April 15, 2004

Supreme Court Overturns Eleventh Circuit in Significant Clean Water Act Case

Holland & Knight Newsletter
Rafe Petersen

On March 20, 2004, the U.S. Supreme Court issued an opinion that has the potential to significantly affect the federal government’s authority to regulate under the Clean Water Act. In the case of South Florida Water Management District v. Miccosukee Tribe of Indians, Case No. 02-626, the Miccosukee Indian tribe alleged that the South Florida Water Management District (District) was illegally dumping pollutants into Florida’s Everglades without the required federal National Pollutant Discharge Elimination System (NPDES) permit. In an 8-1 decision authored by Justice O’Connor, the Court reversed the Eleventh U.S. Circuit Court of Appeals’ decision that the District’s operation of the S-9 pump required a permit in order to transfer water from a canal into Water Conservation Area 3 (WCA-3).

While the opinion vacates the lower court’s decision, the Supreme Court found further factual development necessary in order to determine if the C-11 canal and WCA-3 were essentially the same water body. Thus, the Court directed the lower court to reconsider the District’s argument that the waters in the canal and in WCA-3 are essentially the same body of water and that moving water from one navigable body of water to another does not require a federal permit.

While the Court rejected the District’s argument that the pump could not be a regulated “point source” because the pump does not generate pollutants, it ultimately found the District’s argument persuasive that the diversion of water within the same water body does not require a permit. This has significant implications for water districts throughout the nation who were at risk of being pulled into the CWA permit process for even minor inter-basin transfers of water.

The Court focused primarily on the question of whether or not a permit would be required if the C-11 canal and WCA-3 were considered the same body of water. This stems from the CWA’s definition of a pollutant discharge as any addition of any pollutant to navigable waters from any point source. The federal government, filing as amicus curiae, contended that all water bodies that are “navigable waters” under the CWA should be viewed unitarily for purposes of NPDES permitting. Given that the CWA requires NPDES permits only when a pollutant is added to navigable waters, the government asserted that permits are not required when unaltered water from one navigable body is discharged into another navigable body. In rejecting this theory, the Court noted that the government “suggests that we adopt the ‘unitary waters’ approach out of deference to a longstanding EPA view that the process of ‘transporting, impounding, and releasing navigable waters’ cannot constitute an ‘addition’ of pollutants to ‘the waters of the United States… .’” However, the government did “not identify any administrative documents in which EPA has espoused that position. Indeed, an amicus brief filed by several former EPA officials argues that the agency once reached the opposite conclusion.” The Court found that “[b]ecause WCA-3 and C-11 are both navigable waters, adopting the unitary waters approach would lead to the conclusion that the District may operate S-9 without an NPDES permit. But despite its relevance here, neither the District nor the government raised the unitary waters approach before the Court of Appeals or in their briefs respecting the petition for certiorari.” Thus, the argument must be addressed on remand.

The Court also took a hard look at other amicus curiae arguments advanced by certain western U.S. water districts. Citing the state of Colorado brief in particular, the Court concluded that affirming the Eleventh Circuit’s decision would have severe consequences because NPDES permits would then be required for all water diversions. At the same time, however, the Court also noted the arguments advanced by the Miccosukee Indian tribe and the state of Pennsylvania: that NPDES permitting was necessary to protect water quality and that costs could be controlled through the use of general permits. Ultimately, the Court did not say which argument it found persuasive on this issue.

The crux of the case is that the Court found deficiencies in the record due to insufficient facts to resolve the central theory that the C-11 canal and WCA-3 are all part of the same water body. However, the Court did appear to draw a road map for the District as to the type of facts that would support its argument that a permit is not required. Although C-11 and WCA-3 are divided from one another by the L-33 and L-37 levees, that line appears to be an “uncertain one,” the Court said. It went on to say that there was some evidence supporting the District’s “point of view,” stating that “on the limited record” it appeared that “if the S-9 pump was shut down, the area drained by the C-11 canal would flood quite quickly and possibly lead to the conclusion that C-11 would no longer be a distinct body of navigable water.” The Court concluded by holding that if, on remand, the lower court found that C-11 and WCA-3 are not “meaningfully distinct water bodies,” then the “S-9 pump station will not need an NPDES permit.” To explain its rationale, the Court cited the Second U.S. Circuit Court of Appeals decision in Trout Unlimited comparing water transfers to the stirring of a pot of soup. It reasoned that “if one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not added soup or anything else to the pot.” Thus, “[w]hat the Tribe disputes is the accuracy of the District’s factual premise; according to the Tribe, C-11 and WCA-3 are two pots of soup, not one.”

Justice Scalia concurred in Parts I and II-A of the Court’s opinion which held that “a point source is not exempt from the NPDES permit requirement merely because it does not itself add pollutants to the water it pumps.” However, he disagreed with the majority with respect to the federal government’s “unitary waters” argument and stated that he would have affirmed the Eleventh Circuit’s holding that an “addition of pollutant could occur if the discharge originates in another body of navigable waters.”

In the end, the Court left it to the lower courts to sort out the facts. However, on balance, the Court sided with the District in the fundamental premise that water diversions within the same water system would not require an NPDES permit. Southern Florida may be a unique hydrological system. Thus, there may remain questions as how to factually define “the same water system.” The Court’s suggestion of a proper test – whether a water system separated by a diversion would somehow naturally flow together if the diversion pipe was removed – does provide at least some guidance to parties in determining whether a NPDES permit is required. Still, the Court’s remand leaves open the nature and extent of evidence necessary to show that the originating and receiving waters are part of the same water system.

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