USGS Water Supply Paper 1255 (1955).

4

REASONS TO GRANT PETITION

The Supreme Court should resolve the regulation

of water transfers and, based on the Clean Water

Act’s plain text, its policies, and its basis in coopera-

tive federalism, adopt the EPA’s current rule stating

that transfers of waters for purposes of flood control,

water supply and irrigation, are not subject to Na-

tional Pollutant Discharge Elimination System

(“NPDES”) permitting as the correct interpretation of

the Act.

PRELIMINARY STATEMENT

The Florida Department of Agriculture and Con-

sumer Services herein supports the SFWMD in its

acquiescence in Petitioners’ Petition for a Writ of

Certiorari. The Department takes this action because

the uncertainty deriving from the apparent decision

of EPA to revise its analysis of the applicability of the

NPDES to water transfers threatens the ability of

Agricuitural interests in the state to plan their im-

plementation of the Clean Water Act requirements.

This applicability of the NPDES permitting require-

ments to water transfers has been repeatedly liti-

gated. It appeared that the Eleventh Circuit had

resolved the matter until EPA informed the Circuit

Court that it intended to “revisit” the rule (40 C.F.R.

§ 122.3(1)) it adopted in 2008 and on which the Elev-

enth Circuit based its opinion.

+

5

ARGUMENT

I. Congress Did Not Intend that Transfers of

Water Be Subject to NPDES Permitting.

Under the cooperative federalism structure of the

Clean Water Act, the transfer of water from one water

body to another has been traditionally reserved to the

states." As a consequence, such transfers for the

purpose of flood control, water supply and irrigation

have not been required to obtain NPDES permits.

Most discharges that are subject to the NPDES

permitting program exist to dispose of wastewater

(treated or not). In those cases the pollutant content

has resulted from the actions of the discharger.°

In contrast, water transfers are designed to move

water for the purpose of flood control or allocation of

water supply. The transfer often may be reversed in

direction when needed. The transferring party does

* 33 U.S.C. § 1251(g).

* In South Florida Water Management District v. Mic-

cosukee Tribe of Indians, et al., 541 U.S. 95, 124 S.Ct. 1537 (2004),

this Court rejected the proposition that NPDES permits are not

required because the transfer of water does not add a pollutant

from a point source. In its discussion the Court stated that

under that interpretation, wastewater treatment plants would

not be covered by the NPDES program. This conclusion ignores

the fact that a wastewater treatment plant receives its influent

from an isolated and dedicated waste stream. After treatment,

the purpose of the discharge is to dispose of the treated water.

Thus the treatment plant is “adding” a pollutant. This is very

different from a transfer from one water body to another for the

purpose of flood control, water supply or irrigation.

6

not cause or contribute any pollutant on either “side”

of the transfer. Rather the transferring party is allo-

cating water for one of the purposes mentioned above.

The consequence of requiring the transferring party

to obtain an NPDES permit would transfer the re-

sponsibility for treatment to a party that has no

contro] over the quality of the water it transfers.

Historically, the Everglades system was a vast,

interconnected hydrologic system. At that time, it

could have been considered to be one water body.°

Major human intervention in Everglades hydrology

began in 1905. By 1927, the Everglades Drainage

District, authorized by the Florida Legislature,’ had

excavated over 400 miles of canals. By 1929, droughts,

floods and the deadly hurricanes of 1926 and 1928

had forced legislators to form the Okeechobee Flood

Control District and to issue additional bonds to gen-

erate funding for the completion of drainage projects.”

The drainage effort was successful in that water

levels were greatly drawn down. In 1945, during a

severe drought, the dry conditions led to soil subsi-

dence and peat fires. This was followed in 1947 by

100 inches of rain that fell in the region, flooding 90%

of South Florida. After enduring both the flooding and

* Parker, Ferguson, Love, et al., Water Resources of South-

eastern Florida, USGS Water Supply Paper 1255 (1955).

” Chapter 6456 Laws of Florida, Acts of 1913.

* FT. Izuno, A Brief History of Water Management in the

Everglades Agricultural Area, Univ. of Florida IFAS Extension

Circular 815 (1989).

7

damage from droughts, Congress authorized the

Central and South Florida Flood Control Project in

1948 to address the need to conserve water and

provide flood protection.” All of these early projects

authorized transfers of water based solely on need for

flood control, water supply and irrigation. Part of the

system included pumping of irrigation water from

agricultural canals into Lake Okeechobee. This was

the practice even before the construction of the Cen-

tral and South Florida Flood Control Project.” The

system of water conservation areas, levees, canals

and pumps, has been revised a few times since then,

but the basic structure remains. Today the SFWMD

operates over 1000 miles of canals and hundreds of

pumps to control water within its system. It is safe to

say that in the construction of these projects, water

quality was not considered.

