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Court Punts in Miccosukee Case
By Richard
M. Glick
[March 2004]
The U.S. Supreme Court declined to answer whether
the engineered movement of water from one navigable waterway
to another requires compliance with the Clean Water Act, declaring
the case premature. South Florida Water Management District
v. Miccosukee Tribe of Indians et al, No. 02-626. Instead,
the Court remanded a six year legal battle involving the Florida
Everglades between the South Florida Water Management District
(District) and the Miccosukee Tribe of Indians (Tribe) back
to the lower courts for further proceedings. At issue in the
case was whether pumping water from a canal to a natural wetland
storage facility separated by levees requires the District to
obtain a National Pollutant Discharge Elimination System (NPDES)
permit. Both the trial court and the Eleventh Circuit held that
a permit is required. The Supreme Court vacated and remanded
to the lower court to determine whether the canal and wetlands
are in fact two distinct water bodies.
Background
Starting in the 1900s, the federal government
began constructing a series of canals and levees to drain wetlands.
This network protects the populated areas of Broward County
from inundation. Groundwater and surface runoff from urban,
agricultural, and residential areas collect in the canal. That
runoff contains contaminants, including high levels of phosphorous.
When water in the canal reaches a certain volume, the pumping
station is activated and pumps the water into a large, undeveloped
wetland area, which is naturally low in phosphorous. This transfer
of water stimulates the growth of algae and plants that were
foreign to the wetland’s ecosystem. A number of initiatives
had been underway for some time to restore the ecological integrity
of the Everglades. The Tribe, impatient with the pace of progress,
brought a suit under the Clean Water Act to enjoin operation
of the pump, arguing that the District is required to obtain
a NPDES permit because the pump station transferred pollutants
from the canal to the wetlands.
Legal Arguments
The District, joined by the federal government
who filed an amicus brief, advanced three arguments:
(1) because the pollutants originated elsewhere and merely passed
through the pump, the pump was not a point source and did not
require a permit; (2) all “waters of the United States”
should be viewed unitarily for purposes of NPDES permitting
requirements and no permit is required when water from one navigable
water body is discharged, unaltered, into another (the “unitary
waters” test); and (3) if a NPDES permit is required here,
it would also be required at the hundreds of dams scattered
throughout the West, thus adding considerable cost to public
water supply systems.
The Ruling
Under the first argument, the Court held “that
a point source need not be the original source of the pollutant”
and need only convey the pollutant to navigable waters. The
Court expressed some doubt as to the propriety of the unitary
waters test and observed that the Clean Water Act’s approach
was to protect individual water bodies as well as the waters
of the United States as a whole. More importantly, the Court
noted that the government had failed to identify any documents
indicating that the EPA had adopted the unitary water theory
before this case, and in fact the unitary waters approach could
conflict with current NPDES regulations. The Court appeared
ambivalent about the practical implications of requiring permits
for situations like the one in this case, noting that such permitting
authority may be necessary to protect water quality and regulatory
costs could be controlled by issuing general permits.
While the Court did touch on the merits of each
argument, it concluded that because neither the District nor
the government raised the unitary waters test in the proceedings
below and, because there was a genuine issue of fact as to whether
the canal and the reservoir were indeed two separate and distinct
water bodies, the case must be remanded for further proceedings.
Both parties are free to argue the unitary waters test on remand.
Interestingly, the Tribe did not dispute that if the canal and
the wetlands were simply two parts of the same water body that
pumping water from one into the other could not constitute an
addition of pollutants. The Tribe only took issue with the accuracy
of the factual premise and argued that there were indeed two
distinct water bodies. The lower courts had applied a test that
neither party defended, namely that the canal and wetlands were
distinct because the transfer of water from the canal into the
Everglades would not occur naturally. The Court noted, after
reviewing the full record on remand, that it is possible the
District Court would conclude that there were not two meaningfully
distinct water bodies and, therefore, the pump station would
not require a NPDES permit.
Justice O’Connor wrote the opinion for the
nearly unanimous Court. Justice Scalia concurred in part and
dissented in part, noting that he would affirm the Court of
Appeals’ disposition of the question presented (whether
a point source need be the original source of the pollutant)
without reaching the other issues and leaving the unitary waters
test to be considered in another case. In any event, the Court
failed to take the opportunity to clarify what constitutes a
point source subject to the NPDES permitting system. A pending
appeal in the Second Circuit, Catskill Mountains Chapter
of Trout Unlimited v. New York City, could very well address
the unitary waters theory and may reach the U.S. Supreme Court
before the Everglades case is resolved.
A more complete analysis of the Miccosukee
decision will be presented in a forthcoming issue of The
Water Report.
This article was originally published
in the Oregon Insider.
For more information, please contact:
This Environmental Law Advisory is a
publication of the Environmental Law Department of Davis Wright
Tremaine LLP. Our purpose in publishing this Advisory is to
inform our clients and friends of recent developments in environmental
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may only be given
in response to inquiries regarding particular situations.
Copyright © 2004, Davis Wright Tremaine
LLP.
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