|
--------------------------------------------------------------
AN E-BULLETIN
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
lii\@lii.law.cornell.edu
---------------------------------------------------------------
The following decisions have just arrived via the LII's direct
Project HERMES feed from the Supreme Court.
===============================================================
SOUTH FLA. WATER MANAGEMENT DIST. V.MICCOSUKEE TRIBE (02-626)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/02-626.ZS.html
Argued January 14, 2004 -- Decided March 23, 2004
Opinion author: O'Connor
===============================================================
Congress established the Central and South Florida Flood Control Project
(Project) to address drainage and flood control problems in reclaimed
portions of the Everglades. Five Project elements are at issue here.
The first, the "C-11" canal, collects ground water and rainwater from an
area that includes urban, agricultural, and residential development.
The second Project element, pump station "S-9," moves water from the
canal to the third element, an undeveloped wetland, "WCA-3," which is a
remnant of the original South Florida Everglades. Petitioner, the
Project's day-to-day operator (hereinafter District), impounds the water
there to keep if from flowing into the ocean and to preserve wetlands
habitat. Absent such human intervention, the water would flow back to
the canal and flood the C-11 basin's populated areas. Such flow is
prevented by levees, including the "L-33" and "L-37" levees at issue
here. The combined effect of L-33, L-37, C-11, and S-9 is artificially
to separate the C-11 basin from WCA-3, which would otherwise be a single
wetland. The Project has an environmental impact on wetland ecosystems.
Rain on the western side of L-33 and L-37 falls into WCA-3's wetland
ecosystem, but rain falling on the eastern side absorbs contaminants,
including phosphorous from fertilizers, before entering the C-11 canal.
When that water is pumped across the levees, the phosphorus alters the
WCA-3 ecosystem's balance, stimulating the growth of algae and plants
foreign to the Everglades. Respondents (hereinafter Tribe) filed suit
under the Clean Water Act (Act), which prohibits "the discharge of any
pollutant by any person" unless done in compliance with the Act, 33 U.S.
C. sect. 1311(a).Under the Act's National Pollutant Discharge
Elimination System (NPDES), dischargers must obtain permits limiting the
type and quantity of pollutants they can release into the Nation's
waters.sect. 1342. The Act defines " 'discharge of a pollutant' "
as "any addition of any pollutant to navigable waters from any point
source," sect. 1362(12), and defines " 'point source' " as "any
discernible, confined and discrete conveyance""from which pollutants
are or may be discharged," sect. 1362(14). The Tribe claims that S-9
requires an NPDES permit because it moves phosphorus-laden water from C-
11 into WCA-3, but the District contends that S-9's operation does not
constitute the "discharge of [a] pollutant" under the Act. The District
Court granted the Tribe summary judgment, and the Eleventh Circuit
affirmed. Both rested their holdings on the predicate determination
that C-11 and WCA-3 are two distinct water bodies.
Held: The case is remanded for further proceedings regarding the
parties' factual dispute over whether C-11 and WCA-3 are meaningfully
distinct water bodies. Pp. 6-14.
(a) Each of three arguments advanced by the District and the Federal
Government as amicus would, if accepted, lead to the conclusion that S-9
does not require an NPDES permit. P. 6.
(b) The Court rejects the District's initial argument that the NPDES
program covers a point source only when pollutants originate from that
source and not when pollutants originating elsewhere merely pass through
the point source. The definition of a point source as a "conveyance,"
sect. 1362(14), makes plain that the point source need only convey the
pollutant to navigable waters.The Act's examples of point sources-
-pipes, ditches, tunnels, and conduits--are objects that transport, but
do not generate, pollutants. And one of the Act's primary goals was to
impose NPDES permitting requirements on municipal wastewater treatment
plants, which treat and discharge pollutants added to water by others.
Pp. 7-8.
(c) The Government contends that all water bodies that are navigable
waters under the Act should be viewed unitarily for purposes of NPDES
permitting. Because the Act requires NPDES permits only when a
pollutant is added to navigable waters, the Government contends that
such permits are not required when water from one navigable body is
discharged, unaltered, into another navigable body. Despite the
relevance of this "unitary waters" approach, neither the District nor
the Government raised it before the Eleventh Circuit or in their briefs
respecting certiorari, and this Court is unaware of any case that has
examined the argument in its present form. Thus, the Court declines to
resolve the argument here.However, because the judgment must be
vacated in any event, the unitary waters argument will be open to the
parties on remand. Pp. 8-12.
(d) The District and the Government believe that the C-11 canal and WCA-
3 impoundment area are not distinct water bodies, but are two
hydrologically indistinguishable parts of a single water body. The
Tribe agrees that, if this is so, pumping water from one into the other
cannot constitute an "addition" of pollutants within the meaning of the
Act, but it disputes the District's factual premise that C-11 and WCA-3
are one. The parties also disagree about how the relationship between
S-9 and WCA-3 should be assessed. This Court does not decide here
whether the District Court's test is adequate for determining whether C-
11 and WCA-3 are distinct, because that court applied its test
prematurely. Summary judgment is appropriate only where there is no
genuine issue of material fact, but some factual issues remain
unresolved here. The District Court correctly characterized the flow
through S-9 as nonnatural, and it appears that if S-9 were shut down,
the water in the C-11 canal might for a brief time flow east, rather
than west. But the record also suggests that if S-9 were shut down, the
area drained by C-11 would flood, which might mean C-11 would no longer
be a distinct body of navigable water, but instead part of a larger
water body extending over WCA-3 and the C-11 basin. It also might call
into question the Eleventh Circuit's conclusion that S-9 is the cause in
fact of phosphorous addition to WCA-3. Nothing in the record suggests
that the District Court considered these iss
|
| |
| |
|