Unfortunately, the problems of water quality in

this massive engineered system were slow to be rec-

ognized. Not until 1973 did the state begin to inves-

tigate and address the problem of excess nutrients in

Lake Okeechobee. Since then numerous studies have

been made and programs implemented. These include

two Lake Okeechobee Technical Advisory Committee

Final Reports (1986 and 1990), which resulted in a

number of actions. Reductions in phosphorus entering

the lake from the north were addressed by requiring

* PL 858, Title II, Flood Control Act of 1948.

'° Parker, Ferguson, Love, et al., Water Resources of South-

eastern Florida, USGS Water Supply Paper 1255 (1955).

8

permits for all animal feeding operations and by

buying out a number of dairies. In addition, the state

and federal governments began the restoration of the

Kissimmee River to the north. Recent water quality

improvements in the area have occurred as a result of

the implementation of the Everglades Agricultural

Area regulatory program (Florida Administrative

Code Rule 40E-63) beginning in 1993.

A comprehensive Restudy of the Central and

South Florida Flood Control] Project was authorized

in 1992" and completed in 1999. The Restudy rec-

ognized that there were multiple aspects to the

Everglades system that needed to be addressed. The

Restudy resulted in the Comprehensive Everglades

Restoration Plan (““CERP”) which received Congres-

sional approval in 2000. That plan authorized nu-

merous water quality projects which have been and

are being implemented today.” The nature of these

projects is primarily the construction of Stormwater

Treatment Areas (“STAs”) which receive and hold

water flows to reduce the nutrient content prior to

release of the water.

" PL 102-580, § 309(1) (Water Resources Development Act of

1992).

" PL 106-541, § 601 (Water Resources Development act of

2000). Notably, the approved Plan is, among other things, “to en-

sure the protection of water quality.” The projects authorized to

address water quality are primarily stormwater treatment areas

(STAs) designed to intercept flows and improve water quality.

There is no mention of application of the NPDES program.

9

In the case of the Everglades system, the

SFWMD, landowners, the State of Florida and the

United States have all has expended considerable

effort and commitment of resources over many years

to address the problem of excess nutrients and other

pollutants in the overall Everglades system. It is un-

questioned that every further effort should be made

to ensure that all parts of the Everglades meet water

quality standards. Requiring an NPDES permit for

water transfers, however, is the wrong solution to the

problem. Requiring an NPDES permit for water trans-

fers would not aid in the restoration effort, and could

adversely affect the district’s ability to move water to

control floods, maintain the water supply and con-

tinue its restoration efforts.’* There is no indication

that Congress intended this result in its authoriza-

tion of CERP. Although the Water Resources Devel-

opment Act is aimed at authorizing specific water

development projects, it nevertheless incorporates the

Congressional intent for those projects and sets forth

the methods for their implementation. In Food and

Drug Administration v. Brown & Williamson Tobacco

Company, 529 U.S. 120, 120 S.Ct. 1291 (2000), the

court stated that “specific policy embodied in a later

federal statute should control our construction of the

“ PL 106-541, §§ 601(h)(5)(A) and (B); (A) is a savings

clause prohibiting elimination or transfer of legal sources of

water, and (B) ensures maintenance of flood protection at (then)

existing levels. Both of these indicate Congress’ intent to ensure

the maintenance of necessary water regimes as part of the

CERP process.

10

[earlier] statute, even though it has not been express-

ly amended.” In this case, Congressional adoption in

2000 of the methods for ensuring water quality under

the CERP demonstrates Congress’ intent that those

methods were the means to be used to ensure water

quality in the Everglades.

Congressional approval of the CERP should not

be seen in isolation. The adoption of CERP without a

requirement for NPDES permits for water transfers

was not an oversight. With the years of study and

restudy of the Everglades system, many options for

water quality improvement were considered. The fact

that NPDES permits were not part of the proposed

solution clearly indicates that water transfers were

not considered to be regulated under that provision of

the Clean Water Act. Such a conclusion would apply

to other water transfers wherever located. In this

way, the Congressional approval of CERP indicates a

basic policy interpretation applicable to water trans-

fers generally.

Il. EPA’s Current Interpretation Concerning

Water Transfers in its Rule Is the Appro-

priate Interpretation under the Text, Pol-

icy and Cooperative Federalism of the

Clean Water Act.

In the case below, the Eleventh Circuit approved

EPA’s rule adopted in 2008," finding that the transfer

'* 40 C.F.R. § 122.363).

1]

of water from one navigable water to another, if no

pollutants are added to the discharge, does not re-

quire an NPDES permit. This is generally referred to

as the “unitary waters” approach to such discharges.

