South Florida Water Management District v. Miccosukee Tribe of Indians – Oral Argument – January 14, 2004

Media for South Florida Water Management District v. Miccosukee Tribe of Indians

Audio Transcription for Opinion Announcement – March 23, 2004 in South Florida Water Management District v. Miccosukee Tribe of Indians

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William H. Rehnquist:

We’ll hear argument next in No. 02-626, the South Florida Water Management District v. the Miccosukee Tribe of Indians.

Mr. Bishop.

Timothy S. Bishop:

Mr. Chief Justice, and may it please the Court:

Congress in the Clean Water Act provided that a section 402 permit is required for an addition of pollutants from a point source to navigable waters.

Now, the South Florida Water Management District concedes that the S-9 pump, through which it conveys navigable waters from a canal to a water conservation area, is a confined, discrete, discernible conveyance, and we agree that the water in the C-11 canal contains pollution which enters that water from a wide variety of point and non-point sources.

What we do say is that our pumps do not add pollutants to navigable waters.

There is no addition of pollutants to navigable waters when navigable waters are simply moved around, which occurs all the time every day all around the country as public water management agencies allocate and transfer the navigable waters to serve beneficial public purposes.

Stephen G. Breyer:

The obvious question on your thing is you have one of these rivers that’s so filthy that you can set fire to it, and next to it is the most pristine, beautiful trout lake ever.

And so what we build is a little pipe and the pipe takes these filthy, absolutely disgusting water and pours it into this beautiful, pristine trout pond.

All right?

Now, you’re saying that that doesn’t fall within the statute, and–

Timothy S. Bishop:

No.

It does fall within the statute.

Stephen G. Breyer:

–I mean it doesn’t require a permit.

Timothy S. Bishop:

It… it would not require a section 402 permit.

There are all sorts of layers of protection from that occurring.

That would never–

Stephen G. Breyer:

Well, as far as this statute is concerned, EPA, it wouldn’t.

And… and, of course, the obvious thing is that–

Timothy S. Bishop:

–No.

That… that’s not true either, Justice Breyer.

Stephen G. Breyer:

–I mean, EPA through the permit.

Through the permit.

Timothy S. Bishop:

Through the 402, but this… this is a complex statute with many, many layers of protections for the Nation’s waters.

Stephen G. Breyer:

And it would protect–

Timothy S. Bishop:

To begin with, there is always a layer of State protection.

The statute requires that water quality standards be established for portions of the navigable waters.

Those water quality standards are implemented through total maximum daily load requirements that the States are… are required under the statute to… to design.

The States implement the TMDL’s and the water quality standards through non-point source pollution programs that include land use restrictions, that include advice to and requirements on landowners as to best management practices.

William H. Rehnquist:

–I… I suppose it’s beyond the purview of this case.

William H. Rehnquist:

Do we know whether or not the transfer of waters in this case would violate those other regulations?

Timothy S. Bishop:

No, it does not.

The… the… there are exceedances.

Understand that the S-9 pump, while not permitted under 402, is permitted by the State under The Everglades Forever Act.

But there are water quality standards for the canal and for the water conservation area.

The… there is compliance with both of those.

There are exceedances, phosphorus exceedances, from time to time, but those are built into the permit.

The… the cleaning up of the Everglades, which is something that everyone is committed to and the district is deeply committed to, is not an overnight process.

And so there are plans through the Comprehensive Everglades Restoration statute and also under The Everglades Forever Act to address these exceedances in the long term, but–

Sandra Day O’Connor:

Mr. Bishop, the Eleventh Circuit said that moving water within a single, distinct body of water could never result in the addition of pollutants to that body of water.

Now, I assume you agree with that statement?

Timothy S. Bishop:

–Well, I agree with that, but we and the United States go further here in arguing that the statute… what the statute prohibits is the addition of pollutants to navigable waters.

Navigable waters are defined in the statute as the waters of the United States.

It’s our position and the position of the United States, if I read their brief correctly, that an addition of pollutants from a point source occurs when the pollutant is introduced to the navigable waters for the first time.

And that is what the–

Antonin Scalia:

So in… in Justice Breyer’s example, if the pristine trout pond is waters of the United States, then there would not be an addition of the pollutant to waters of the United States when the filthy river was pumped into the pond.

Timothy S. Bishop:

–No.

That would violate State water quality standards which are–

Antonin Scalia:

No.

I… maybe it would violate the standards, but I’m… I’m just talking about the provision required here.

Timothy S. Bishop:

–It would not require a section 402 permit, Justice Souter.

Antonin Scalia:

And… and it would not do so because it would not be the addition of a pollutant to waters of the United States.

Timothy S. Bishop:

That is right.

Antonin Scalia:

Assuming the river is navigable, the filthy river.

Right?

Timothy S. Bishop:

Assuming that it’s a navigable water under the Clean Water Act–

Antonin Scalia:

Right.

Timothy S. Bishop:

–and that… which is a broader concept than waters that one can run–

Stephen G. Breyer:

Well, what I’m driving at here is… is the following.

You have ambiguous language.

Stephen G. Breyer:

I think it’s a very difficult question.

If I accept your side of it, it seems to me I live… leave the EPA without any power to deal with what I just called the filthy river problem, or at least not the… I’m not trying to be tricky in my words.

I… I understand they have other authority and so forth.

But there is a filthy river problem if I take your side of it.

And if I take their… if I take your side of it, that is some kind of a problem.

You can explain to me in 1 second why it’s no problem whatsoever.

I’d like to hear that.

I want to say the opposite thing.

Your problem that you raise, if I take their side, is suddenly everybody in the California water project, which is huge, central valley irrigation, has to run off and get permits, and that too is a big problem.

So it sounds to me that that second problem could be dealt with by EPA through rules that would, in effect, not make them come in because they’d automatically get permits in certain circumstances.

But if I take your side of it, the opposite filthy river problem, there’s nothing to be done.

Timothy S. Bishop:

–Your premise–

Stephen G. Breyer:

So that’s what I say moves me at the second for hypothetical purposes towards their side, but I’m asking you to move me back.

Timothy S. Bishop:

–Your premise is incorrect, Justice Breyer.

Of course, moving filthy water to a pristine water is a problem.

I’ve already explained that it’s addressed and addressed comprehensively and rigorously at the State level, as Congress contemplated in the statute through the water quality standards and TMDL’s.

But beyond that, it is simply wrong to say that the Federal Government lacks power in these cases.

First of all, it has broad power under section 10 of the Rivers and Harbors Act to protect navigability, and that… that provision also includes power for the Corps to engage in a broad public interest review whenever the course of a waterway is changed.

Second, there are other provisions that deal with emergency type situations.

