by Robert T. Yamachika
The United States Supreme Court recently decided South Florida Water Management District v. Miccosukee Tribe of Indians 124 S. Ct. 1537 (2004), a case which has the potential to significantly affect the government’s authority to regulate discharges into the Nation’s waters. The case revolves around several elements of the South Florida Water Management District’s (“District”) Central and South Florida Flood Control Project (“Project”), consisting of a vast array of levees, canals, pumps and water impoundment areas in the land between south Florida’s coastal hills and the Everglades. A canal, referred to as the C-11 canal (“Canal”), collects groundwater and rainwater from a 104 square mile area which includes urban, agricultural and residential development. At the end of the Canal the District operates a pumping facility (“Pump”) that transfers water from the Canal into the largest of several “water conservation areas” (“WCA-3”) that are remnants of the original Everglades. The Canal and WCA-3 are separated by two levees. During periods of rain, water collects on the western side of the levees in the wetland ecosystem of WCA-3, while rainwater on the eastern side falls on agricultural, urban and residential land where it absorbs contaminants produced by human activities before it enters the Canal. In particular, the water in the Canal contains elevated levels of phosphorous from fertilizers used within the basin. As a result, when the water from the Canal is pumped across the levees, the phosphorous alters the balance of WCA-3’s ecosystem and stimulates growth of algae and plants.
The phosphorous-related impacts of the Project have been the focus of a great deal of attention from state and federal authorities for more than 20 years. Unhappy with the progress of several initiatives to reduce these impacts, the Miccosukee Tribe of Indians (“Tribe”) filed a Clean Water Act (“CWA”) suit alleging that the District was discharging pollutants into waters of the United States, without a National Pollutant Discharge Elimination System (“NPDES”) permit. Under CWA’s NPDES program, dischargers must obtain permits limiting the type and quantity of pollutants they can release into the Nation’s waters.
The District and federal government, as amicus, advanced three separate arguments, any of which would lead to the conclusion that the Pump does not require an NPDES permit. The District’s initial argument that an NPDES permit is only required when a pollutant originates from a point source and not when pollutants originating elsewhere merely pass through a point source, was rejected by the Court. The Court held that “[a] point source is, by definition a ‘discernible, confined and discrete conveyance.’ That definition makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to ‘navigable waters,’ which are, in turn, defined as ‘the waters of the United States.'”
The second argument considered by the Court was the so called “unitary waters” approach. The government contended that all water bodies falling within the CWA’s definition of “navigable waters” should be viewed unitarily for purposes of NPDES permitting requirements. In support of the unitary waters approach the government pointed out its “deference to a longstanding EPA view that the process of ‘transporting, impounding and releasing navigable waters’ cannot constitute an ‘addition’ of pollutants to ‘waters of the United States.'” However, the Court held that 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 agreed in dicta that because both the WCA-3 and the Canal are navigable waters, under the “unitary waters” approach, the Pump would not require an NPDES permit. However, the Court declined to resolve the “unitary waters” approach because neither the District nor the government raised the approach before the Court of Appeals or in their petitions for certiorari.
The Court also stated that the government and several amici warned of significant practical consequences if the Court affirmed the Eleventh Circuit. The Court considered this argument stating that:
If we read the Clean Water Act to require an NPDES permit for every engineered diversion of one navigable water into another, thousands of new permits might have to be issued, particularly by western States, whose water supply networks often rely on engineered transfers among various natural water bodies. (Citing Brief for Colorado et. al. amici curiae). Many of those diversions might also require expensive treatment to meet water quality criteria. It may be that construing the NPDES program to cover such transfers would therefore raise the costs of water distribution prohibitively, and violate Congress’ specific instruction that ‘the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired’ by the Act. On the other hand, it may be that such permitting authority is necessary to protect water quality, and that the States or EPA could control regulatory costs by issuing general permits to point sources associated with water distribution programs. Indeed, that is the position of the one State that has interpreted the Act to cover interbasin water transfers. (Citing Brief for Pennsylvania Department of Environmental Protection amicus curiae).
Unfortunately, the Court did not announce its opinion as to which of the two arguments it found to be persuasive, leaving this issue for a future battle. The comments do suggest that should the issue come before the Court again, it could find that any transfer of water from one navigable water body to another could require an individual or general NPDES permit.
The last argument the Court addressed was whether the Canal and the WCA-3 are, in fact, distinct water bodies, or two hydrologically indistinguishable parts of a single water body. The Tribe did not dispute that if the Canal and WCA-3 are simply two parts of the same water body, pumping water from one into the other cannot constitute an “addition” of pollutants. The Court cited the Second Circuit’s Trout Unlimited decision which compared water transfers to stirring a pot of soup. “As the Second Circuit put it in Trout Unlimited, ‘ 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.'” Trout Unlimited 273 F.3d 481, 492 (2nd Cir. 2001). In this case, the dispute is over the accuracy of the District’s factual premise that there is only one pot of soup, not two.
The Court found that the record contained information supporting the District’s view that the water bodies are part of a larger single water body. The Court reasoned that although the Canal and WCA-3 are divided from one another by the two levees, that line appears to be an uncertain one. There was evidence that the levees continually leak, allowing water to escape from WCA-3. “This means that not only that any boundary between C-11 and WCA-3 is indistinct, but also that there is some significant mingling of the two waters; the record reveals that even without use of the S-9 pump station, water travels as both seepage and groundwater flow between the water conservation area and the C-11 basin.”
The District Court applied a test that neither party defended. It determined that the Canal and WCA-3 are distinct “because the transfer of water or its contents from C-11 into the Everglades would not occur naturally.” The Supreme Court did not decide whether the District Court’s test (which was also endorsed by the Eleventh Circuit) was adequate for determining if the Canal and WCA-3 are distinct in this case. It merely held that the test was applied prematurely, making summary judgment inappropriate because some factual issues were unresolved. The record suggests that if the Pump were shut down, the area drained by the Canal would quickly flood. The Supreme Court found that further development of the record was necessary to resolve the dispute over the validity of the distinction between the Canal and WCA-3.
The Court’s final two paragraphs of the opinion make it clear that water diversions from the same water system would not need an NPDES permit. “After reviewing the full record, it is possible that the District Court will conclude that C-11 and WCA-3 are not meaningfully distinct water bodies. If it does so, then the S-9 pump station will not need an NPDES permit.” The converse being if water is being transferred from one meaningfully distinct water body to another then an NPDES permit is required. The opinion also suggests that a proper test of whether a water system is “meaningfully distinct” would be whether the water system would naturally flow together in the absence of the point source diversion. While the Court did not affirm the District Court’s test, it did suggest it was proper. This provides other parties at least some guidance in determining whether a NPDES permit is required. Because the Supreme Court vacated the Eleventh Circuit’s decision, the “unitary waters” argument will be open to the parties on remand to the district court. Stay tuned.
Robert T. Yamachika is an associate with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.