Summary of a Recent
Judicial
Development in
Clean Water Act
NPDES Permit Scheme Includes Sources That
Do Not Generate a Pollutant
Elizabeth Smith McKinneyNational AgLaw Center Graduate Assistant
Summary of Decision
In South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), the Supreme Court of the United States held that point sources that discharge a pollutant but do not themselves generate a pollutant are within the regulatory authority of the National Pollutant Discharge System (NPDES) permit scheme, 33 U.S.C. § 1362, of the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. See id. at 1533. The Court also vacated the judgment of the United States Court of Appeals for the Eleventh Circuit and remanded for further proceedings the issue of whether the waters in question are two distinct bodies or "two hydrologically indistinguishable parts of a single water body." Id. at 1545.
Background
The Central and South Florida Flood Control Project, which changed the hydrology of the Everglades to expose habitable and cultivatable land, is operated by the South Florida Water Management District. See id. At issue were five discrete, but interconnected, elements of the project that maintained a water table to the east and west. See id. Rainfall on the western side affected a wetland ecosystem known as WCA-3, while rainfall on the eastern side affects a basin containing agricultural, urban, and residential property and runs into a canal known as C-11. See id.
Two levees, L-33 and L-37, along with a pump station, S-9, separate the wetland from the basin. See id. at 1540-1541. Water from the C-11 canal is pumped into the WCA-3 wetland via the S-3 pump station, and that water contains contaminants, including phosphorous from agricultural operations. See id. The effects of the contaminants on the WCA-3 wetland had been ongoing for more than 20 years and the Tribe brought suit to enjoin the operation of the S-9 pump and transference of water from C-11 to WCA-3. See id. at 1541. The Tribe argued that the S-9 pump required a NPDES permit for operation. See id. The District countered that the permit system only applied if the point source is the generator of the pollutant rather than the mere conveyor of the pollutant. See id. at 1542-43.
Analysis and Holdings
The Court looked to the "discharge of a pollutant" as defined in the CWA § 1362(12) and determined that the definition of point sources, set forth at CWA § 1362(14), contained conveyances such as "pipes, ditches, tunnels, and conduits," that did not generate pollutants. Id. at 1543. The Court also noted that the primary purpose of the NPDES system was to impose restrictions on municipal wastewater treatment plants and held that the conveyance of water containing pollutants from another source was a discharge of a pollutant within the definition of the CWA. See id. at 1543. As to the issue of the water bodies and whether they were two separate navigable waters, the District asserted a "unitary waters" argument not raised below. See id. at 1545. The Court remanded that issue so that it could be considered in the court below. See id. at 1545.
The case was decided on March 23, 2004; this summary was posted Dec. 2, 2005.