If public health or welfare, for example, is implicated, then section 504 of the statute gives EPA broad powers to go into court and get a restraining order not just for the discharge of pollutants, but much more broadly than that.

Ruth Bader Ginsburg:

Mr. Bishop, can we see… take this concrete case?

I mean, this is a case about phosphorus being dumped into a relatively unpolluted body of water.

What is the State of Florida or anybody doing to reduce the level of phosphorus that comes from this pump and gets dumped into the pure water?

Timothy S. Bishop:

Well, this has… this has been the focus of not only our attention but of the Corps and EPA’s attention for a long time through the… the Comprehensive Everglades Restoration Project.

If I can… and there are a lot of things that are happening to… to reduce the phosphorus level, some of which are sort of purely State water quality standard implementation projects, such as prohibiting the sale of certain types of fertilizers, restricting the use of fertilizers that contain phosphorus.

But the long-term CERP plans here have essentially two components.

The first one is that much of the water in the C-11 basin, in the canal, actually comes from the conservation area through seepage.

There’s an enormous amount of–

John Paul Stevens:

Yes.

May I ask you a question right… I know some seeps through, but what is the principal source of the water in the C-11 basin?

Timothy S. Bishop:

–Well, my understanding is that it is seepage.

I mean, obviously there are–

John Paul Stevens:

You think that’s the principal source?

It seeps in.

You’re just pumping it back into the Everglades?

Timothy S. Bishop:

–That is my… that is my understanding.

There is an enormous amount of seepage, and the seepage involved–

John Paul Stevens:

But where does the water that the people in the western part of Broward County use to water their lawns and bathe and so… where does that water come from?

Timothy S. Bishop:

–From… from the aquifer.

I mean, obviously, in… in–

John Paul Stevens:

There’s an aquifer to the east of the… of the levees?

Timothy S. Bishop:

–There is an aquifer that… an unconfined aquifer that is really indistinguishable from the surface water that underlies the levee.

But it’s… it is not divided by the levee.

It underlies the water, the surface water, on both sides–

John Paul Stevens:

Are you telling me there’s an aquifer to the east of the levee?

Timothy S. Bishop:

–To the east of the levees and to the… it’s–

John Paul Stevens:

Which is a separate source of water than the source that feeds the large… the WCA-3–

Timothy S. Bishop:

–No, no.

This is an aquifer that underlies both sides of the levee, the WCA and the basin.

But if I can get back to… I mean, your… your question.

Obviously, the seepage is an enormous source.

What I am told is that seepage alone will be enough to flood out towns like–

John Paul Stevens:

–But the seepage can’t–

Timothy S. Bishop:

–There is other–

John Paul Stevens:

–But the seepage can’t contain any of the pollution–

Timothy S. Bishop:

–No.

John Paul Stevens:

–because the water on the west side of the levee is… is clean.

Timothy S. Bishop:

Well, it’s not clean.

I mean, it does contain pollutants under the definition of the Clean Water Act because that’s a broad definition.

John Paul Stevens:

Well, it’s certainly cleaner than the water on the east side or you wouldn’t have a lawsuit.

Timothy S. Bishop:

There is a substantial amount of water in the C-11 canal that comes from a… a wide array of sources within the basin.

John Paul Stevens:

But the water… the seepage clearly is not what causes the problem.

Timothy S. Bishop:

And that is… just to go back to Justice Ginsburg’s question, one way that we are addressing the phosphorus here is with the Corps.

The Corps has built a new set of pumps right next to the S-9 that is intended to intercept that cleaner seepage water, and it will pump that seepage water right back into the WCA before it is mixed with the more polluted waters from the C-11 basin.

So that is one part of the effort.

It is to get the seepage water back into the water conservation area before it mixes with more polluted water.

Antonin Scalia:

Which… which means–

Timothy S. Bishop:

Those pumps are–

Antonin Scalia:

–Which means that the water to the east will be even more polluted and when you pump that back in, you’ll be pumping more polluted water back in.

Timothy S. Bishop:

–And the solution to that problem is that with the Corps and the task force and the EPA, a number of huge storage basins are being built.

These require, obviously, buying a lot of land, putting together the land necessary for these STA’s.

But the… the purpose of the plans under CERP is to stop as much water as possible getting from the C-11 to the water conservation area.

And so storing as much water as possible in these basins will allow the phosphorus and other pollutants to settle out, and so water that is… and will also reduce the total amount of water that needs to be sent back into the conservation area.

The combination of these new pumps getting the… the cleaner water back into the… into the conservation area and the storage basins, which will reduce the amount of flow and allow the pollutants to… to seep down, is… is the essential way in which under CERP the problem of the phosphorus will be addressed.

No one disputes… and the district least of all disputes… that cleaning up the Everglades and reducing the amount of phosphorus that gets into the water conservation area which, in turn, feeds the Everglades is a very important consideration.

But you also have to understand that our purposes… we are not… we are not just dumping this water in… in the water conservation area.

This water could be sent to the ocean.

In fact, on the eastern portion of the canal, the water is sent to the ocean.

But the… there are other functions, important functions, that are served by the water conservation area, maintaining water in there.

One is the ability to–

Sandra Day O’Connor:

This is all very important, but on the legal question that we have, do you take the position that it’s a single body of water–

Timothy S. Bishop:

–We take–

Sandra Day O’Connor:

–and therefore no permit is required?

Timothy S. Bishop:

–We take the position, first of all, that all of the navigable waters of the United States are unitary for purposes of determining whether they are–

Sandra Day O’Connor:

That’s an extreme position, and you probably have a fall-back position.

Timothy S. Bishop:

–And the alternative–

[Laughter]

Antonin Scalia:

You… you go–

Timothy S. Bishop:

We do argue–

Sandra Day O’Connor:

–What… what’s the fall-back?

Timothy S. Bishop:

–The fall-back is precisely the one that you have described, Justice O’Connor, which is that these were… these were unitary waters.

They are divided solely by manmade structures that are changeable and are changing.

Sandra Day O’Connor:

Well, they have been altered by manmade structures so that they perhaps are no longer a single body.

Is that what the Eleventh Circuit concluded in effect?

Timothy S. Bishop:

Yes, I think the–

Sandra Day O’Connor:

That the manmade structures have separated them and they’re no longer unitary.

Timothy S. Bishop:

–It… it did, but in doing that, it ignored a number of important considerations.

One is the unitary aquifer that I have talked about.

The second is the constant circulation–

John Paul Stevens:

Does the record describe that aquifer?

Timothy S. Bishop:

–The… yes.

I… I believe it’s J.A. 177.

Antonin Scalia:

While you’re looking for that, I… I find it hard to understand how you can interpret… I can understand how you can interpret the phrase, navigable waters, to mean all navigable waters.

