Supreme Court Accepts CWA Case

S. Fla. Water Mgt. Dist. v. Miccosukee Tribe, No. 02-262 (U.S. cert. granted June 27, 2003).

Josh Clemons, M.S., J.D.

The Clean Water Act (Act) prohibits “the addition of any pollutant to navigable waters from any point source” without a permit.1 Non-point source pollution is essentially unregulated, but point source pollution is very strictly regulated under the national pollutant discharge elimination system (NPDES). The NPDES permitting program allows discharge of pollutants if certain conditions are met, including meeting stringent standards for the treatment of polluted water prior to discharge and maintaining the quality of the receiving water body at or above a certain level.2 These standards can be expensive and time-consuming, or even impossible, for a discharger to meet; yet if it fails to meet them it cannot legally discharge.

The economic benefit of avoiding the NPDES program, combined with the vast number of potentially regulated parties, has given rise to volumes of litigation on the intricacies of the deceptively simple statutory language. The U.S. Supreme Court for the first time has agreed to provide guidance on the meaning of “addition” and “from” - two of the most disputed terms in all of environmental law - in S. Fla. Water Mgt. Dist. v. Miccosukee Tribe. The Court’s decision may have significant effects not just in south Florida but across the U.S.

The Conflict in the Everglades
The Everglades, once a wild and free-flowing “river of grass,” has been tamed and harnessed by massive engineering projects to protect and serve south Florida’s burgeoning population and vast agricultural industry. The water bodies at issue in this case, Water Conservation Area-3A (WCA-3A) and the C-11 Canal (both “navigable waters” under the Act), are encompassed by the U.S. Army Corps of Engineers’ Central & Southern Florida Flood Control Project, which is operated for water supply and flood control purposes. Although they occupy an area that was once a single hydrologic system, the C-11 Canal and WCA-3A are separated by levees and are legally and hydrologically distinct water bodies.

The C-11 Canal serves the water management needs of highly developed Broward County by collecting runoff from the C-11 Basin, which contains high levels of phosphorus, a “pollutant” under the Act. WCA-3A serves the subsistence, commercial, recreational, and religious needs of the Miccosukee Tribe, which has a perpetual lease to most of WCA-3A’s water. WCA-3A, like most of the Everglades, is very sensitive to phosphorus levels. Phosphorus is a plant nutrient; as such it can lead to overgrowth of vegetation, which, in turn, can upset the delicate ecosystem upon which the Everglades and the Tribe depend. The waters of the C-11 Canal enter WCA-3A via the South Florida Water Management District’s (SFWMD’s) S-9 pumping station (S-9), a “point source” under the Act. SFWMD does not have a NPDES permit to operate S-9.

The Tribe brought suit to enjoin SFWMD from operating S-9 without a NPDES permit, alleging that S-9’s pumping of phosphorus-contaminated water from the C-11 Canal into WCA-3A constituted “addition of a pollutant from a point source.” The U.S. District Court for the Southern District of Florida agreed with the Tribe that a permit was required and granted the injunction. The Eleventh Circuit affirmed the District Court’s holding that SFWMD was adding a pollutant from a point source in violation of the Act, but vacated the injunction in light of its potentially dire consequences for Broward County. Because there is inconsistency among the appeals courts on the issue, the U.S. Supreme Court accepted SFWMD’s petition to decide whether S-9’s pumping “constitutes an ‘addition’ of a pollutant ‘from’ a point source” subject to the Act’s NPDES requirements.

SFWMD’s Position
SFWMD argues that it is not adding a pollutant from a point source because S-9, the point source, is not introducing the pollutant to navigable waters, but merely passing an already-present pollutant from one navigable water to another. SFWMD relies on a line cases originating in the D.C. Circuit with National Wildlife Federation v. Gorsuch. In Gorsuch the D.C. Circuit deferred to EPA’s interpretation that “addition from a point source occurs only if the point source itself physically introduces a pollutant into water from the outside world.”3
The fundamental reasoning in the Gorsuch line of cases is that “addition from a point source” is determined at the interface between the pollutant and the first “navigable” water body it enters. If that interface is a point source, a permit is required. If the interface is non-point in nature, as is the case with most kinds of runoff, a permit is not required. In this case, phosphorus first enters the C-11 Canal via runoff from the C-11 Basin; this runoff is a non-point source, and by the Gorsuch reasoning S-9 would not require a NPDES permit.

Miccosukee Tribe’s position
The Tribe’s position, which was endorsed by the trial court and the Eleventh Circuit, is that the proper focus is on the water body receiving the discharge rather than on the original entry of the pollutant into navigable waters: if a point source causes the entry of a pollutant into a distinct navigable water body, then the point source must have a NPDES permit. Whether the source water was already polluted or the point source itself added the pollutant is irrelevant.

This position is supported by cases from two circuits: Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273 (1st Cir. 1996) and Catskill Mts. Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2nd Cir. 2001).
The Eleventh Circuit characterized the Dubois and Catskill Mts. reasoning as follows: “When a point source changes the natural flow of a body of water which contains pollutants and causes that water to flow into another distinct body of navigable water into which it would not have otherwise flowed, that point source is the cause-in-fact of the discharge of pollutants. And, because the pollutants would not have entered the second body of water but for the change in flow caused by the point source, an addition of pollutants from a point source occurs.”4 By this reasoning the court affirmed the trial court’s decision that the S-9 pumping caused an “addition of a pollutant from a point source.”

National Implications
In addition to settling matters of serious importance to the parties in the case, the Supreme Court’s ruling is likely to have major implications nationally. Two classes of dischargers may be particularly affected: dam operators and municipal water providers. If the Court upholds the Eleventh Circuit decision, reservoir-type dams may no longer be able to rely on EPA’s long-standing policy (deferred to by the Gorsuch court) that such dams do not “add . . . from” a point source. The massive federal dams on the Columbia and Snake rivers, for example, add heat - a pollutant under the Act - when they discharge sun-warmed water from their reservoirs into the cooler river water downstream. Ultimately the dams might have to be removed. Municipal water supply systems that move water among various “navigable waters” through point sources, like the New York City system at issue in Catskill Mts., would face similarly dim prospects.

A victory for SFWMD would present less extreme possibilities, at least for the majority of the population: the status quo would remain in effect for dams and reservoirs, and only the odd mountain lake, trout stream, or tribal water supply would be adversely affected.

Conclusion
When it decides S. Fla. Water Mgt. Dist. v. Miccosukee Tribe, the Supreme Court will provide long-awaited guidance on a key jurisdictional question under the Clean Water Act: what it means to “add” a pollutant “from” a point source. The Court’s decision will determine not only the hydrologic fate of the Miccosukee Tribe, but possibly the fate of water projects, large and small, nationwide.

ENDNOTES
1. 33 U.S.C. §§ 1311(a), 1362(12) (2000).
2. Id. §§ 1342(a)(1), 1311(b)(1)(C) and (b)(2)(A).
3. NWF, 693 F.2d 156, 175 (D.C. Cir. 1982).
4. Miccosukee Tribe v. SFWMD, 280 F.3d at 1369 (emphasis in original).