In approving the EPA interpretation, the Court

specifically relied on EPA’s adoption of a rule govern-

ing such transfers in 2008, giving the EPA interpreta-

tion Chevron deference.” EPA was previously denied

the ability to be heard on its unitary waters interpre-

tation by this Court in South Florida Water Manage-

ment District v. Miccosukee Tribe of Indians, et al.,

541 U.S. 95, 124 S.Ct. 1537 (2004), because the issue

had not been determined in the lower courts and

IPA had no “administrative document” supporting its

position.

IPA engaged in a deliberative process over the

ensuing year to develop a written analysis and inter-

pretation that was signed in August 2005, entitled

“Agency Interpretation on Applicability of Section

402" of the Clean Water Act to Water Transfers.”

Subsequently EPA engaged in Notice and Comment

Rulemaking to promulgate a rule incorporating the

interpretation. The proposed rule was published on

June 7, 2006 (71 FR 32889) and became final] on June

Chevron U.S.A, v. Natural Resources Defense Council, 467

U.S. 837, 104 S.Ct. 2778 (1984).

33 U.S.C. § 1342.

’ The document specifically refers to the Miccosukee case

as the impetus for engaging in the analysis.

12

13, 2008 (73 FR 33697). In that determination, EPA

delves into the long standing distinction, consistently

followed in practice by EPA, between water quality,

as the province of EPA implemented through the

NPDES program, and water quantity, which was re-

served to the states. Such a lengthy and deliberative

public process does not fall into the category of a “liti-

gation strategy” as asserted by Petitioners. Rather,

when faced with the complex issue of statutory inter-

pretation, EPA used the normal analytical and rule-

making process to make its determination.

Now, EPA has introduced uncertainty into these

proceedings in its statement in its response to a Peti-

tion for Rehearing En Banc. Despite its well developed

position and interpretation of the CWA provisions,

EPA has indicated that it is “reconsidering” its inter-

pretation.” But for this indication of a change in

position, DACS would be content to proceed with im-

plementation of the Eleventh Circuit decision. How-

ever, as the Eleventh Circuit decision was expressly

decided based on giving Chevron deference to EPA’s

interpretation, EPA’s statement leaves the future

EPA interpretation in doubt. Apparently EPA believes

that the Chevron doctrine allows it to substantially

change its interpretation at any time and without a

change in circumstances. While deference has been

'* 40 C.F.R. § 122.301).

* Reply of EPA to The Petition for Rehearing En Banc, p. 15.

13

given to agencies that change their positions,” such a

major shift in such a short time would undercut the

credthility of EPA’s interpretation. EPA’s stated intent

leaves the future uncertain. Such uncertainty under-

mines the ability of agricultural interests and others

nationwide to plan for the future. Specifically, if EPA

does reverse its position in later rulemaking, it would

lead to serious disruption in implementing the CERP,

and perhaps the waste of monies already expended.

The CERP involves the expenditure of billions of

dollars by the parties in the restoration effort.*’ Its

goal is to “restore, preserve, and protect the South

Florida ecosystem while providing for other water

related needs of the region, including water supply

and flood protection. The Plan shall be implemented

to ensure the protection of water quality. ...””

Furthermore, the Eleventh Circuit decision di-

rectly conflicts with Catskill Mts. Chap. Trout Unlim-

ited v. New York City, 451 F.3d 77 (2d Cir. 2006),

which adopted the opposite interpretation of the

* See, e.g., Food and Drug Administration v. Brown &

Williamson Tobacco Company, 529 U.S. 120, 157, 120 S.Ct. 1291,

1313 (2000), citing, Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837, 104 S.Ct. 2778 (1984).

*' The initial WRDA legislation in 2000 authorized, among

other things, ten specific projects with, at that time, a total pro-

jected cost of $1,100,918,000. PL 106-541, § 601(b)(2AXi-x).

= PL 106-541, § 601(b)(1)(A).

14

Clean Water Act regarding the NPDES requirement.

This conflict adds further uncertainty to the issue.

¢

CONCLUSION

The EPA interpretation in its current rule is well

founded and is the correct interpretation of the coop-

erative federalism at the base of the Clean Water Act.

Under these circumstances DACS would have other-

wise discouraged certiorari review. However, given

the uncertainty concerning whether affected parties

can rely on this interpretation going forward makes

the resolution of this question important. DACS

supports the South Florida Water Management

District’s acquiescence in Petitioner’s Petition for

Certiorari.

Respectfully Submitted,

JOHN W. COSTIGAN

CAROL A. FORTHMAN

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399-0800

850-245-1000

costigj@doacs.state.fl.us

Counsel for DACS