I can’t understand how you can interpret the phrase, navigable waters, to mean only those navigable waters that are within a single aquifer or within a single drainage district.

How… how can you possibly derive that interpretation from the text?

Timothy S. Bishop:

No, I agree, Justice Scalia.

Antonin Scalia:

Which is… which is why you took the extreme position, that is really textually not very extreme at all.

Timothy S. Bishop:

No.

I agree with that, Justice Scalia, obviously.

But I… but I do think that if there were a level of discomfort with that argument, which I think is… you know, it’s fully justified by the statute.

And I’d like to come back to that, Justice O’Connor, and explain the other textual basis for… for that argument.

Nevertheless–

Ruth Bader Ginsburg:

Mr. Bishop, as I–

Timothy S. Bishop:

–the concept of an addition–

Ruth Bader Ginsburg:

–as I understand, that was the Government’s brief and it was spelled out very clearly.

I didn’t understand your brief to be taking the position that all we have to worry about is the term, navigable water, then that’s the end of it.

Timothy S. Bishop:

–Well, we think that there is more to it than just the term, navigable water.

We think that… that we do… we have argued throughout this case, including in the lower courts, that the navigable waters are a unitary concept for purposes of section 402.

David H. Souter:

Mr. Bishop, isn’t the problem with the unitary concept idea that given the purposes of the Clean Water Act, it makes great sense if there is a way of distinguishing between bodies of water to distinguish them in terms of their… their pollution?

And the… in… in effect, the… the function of the kind of unitary definition is a function that… that works against the protection of clean water as against to dirty water that can be added to it.

David H. Souter:

And… and shouldn’t the… shouldn’t the purposes of the act be taken into consideration in defining what is a body or a unified body of water?

Timothy S. Bishop:

The act does distinguish.

Congress distinguished, when it wanted to, between the waters of the United States and specific portions of the navigable water.

And there’s an example of that at the bottom of 7a in the addendum.

David H. Souter:

Are… are you talking about a… a distinction based on the… the quality of the water as polluted or clean or relatively polluted/relatively clean?

Timothy S. Bishop:

The statute specifies that water quality standards which identify what the goal is for the level of pollutants in the water and the TMDL’s, the total maximum daily loads, that are used to achieve those water quality standards are set for specific portions or parts of the navigable water.

That is, the State… a State role is to identify, implement, and to enforce those water quality standards which do apply to separate bodies of water.

The regulations talk about bodies of water.

David H. Souter:

So you’re saying… you’re saying that the problem that I’m raising is a problem that is dealt with solely by water quality standards and cannot be dealt with by… by point source emission regulation.

Timothy S. Bishop:

Well, I mean, that’s… that’s… I mean, because of the complexities of the act, that’s not quite right.

As a definitional matter, the Congress clearly distinguished between the navigable waters and those portions as to which water quality standards were to be set.

In implementing water quality standards, a State may take account of the… of effluence reaching the water through point sources.

And in fact, there is a separate provision of the statute–

David H. Souter:

All right, but assuming a State may do that, why does it follow that in defining bodies of water for point source purposes, we may not do that?

Timothy S. Bishop:

–Well, just let me run through, if I may.

I mean, first of all, there–

David H. Souter:

No, but answer my question before you run through because I… I tend to lose the answers in the… in the run-throughs.

You’re… you’re saying, look, when we’re talking about water quality standards, there are distinctions made within a given body of water or within navigable water.

And I think you’re saying that for a point source emission issues, we don’t make that kind of distinction.

My question was, if the distinction can be made and in fact is made, with respect to water quality standards, why should it follow that the same distinction cannot be made for purposes of definition in point source problems?

Timothy S. Bishop:

–Because Congress recognized that this is a cooperative federalism statute where the Federal Government and the State government has their role–

David H. Souter:

As I understood you–

Timothy S. Bishop:

–and in the plain language–

Antonin Scalia:

–you didn’t say it cannot be made.

You said it has not been made–

Timothy S. Bishop:

–Well, it hasn’t–

Antonin Scalia:

–in the statute.

Timothy S. Bishop:

–It has been made in the statute.

Antonin Scalia:

It has not been made and you’re saying it would be illegitimate to make it as a matter of interpretation.

And my question is, why would it be illegitimate as a matter of interpretation?

Timothy S. Bishop:

Well, that’s my run-through.

The plain language of the statute is navigable waters defined as the waters of the United States.

That is backed up by the use of the broad term discharge in section 401(a) where Congress meant to reach much more and which isn’t limited by this language of an addition to the navigable waters.

It is backed up by 304(f)(2)(F) where Congress described as non-point source pollution pollution resulting from the changes in the flow and circulation of navigable waters or ground waters caused by flow diversion devices like the pump.

And it’s backed up by the fact that neither Congress nor EPA has ever at any time since 1972 suggested that these sorts of movements of water should be governed by section 402.

If I may reserve the balance of my time.

Ruth Bader Ginsburg:

Then what did… what did the tribe mean when it said that there are, I think… major components of the Everglades construction project are already under NPDES programs?

Timothy S. Bishop:

Those are the STA’s.

The regulation 122.2, the definitional regulation, defines treatment areas as not being navigable waters.

So when you move water from a treatment area to a navigable water, that requires 402 permitting.

If I may reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Bishop.

Mr. Minear, we’ll hear from you.

Mr. Minear, before you start, if I may just… could you tell me if you think the record explains where the water in the eastern… east of the C-11 basin originates?

Jeffrey P. Minear:

I’m not sure the record is clear on this, Your Honor.

John Paul Stevens:

Because the part that Mr. Bishop brought my attention to does not answer the question.

Jeffrey P. Minear:

I’m… I cannot give you assurance.

John Paul Stevens:

You don’t… you don’t know the answer.

Jeffrey P. Minear:

I do not know the answer to that, Your Honor.

Mr. Chief Justice, and may it please the Court:

The United States submits that the Clean Water Act does not require the South Florida Water Management District to obtain a section 402 permit for the operation of water control facilities like the S-9 pump which simply move water from one location to another.

We believe that position is correct on the basis of both the text of the statute, the overarching purposes of the statute and its structure, and also EPA’s actual practices.

I’d like to turn first to the text of the statute.

Section 402 states that a NPDES permit is required when there is an addition of a pollutant to navigable waters from a point source, and section 5027 goes on to state that a… the waters… the navigable waters are the waters of the United States.

Under that definition and those statutory provisions, when an industrial out-fall introduces pollutants for the first time into the waters of the United States, an NPDES permit is required.

However, when a water control facility like the S-9 pump simply moves water from one place to another, together with any pollutants that might be contained therein, that regulatory regime is not called into play.

Stephen G. Breyer:

But if in fact an industrialist adds quite… something quite filthy out of a pipe into a clean body of water, there is no addition if, at the same time, in some other body of water, he’s taking out an equivalent amount.

