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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2383%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1082

## Text

“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
NM a oi ass cea ves se cssni ua cuediees ides dK l
FLORIDA STATUTES
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SN NE acc snuanuaeickss uapcabeaiseanchantenacytensets 1
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
ee FN oes oo ectcsvesaeiacoserise erin ee

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2383%3A11. Public record. Not legal advice.