Jeffrey P. Minear:

I think that the… the text precludes that understanding because it states any addition of any pollutant.

And we think the use… these definitions are written quite carefully, and we think that those… the term any–

Stephen G. Breyer:

So a single body of water is–

Jeffrey P. Minear:

–indicates you can’t rule it out.

Stephen G. Breyer:

–A single body of water, which seems to have been a concept that the EPA has used for years and years… that’s irrelevant.

Jeffrey P. Minear:

That is… that’s not the case that EPA has used a single body of water.

Stephen G. Breyer:

They haven’t.

They’ve never said–

Jeffrey P. Minear:

No.

I think that in fact the… the approach that EPA has taken in this is… can be seen from a number of sources.

First of all, EPA has never attempted to regulate water control facilities like the S-9 pump in the 30 years that the NPDES program has been in place.

And what’s more, in cases, the closely analogous cases, of dams where water is simply being passed through a dam, EPA has taken the position that an NPDES permit is not required.

Part of the reason for this is there are other regulatory programs that deal with these problems.

Justice Breyer mentioned the problem of taking a polluted river and combining it with a pristine river.

That actually implicates a number of different programs.

First of all, in the case of the polluted river, that river is subject to 402 requirements, and so there will be steps taken to prevent the discharge of pollutants into the polluted river.

The States also are required, or at least strongly urged by the Government and with strong carrot and stick type incentives, to adopt non-point source pollution programs to reduce any non-point pollution that might be going into that polluted river.

If there’s an attempt to connect that river to another river, it does implicate, as Mr. Bishop indicated, the section 10 of the Rivers and Harbors Act which deals with regulations that result in the change in the flow of–

Anthony M. Kennedy:

–What about… C-11 doesn’t come within that because it’s not polluted enough?

Jeffrey P. Minear:

–C-11, when it was first constructed at that… at the time that the C-11 canal was built back in the 1950’s, most likely… well, it was in fact constructed by the Corps of Engineers.

So it was subject to the public interest review provisions that the Rivers and Harbors Act envisions.

When the… the Corps investigates private connections of this type, it conducts what’s called a public interest review, and this is described in your case, United States v. Alaska at 503 U.S. 569.

Stephen G. Breyer:

What about the other half of what I said, that I’m thinking if you were to be wrong on that, if I thought you were wrong on what you’ve said… assumption… then it’s not so bad for you because EPA can handle what I call the California central river valley project by the Costle… you know what I’m thinking of.

Leventhal’s opinion in Kostal.

Does that ring a bell?

NRDC v. Costle.

Does that ring a bell to you?

Jeffrey P. Minear:

I’m afraid I’m not familiar with that.

That’s–

Stephen G. Breyer:

He lists… in that opinion there, he lists… he lists a set of things that EPA could do under the permit requirement that would, in fact, alleviate the administrative burden and would make sure that all these pipes and things in California don’t really have an administrative problem or other problem by having to go to EPA to get the permit.

Jeffrey P. Minear:

–EPA has substantial discretion to minimize the types of regulatory burdens that might be imposed here.

Nevertheless, they’re likely to be substantial.

And what they amount to in this case is really a belt and suspenders approach, and you know, the additional haberdashery is fine except for the cost that it does entail.

Jeffrey P. Minear:

In this case it could be very substantial for projects throughout the Nation.

Antonin Scalia:

Don’t you think there would be another lawsuit quite promptly if… if EPA simply said you automatically get a permit for this type of operation?

Jeffrey P. Minear:

I think that’s correct.

And in addition, I think we have to consider what would a permit accomplish in this case that the CERP project that the Corps of Engineers has… is implementing is not already doing.

That project is designed to deal with these problems.

The permitting program is really designed to deal with the specific problem of introducing pollutants into waterways for the first time.

It’s really not capable of dealing with this problem of water transfers that move from one place to another.

Rather, there are other programs that deal with this.

If it’s a Federal program, it would be subject to NEPA, for instance, and there would be an environmental analysis before any action was taken.

In the case of the Rivers and Harbors Act that I described before, that would also implicate section 401 of the Clean Water Act, which requires a water quality certification, a determination from the State that in fact waters would be… would not violate water quality standards.

I’d like to make the point also that our position is not an extreme one in saying that the… the text requires that we only look at the pollution when it first enters the water.

Rather, it’s a… it’s a approach that recognizes that cleaning up polluted water requires a number of different control strategies.

The NPDES permitting program is only one.

Sandra Day O’Connor:

Well, what do we make of information such as that provided by the State of Pennsylvania, talking about the application of the permit system to interbasin transfers in that State and saying how beneficial it has been?

Jeffrey P. Minear:

Well, the State of… the Commonwealth of Pennsylvania can, of course, adopt that type of program on its own under its State law to deal with those types of programs.

Any State can.

Sandra Day O’Connor:

It tells us that it’s been getting permits under this Federal scheme and that it’s been helpful.

Jeffrey P. Minear:

That might very well be, and it is allowed to supplement the Federal scheme with its own State additions.

But other States, such as California, have found–

Antonin Scalia:

I don’t understand that.

You conceded that in Pennsylvania EPA permits are obtained?

Jeffrey P. Minear:

–No.

These… the… EPA has delegated authority to implement the permitting program to a number of States, including Pennsylvania.

So Pennsylvania is issuing the 402 permits in lieu of the Federal Government.

My point is–

Ruth Bader Ginsburg:

It’s done the same thing in Florida.

EPA has delegated to the State agency, hasn’t it?

Jeffrey P. Minear:

–That’s true.

In fact, it has in most States.

So in fact, in most States the States are issuing these permits with substantial guidance from the Federal Government.

Jeffrey P. Minear:

The Federal Government is setting the floor for what the permit requirements are, but the States are free to supplement their permitting programs with additional State requirements and many do so.

Many States like California actually operate with additional programs apart from the Clean Water Act.

I think that Judge Kennedy when he was… or Justice Kennedy… excuse me… when he was a judge on the Ninth Circuit, wrote an opinion concerning the New Malones project where he talked about the imposition of water quality standards at… at the State level on Federal projects and indicated that the States, in fact, do have that authority as well.

My… my point here is that there are a number of different mechanisms here in which these problems can be addressed, and the important point is to choose the right one.

In this context, the NPDES permitting program is not the correct mechanism for dealing with the problems that the Florida Everglades faces.

Instead, that problem is being addressed comprehensively through Federal and State programs.

Ruth Bader Ginsburg:

Is that the view that EPA takes?

Jeffrey P. Minear:

Yes, that is the view.

The brief of the United States here is it reflects a consensus of a number of agencies, not only EPA but the Department of the Interior, the Corps of Engineers, and the Department of Army.

And I’d like to mention there’s been some suggestion that this Court should draw inferences from the names that are on the cover of the brief, and those inferences should not be drawn.

The names on the brief have no relationship to whether or not… the absence of the names of an agency does not indicate the brief does… does not represent the views of a particular agency.

That can be seen in a number of briefs, including the Swank brief from two terms ago in which Administrator Browner was a party in that case, a party to the proceeding, and yet there are no EPA counsel names on the brief.

John Paul Stevens:

But I notice that there’s a brief filed by former administrators and general counsel which says that the position of the EPA back in ’75 was that of your opponent.

Jeffrey P. Minear:

They’re relying on a 1975 general counsel opinion that addressed the question of irrigation return flows.

Congress repudiated the position that was taken there 2 years later in the 1977 amendments.

It mentions this point only tangentially.

It’s not even among the 17 questions presented that are listed in that opinion.

And I think what’s more telling is the practice of EPA since that time.

EPA has not required permits from water control facilities to do no more than move water.

John Paul Stevens:

Can I make one thing clear?

You do not endorse the position of the petitioner that it has to be the point source itself that… that causes the pollution.

Jeffrey P. Minear:

That is correct.

We do not endorse that addition.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Minear.

Mr. Lehtinen, we’ll hear from you.

Dexter W. Lehtinen:

Mr. Chief Justice, and may it please the Court:

The Miccosukee Tribe and Friends of the Everglades contend that a pollutant is added to navigable waters whenever it’s put into navigable waters where it would not otherwise be, whenever it’s put somewhere where it’s not already there or would not naturally flow.

The receiving navigable water body is the point of focus under the Clean Water Act because the act specifically provides for designating different water bodies with specific designated uses and with associated water quality standards that will protect those uses.

And the associated permitting system of the act 402 rests on the assumption that the proprietary of the… proprietariness of the proposed addition of a pollutant will be measured against the receiving navigable water body’s designated use and against the receiving navigable water body’s water quality standards.

Antonin Scalia:

What… what says that?

I mean, the… the text we’re dealing with here talks about adding pollutants to the navigable waters of the United States if you read the two definitions together.

And as I see what’s happened here, no pollutants have been added to the navigable waters of the United States.

The total amount of pollutants is the same.

Dexter W. Lehtinen:

Yes.

Justice Scalia, it says any addition of any pollutant to… to navigable waters.

The reason navigable waters need not have and would be confusing to have any adjective is because the location of the point source inherently dictates the receiving navigable water.

Antonin Scalia:

You… it could… it could say to a particular navigable water.

It could have said that very easily.

It doesn’t… it doesn’t say that.

It says to navigable waters.

Dexter W. Lehtinen:

It could, Your Honor, but since the permitting system is from a point source, it would not make sense to say to any other navigable water that the point source is not discharging to.

The point source itself makes the location of the navigable waters specified by the fact that the point source can only discharge–

Antonin Scalia:

No, it doesn’t.

It doesn’t… it doesn’t do what you say the provision does, that… that is, to make it unlawful without a permit to add to a particular navigable water a pollutant that is not already there but that is elsewhere in the navigable waters.

As it’s written, all it says is you shall not add pollutants to the navigable waters of the United States.

That’s how those definitions work out.

And that has not happened here.

Dexter W. Lehtinen:

–Yes, Justice Scalia, but if that were the meaning of that text and the lack of an adjective, any navigable waters were to mean that once in navigable waters, that pollutant could be spread to any navigable water with any different designated use or any different water quality–

Antonin Scalia:

As far as this provision is concerned.

Dexter W. Lehtinen:

–That’s correct, Your Honor.

And this provision has been recognized as being the main method by which the Clean Water Act cleans up water.

The… the problem of the polluted river or dirty river is one problem with the interpretation that there’s a singular navigable waters.

An example… a specific example is the Dubois case, in which the Pemigewassett River was, in fact, so bad that the First Circuit said it peeled paint off of the adjoining buildings on the bank.

That river, under this interpretation, would have been put into Loon Pond strictly for the purpose of resupplying Loon Pond.

It didn’t always go through snow-making equipment.

The First Circuit made it clear that sometimes it is directly from the east branch to Loon Pond.

Furthermore, it would make it impossible to actually administer the permitting system because a permit writer is told to evaluate the propriety of the proposed addition of a pollutant based on the designated use and the water quality standards of the receiving navigable water.

It wouldn’t be effective if thereafter that permit were deemed, as a matter of law, to have authorized the addition of that pollutant throughout the entire United States to any navigable water no matter what its designated use and no matter what its water quality standard.

Stephen G. Breyer:

Is it just First Circuit case or is there any history in the EPA over the years, I guess 30 years, where they did make clear that the navigable waters of the United States… the discharge is not just like one big water where the Sacramento River and Hudson are part of the same big water?

Dexter W. Lehtinen:

Yes, the United States, Justice Breyer, on many occasions… starting in 1975 EPA general counsel issued the opinion that surface water runoff and return flows from irrigation, even when in navigable waters, that is to say an agricultural canal, when then discharged to other navigable waters, would require a permit.

Congress did not repudiate that because what… Congress, if it had repudiated it, would have said that was not an addition.

In fact, Congress–

Antonin Scalia:

Return flow from… from irrigation seems to me quite different.

I mean, that is taking something out of the navigable waters, adding something to it, and then returning it to the navigable waters.

It’s… it’s the fertilizer and… and other pollutants that are picked up in the irrigation process that… that is the problem.

Dexter W. Lehtinen:

–But the question–

Antonin Scalia:

That’s quite different from just transferring from one navigable water to another.

Dexter W. Lehtinen:

–Well, those elements of it are, Justice Scalia, but what the EPA opinion–

Stephen G. Breyer:

But why are they different?

They go along and the water is pure and it sort of picks up some drainage from Tallahassee or someplace, and now it’s not quite the same, and by the time they get it next to the big lake there, it’s filled with stuff, just like the… just like the stuff that drains off the land.

Dexter W. Lehtinen:

–Well, it is not different when it gets into the canal.

The C-11 canal, which is a drainage canal that receives surface water runoff, like an… a agricultural canal that receives irrigation return flow, is itself a jurisdictional navigable waters under this Court’s decisions in Riverside Bayview simply because it’s connected to, in this case, the Atlantic.

In other words, it’s not navigable in fact itself.

Antonin Scalia:

Well, apart from the… what… 1972–

Dexter W. Lehtinen:

Yes.

Antonin Scalia:

–general counsel opinion, which… which applied to… to return from… from cultivated land, do you… do you deny that… that the EPA has never sought to require permitting of this kind of a facility for 30 years?

Is… is that inaccurate?

Dexter W. Lehtinen:

Yes.

Well, it is inaccurate in the sense that in 1993 EPA told the South Florida Water Management District, to its chagrin, that it would have to have NPDES permits for all of these Everglades construction project features that were motivated by the United States v. South Florida Water–

Anthony M. Kennedy:

So that States have been violating the Federal law for 30 years and nobody knew about it?

Dexter W. Lehtinen:

–I’m sorry, Your Honor?

Anthony M. Kennedy:

The States have been violating the Federal law for 30 years.

Dexter W. Lehtinen:

Well, in most cases–

Anthony M. Kennedy:

That’s kind of an extraordinary interpretation.

Dexter W. Lehtinen:

–In most cases, Your Honor, the simple movement of water does not end up, even under Miccosukee… this case, requiring a permit.

Most of them are… are not covered.

They return to the same water body.

The dam cases make it clear that that’s a return to the same water body.

If they’re–

Anthony M. Kennedy:

You don’t… you think the dam cases are correctly decided and you don’t need to distinguish them?

Dexter W. Lehtinen:

–We distinguish them, Your Honor, because the dam cases dealt with the condition… the D.C. Circuit made it clear in the Gorsuch case in ’82 that dam-induced changes in condition such as super-saturation and so forth, and that that was not a pollutant.

They didn’t say dams weren’t point sources.

They said that was not a pollutant.

Antonin Scalia:

I thought same water body made no difference to you.

I thought neither side thought that the answer to this case depended upon whether it was the same water body or not.

If… do you think that if it… if… if it is established that… that this is the same water body, these pumps would be okay without permitting.

Dexter W. Lehtinen:

No, Your Honor, because–

Antonin Scalia:

I thought so.

Neither side takes that position.

Dexter W. Lehtinen:

–Neither side takes the position, but it is true that the phrase, water body, because it’s used in so much of the EPA regulations, is a shorthand for saying that the pollutant is added to a navigable water that wouldn’t otherwise receive it.

The fact is that as the First Circuit said, the argument about whether Loon Pond, well up here… uphill from the Pemigewassett River, east branch, was hydrologically connected or not was irrelevant because Loon Pond would never receive water from the Pemigewassett River, even though that Loon Pond eventually flowed through the watershed to the river.

John Paul Stevens:

The dam–

–May I ask you a question about–

–our problem, aren’t they, that… that the… for you.

That is that it seems to me that under your definition, it’s going to be the same body of water.

And then if you say, well, it didn’t add any pollutant that wouldn’t have been there otherwise, I bet that with most dams that isn’t so, I mean, because there’s a lot of mud stirred up in that lake behind the, say, Boulder, Hoover Dam and so forth.

A big problem.

And if we think of California and the central valley water project, my goodness, you’re not going to say that’s all one body of water.

You have the Sacramento, San Joaquin, Los Angeles.

You know, it goes all over the place.

And so that’s their big problem.

They are saying if you… if you don’t take a strong reading of the dam cases, one that hurts you, we’re suddenly going to find ourselves with… with water valley projects all over the United States and 50 million permits required, and it just won’t work.

All right.

So what’s your response to that?

Dexter W. Lehtinen:

Well, Your Honor, first with respect to the same body of water, if you were referring to the Everglades, this is a… C-11 is a canal that has gas stations, urban shopping malls, industrial parks around it.

And the canal itself was dug out.

It’s not as though 99.99 percent of the Everglades were removed.

So that canal has been dug deeper.

The Everglades’ ecosystem removed.

Dexter W. Lehtinen:

It’s distinctly different.

Stephen G. Breyer:

That’s why I think we need a separate body of water requirement there.

But what about the other part of what they say?

Dexter W. Lehtinen:

Well, with respect to these larger water projects, Your Honor, first of all, if they’re withdrawing water, they’re not going to come under our condition, withdrawing and then being used for a consumptive use and so forth.

That’s already dealt with a different way.

If they’re returning the water through irrigation return flow, that’s already exempt.

Otherwise, if they’re… the State does designate the use and does designate the water quality standards.

So these large movements through canals and water projects… the State controls the designation of those uses.

And even if they were found to be a movement from one navigable water to another, they’re likely to qualify for a general permit.

As Colorado said on page 3 of its brief, none of their movements of water, through any structures in Colorado, interbasin transfers, result in a water quality standard violation.

Accordingly, Colorado solves any problem it has with one general permit.

As well, most of these big movements of water move water that doesn’t distinctly, as in this case, move water that’s four times higher in a certain content than the receiving water body’s water quality standard.

The State law for the Everglades and only the Everglades protection area, not the C-11 canal, is now 10 parts per billion.

That actual number was changed and became effective January 1 of 2004, but it had a separate designation and water quality standard throughout all of the time of this case.

John Paul Stevens:

May I ask you two questions that I… I think you may have answered, but I’m just not sure?

Do you… in your view is water conservation area 3 and the C-11 basin the same body of water, or are they different bodies?

That’s my first question.

My second question is in your view does the record tell us where the water from the C-11 basin primarily comes from?

Dexter W. Lehtinen:

Yes, Justice Stevens.

With respect to the first, they’re distinctly different bodies of water.

The C-11 canal is a canal that has been dug artificially deep, surrounded by gas stations, shopping malls.

John Paul Stevens:

I understand that.

Dexter W. Lehtinen:

And it does not have the ecology of the Everglades.

Nobody stands at a gas station and says to their child, there, John, is the Everglades.

It… it has… and it doesn’t have Everglades water because Everglades water would naturally flow west to east, and they have blocked that flow from the Everglades into the sloughs and into the Atlantic Ocean.

John Paul Stevens:

Then what about the second question?

Dexter W. Lehtinen:

With respect to the second, the record shows the trial court found that substantial surface water runoff goes into the C-11, and–

Anthony M. Kennedy:

That’s right, but why does the… what is the source of the runoff?

Dexter W. Lehtinen:

–Well, the source of the runoff is sometimes rainfall.

I understand.

Dexter W. Lehtinen:

And it is sometimes from the aquifer–

Anthony M. Kennedy:

But surely it didn’t get all their water from… from rain.

Dexter W. Lehtinen:

–And it is sometimes from the aquifer below the C-11 because the C-11 basin, as opposed to the canal… the C-11 basin is a… has been drained and substantial fill put in for the gas–

Antonin Scalia:

But that… that thing in the… the water in the aquifer in turn comes largely from the Everglades, does it not?

Dexter W. Lehtinen:

–Your Honor–

Antonin Scalia:

It filters down to the aquifer from the Everglades and then seeps through to the other side of the levee.

I thought it was… I thought it was acknowledged on both sides that there’s… that there’s transfer of water from the west to the east below the levee.

Dexter W. Lehtinen:

–Yes, Your Honor, from west to east, but not east to west, and when the water transfers through the–

Antonin Scalia:

Well, but that doesn’t… that doesn’t go to the point of whether it’s the same body of water or not.

I mean, whether it flows east to west or west to east, the point is it’s… it’s the same water.

Dexter W. Lehtinen:

–Well, Your Honor, the fact that waters will flow from the… in that case, there would be perhaps three bodies of water in the United States: east of the Appalachian Divide, west of it, and… and then separated by the Continental Divide in the west.

The fact that one water will flow eventually into the other doesn’t make them the same water body.

That is to say, Loon Pond, which was a substantially different ecology and water quality standard and different classification by the State, flowing eventually into the polluted Pemigewassett River much further downstream, did not make them the same water body.

Anthony M. Kennedy:

You say that subsurface flow doesn’t count then in this question.

Dexter W. Lehtinen:

That’s correct.

In this case subsurface flow… that water is substantially changed in the aquifer.

By the time it’s underneath the C-11, it doesn’t have the biological or ecosystem characteristics of the water that is in the Everglades protection area.

It’s been substantially changed by the… by the aquifer.

Antonin Scalia:

But you say this doesn’t matter anyway.

You wouldn’t care if it was the same water body.

That isn’t… that isn’t what you’re arguing.

Dexter W. Lehtinen:

We do argue that it is the same water body and you pump it substantially upstream.

You would also need a permit.

Antonin Scalia:

Right, right.

Dexter W. Lehtinen:

The downstream Pemigewassett River–

Antonin Scalia:

If… if… do you know any place we could look for a definition of what is the same water body?

Is… is there some… some… can I… you know, I’m not sure.

Dexter W. Lehtinen:

–Well, there is a… there is a–

John Paul Stevens:

We could try Genesis–

–or then the second–

John Paul Stevens:

[Laughter]

Dexter W. Lehtinen:

–There is… there is EPA guidance, but the fact that 303 of the act itself mandates that States designate different water bodies and the phrase, water bodies, used in the EPA specification of what water quality standards is means that, as a matter of fact, it’s done all of the time.

And in the State of Florida, the State legislature has designated the Everglades protection area quite distinct from the canal, a different water quality standard and a… and a different use for that water.

And as a hydrological matter, they are… they are able to… to deal with that.

They’ve given them different water body numbers in the State of Florida.

The C-11 canal is a different water body number from the Everglades… various parts of the Everglades protection area and… and so forth.

The–

Ruth Bader Ginsburg:

Could you explain what’s at stake here practically?

We’re told that there are other means to deal with this phosphorus problem.

If the permit you envision were required, what would that permit demand?

Dexter W. Lehtinen:

–This permit would most likely require simply that the plan that the district already has… has on the books and which they mentioned in their brief would be implemented within a reasonable period of time and under a reasonable compliance schedule.

The Everglades restoration project was first motivated, as… as is admitted in all briefs, by litigation against the district for discharging phosphorus that caused an imbalance of natural populations of flora and fauna, and furthermore, all of the congressional acts that deal with the Everglades restoration projects… that’s… and they’re referred to in our brief called WRDA, Water Resources Development Act ’96 and Water Resources Development Act 2000… both refer to the pending litigation and make the statement that they don’t intend to interfere with pending litigation.

And WRDA 2000 specifically says that nothing in these Everglades restoration… this section shall be deemed to eliminate any permitting requirements under law.

Antonin Scalia:

What is… what is then the… the reason for this litigation?

I mean, you… you say you’re just trying to get them to do what they have already said they are doing.

Dexter W. Lehtinen:

Yes.

Antonin Scalia:

You don’t believe that they’re doing it.

Dexter W. Lehtinen:

Well, Your Honor–

Antonin Scalia:

And you don’t believe they’re going to do it, you know, in the foreseeable future.

Dexter W. Lehtinen:

–We… we believe, as… as Congress did, that the Clean Water Act… that the programs in place were not always implemented and that the Clean Water Act was necessary as a backstop to stop the backsliding.

The Federal Government’s litigation in 1988 required the State to do no more than the State in press releases was saying that it was doing and intended to do, but the litigation, reinforced by Congress that specifically said we don’t intend to interfere with any of that litigation, indicates why Federal enforcement is a… is a useful and necessary tool to ensure that States under different pressures don’t backslide.

Our brief appendix indicates that 2 years ago they indicated they would meet water quality standards in the S-9 by 2005, and then with the pendency of this litigation, they have eliminated any commitment to reach it by 2005, hoping that this litigation will first relieve them of the oversight of the NPDES on S-9 and then they will use this litigation to eliminate the NPDES’s that were required from 1993 forward on the other projects.

The only thing that keeps those… those other discharge structures under the restoration project from not being extended or otherwise modified by the State are the EPA placed NPDES permits that already exist on all of those Everglades restoration projects.

We simply want the same permitting backstop on the S-9 structure.

With respect to the question of singular waters, the singular waters approach of the United States eliminates the different designated uses and the ability to actually determine the effects of a permit.

The Minnesota amici brief is very useful in this sense because it points out that St. Paul now, like the Commonwealth of Pennsylvania and others, does get an NPDES to remove water from the Mississippi to its lake and water reservoir.

However, if the Solicitor General’s position were correct, St. Paul would no longer need that NPDES permit, and St. Cloud, substantially up-river on the Mississippi, would… would be under a… a review for does its discharges to the Mississippi, which have been found to meet the NPDES requirements, not changing the designated use or violating the Mississippi’s water quality standard… it… its discharges should be deemed to be somehow removable artificially downstream in the Mississippi so that anyplace anyone at any time might construct the pipe and move them into a more pristine water body, you, St. Cloud now have to anticipate that and will be put under that… that mandate.

So the inability of a permit writer to construct a 402 permit because he doesn’t know that the evaluation is now to the receiving navigable water, but instead I have to evaluate where anyone with a pipe might move it, hundreds and hundreds of miles, without an NPDES permit, that permit writer essentially has to permit only for the highest designated use and the highest water quality standard anywhere in the United States, notwithstanding that where the discharge… point source is discharging to is a particular designated use.

That would make the act either impossible to administer or place burdens on the governments that the petitioner says should not be placed on the governments.

Instead of placing it on the government that for some purpose, some economic purpose, is able to… to determine the costs and to… and to clean the water or at least subject itself to review, when it takes it from a navigable water into a pristine navigable water, you place the burden instead on anyone else who might discharge so… and… and whose… whose discharge might, if removed anywhere downstream by anyone for any reason, might end up causing a violation of a water quality standard.

Antonin Scalia:

Look… look, when… when the States require permitting, as… as they’re allowed to do, they can presumably limit the permitting to just the… the kind of difficult situations you’re talking about, when it is into a pristine body of water from a more polluted body of water.

But if we agree with you on the meaning of the act, permitting will be mandatory not just when… when there are differences between the pollution levels of the two bodies of water, but whenever there is a transfer from one body of water to another.

Even when the two bodies of water are equally polluted, you would need a permit because you are adding… you are adding pollutants.

Dexter W. Lehtinen:

Well, Your Honor–

Antonin Scalia:

Now, it may well be you’re adding pollutants to a body of water that already contains it, but you will need a… a permit in every case whenever any State tries to do flood control projects or any project that requires the transfer of water from one body to another.

Dexter W. Lehtinen:

–Well, in the so-called worst case, Justice Scalia, they’d be qualifying because they don’t have a… they’re not impairing either water body… qualifying for one general permit issued in the State.

But under other circumstances–

Antonin Scalia:

Excuse me.

Can you do that?

Can… I mean, can EPA issue a general permit, say anybody that–

Dexter W. Lehtinen:

–Yes, Your Honor.

General permits are authorized and they are often written to say under the following conditions, you qualify for the general permit, and… and–

Antonin Scalia:

–You don’t have to get it.

You just… just–

Dexter W. Lehtinen:

–That’s correct, Your Honor.

You don’t have to get it.

Antonin Scalia:

–You just go ahead.

Dexter W. Lehtinen:

The general permit might or might not say to do certain monitoring to make sure that you stay within the conditions of the general permit.

Those general permits are very common, and even individual permits are usually system-wide permits.

You have 80 structures–

William H. Rehnquist:

You say a general permit.

You mean that applies to a number of different people?

Dexter W. Lehtinen:

–Yes, Your Honor.

A general permit can be statewide.

The permit looks almost like a rule, but the permit says… and in the case of the Corps, they do nationwide permits, but 404 is not at issue here.

The general permit statewide could say that under the following circumstances, when you are an unimpaired water body discharging to an unimpaired water body or discharging at levels that have pollutants but don’t impair the receiving water body, you automatically qualify for this permit.

Do some monitoring.

Let us know every year.

That general permit is… is frequently used and… and is very close to rulemaking.

But it’s also possible, under those circumstances… and this is not our case.

Dexter W. Lehtinen:

Our case discharges at almost four times the water quality standard, 10 parts per billion, for the receiving water body.

It clearly impairs the receiving water body.

But if the standard for a water body were 20 of a substance, its actual receiving level was 10 and you discharged at 5, not to get too complex, but you’re discharging at a lower level than the receiving water body and the water bodies are not impaired, it’s possible mathematically, but not our case here… these hypotheticals should be left to another time.

It’s possible that the 1 gallon in the receiving water body that had 10, with 1 gallon added to it that had 5, the 2 gallons now have 15, or in fact, 7-and-a-half per receiving unit.

That may be determined by rule or other appropriate analysis in the western cases, if they ever come up, to not be an addition.

But that’s not our case here.

The Court, in an abundance of caution, could point out that our case here is an artificial canal that receives substantial surface water runoff, itself probably a conveyance under the Clean Water Act definition of channels or discrete conveyances, that it discharges at levels up to four times the receiving water body’s water quality standard, that it is itself an impaired water body.

So that the hypothetical situations or application to western States or elsewhere is… are not being addressed by the Court.

Now… now, the… the amici from the Tongue and Yellowstone River Irrigation District point out actually that in the west, they believe that ranchers and farmers will suffer from the Federal Government’s unitary water theory because they will now be subject to water that is not of sufficient quality for their irrigation district and so forth.

It’s not simply a west… and the State of Washington also joined in our brief.

We, of course… we don’t count States, but more States support the tribe in their briefs saying this is essential than do support the… the district and the United States.

The… it’s particularly important to recognize the C-11 was itself dug, is not a residual part of the Everglades, and that it’s… the C-11 basin is not simply a… a water body divided from the WCA or the Everglades protection area by a levee.

Looking at pages 6a and 7a of our brief, which are the appendix to our brief, are from the district’s own web site, which it cited in its brief, and it shows the urban construction right to the boundary.

So it’s not that the C-11 basin is water just divided.

It’s an artificial canal.

It’s no… no more part of the Everglades protection area than Fenway Park in Boston is part of the Charles River because it’s built on the landfill where the Charles River once was.

They’re quite distinct.

With respect to federalism issues, the Clean Water Act itself is a federalism instrument because it provides for the States to do the designation of uses.

It provides for the States to… to create the water quality standards, and it does protect the ability of the States to allocate quantities of water, but this is not a quantity allocation.

The record shows clearly that the S-9 pump is turned on when you get to 1 foot of… turned off when… when the C-11 basin is at 1 foot and turned on when it’s at 4 foot.

It is strictly a drainage mechanism to take surface water runoff and other water out of the C-11.

They’re disposing of water.

They don’t want the water.

They’re dumping the water wherever they can put it.

And actually the water is not our concern.

It is the pollutants.

Whenever they say merely conveying water, we would say conveyance is defined as a point source and they convey pollutants.

If they didn’t convey this massive amount of pollutants, we would not be before Your Honors.

The district, by pumping pollutants contained in the water against the natural flow of that water into the specially designated Everglades protection area, added that water to the Everglades protection area within the plain meaning of… of the Clean Water Act and within the common usage of… of language.

The district put those pollutants in the Everglades and nobody but the district put those pollutants in the Everglades.

Dexter W. Lehtinen:

An effort to reconstruct the term, addition to navigable waters, to allow them to dispose of those pollutants anywhere in the United States with a navigable water of any designated use or of any water quality standard would decimate the Clean Water Act’s protection not only of the Everglades, but of the case law that… that Your Honors have had cited in the brief.

Now, the circuit court cases are not particularly precedent for your Court, but it does point out that Loon Pond would have had water that peeled paint off of the adjoining buildings put into it and not just through snow-making devices.

The… the court clearly indicated that sometimes the Pemigewassett water was put directly to Loon Pond to… to increase the amount of water in Loon Pond.

Now, the… the United States would try to save its singular water theory in some cases by saying, well, water might be removed.

They said on the Dubois case, the First Circuit Loon Pond, that it was removed for snow-making, but I point out that the court said in several places that it also went directly, never through snow-making devices.

They would say that when you put it through tunnels or so forth, perhaps it loses its navigable water character.

The State of New York, of course, is strongly in favor of the tribe because the 18-mile Shandaken Tunnel to them needs–

William H. Rehnquist:

Thank you, Mr. Lehtinen.

Mr. Bishop, you have only 10 seconds left, so we’ll consider the case submitted.

The honorable court is now adjourned until Tuesday the twentieth of January at 10 o’clock.