U.S. Supreme Court Says Pump Station is a Point Source Miccosukee - - PDF document

ENVIRONMENTAL & LAND USE DEPARTMENT/ENVIRONMENTAL LITIGATION PRACTICE GROUP E-NEWS ALERT — APRIL 9, 2004

U.S. Supreme Court Says Pump Station is a Point Source

Miccosukee Tribe v. South Florida Water Management District, 541 U.S., 2004 WL 555324 (2004) By Elizabeth Thomas and Holly A. Harris In a much anticipated decision, the U.S. Supreme Court recently determined that a pump station constitutes a point source addition of pollutants to a navigable water body. As a result, the station must obtain a permit under section 402 of the Clean Water Act if it pumps polluted water from one distinct water body to another. A permit is not required, however, if the water is pumped into the same body of water. The Supreme Court remanded the case to the lower court to resolve the factual issue regarding the relationship of the water bodies. The South Florida Water Management District (District) is a regional, governmental agency that operates the Central and South Florida Flood Control Project (Project). The Project includes a pump station that pumps water from a water collection canal on one side of a levee to a wetland in Florida's Everglades. The water pumped from the "C-11" collection canal contains higher levels of phosphorus than the wetland. The case arose when the Miccosukee Tribe of Indians (Miccosukee) and a citizens group filed suit under the Clean Water Act alleging that the pump station was required to obtain a permit under the National Pollutant Discharge Elimination System (NPDES) to discharge phosphorus-polluted water into the wetland. A federal district court agreed and granted the Miccosukee's motion for summary judgment. The Eleventh Circuit affirmed the district court's determination that the pumping station needed an NPDES permit.

FACTS OF MICCOSUKEE

In the early 1900s, the United States Army Corps of Engineers (Corps) began draining the Florida Everglades to make them suitable for cultivation and development. During this effort, the Corps excavated a canal called C-11 to facilitate drainage in the surrounding basin. Several decades later, the Corps built a pump station and two levees near the canal to address the unanticipated problems associated with the canal development. The pump station is at the western terminus of the C-11 canal. When water in C-11 rises to a certain level, the pump station pumps water out of C-11 and into a large undeveloped wetland conservation area. This wetland is the largest remnant of the South Florida Everglades. The District uses the pump station to maintain a higher water level in the wetland than the C-11 basin. Without the pump station, water would flow back to the C-11 basin and flood the populated areas. The return flow to C-11 is managed by levees that slow the flow of water from the wetland back to the basin. Water only flows from C-11 basin west into the wetland if the pump station is operating. If the pump station were shut down, C-11 and the wetland would be a single, undifferentiated wetland. The current controversy arises because water pumped through the pump station from C-11 contains higher levels of phosphorus than those found in the wetland. Rain that falls on the C-11 basin absorbs contaminants from human activities and, therefore, is chemically different than the water in the wetland. The pump station, however, does not add any pollutants to the water it pumps.

1

The Miccosukee brought suit alleging that the District violated the Clean Water Act by discharging polluted water into the wetland (through the pump station) without an NPDES permit. The Clean Water Act requires anyone discharging pollutants to obtain a permit that restricts the discharge of pollutants. The statute defines the "discharge of pollutants" as including "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(A). If the Court accepted the Miccosukee's argument, then the District would be obligated to get an NPDES permit to operate the pump station.

A PUMP STATION IS A "POINT SOURCE"

The parties agreed that the canal and the wetland are "navigable waters" and that the pump station discharges polluted water. The parties disagreed, however, as to whether the pump station constitutes a "discharge of a pollutant." On appeal to the Supreme Court, the Miccosukee argued the pump station is a "point source" that adds phosphorus laden water from C-11 to the wetland. The District countered that the NPDES program addresses a point source only when pollutants originate from that source. The District maintained that the pump station simply moved water from one location to another, but did not add any new pollutants. The Court wasted no time in rejecting this argument. The Clean Water Act defines a "point source" as a "discernible, confined, and discrete conveyance." 33 U.S.C. § 1362(14). According to the Court, "[t]hat definition makes plain that a point source need not be the

• riginal source of the pollutant; it need only convey the pollutant to 'navigable waters,' which are, in turn,

defined as the 'the waters of the United States.'" 2004 WL 555324 at *7. The Court pointed to the fact that the statute identifies pipes, ditches, tunnels and conduits as point sources. The Clean Water Act, the Court explained, includes within the definition of a point source "objects that do not themselves generate pollutants but merely transport them." Id. The Court concluded that the Clean Water Act's definition of a "discharge of a pollutant" includes "point sources that do not themselves generate pollutants." Id.

SUPREME COURT DODGES THE "UNITARY WATERS" ARGUMENT

The Court disappointed some when it failed to address one of the most interesting arguments raised in

• Miccosukee. The Federal Government advanced the "unitary waters" argument in its amicus curiae brief.

Under this theory, all navigable waters are viewed unitarily for purposes of NPDES permitting. Thus, an NPDES permit would not be required when water from one navigable water body is discharged, unaltered, into another navigable water body. As the Court explained, "this would be true even if one water body were polluted and the other pristine, and the two would not otherwise mix." Id. at *8. The "unitary waters" argument is based on the Clean Water Act's definition of a pollutant discharge as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). The Federal Government argued the lack of the word "any" before navigable waters suggests that an NPDES permit "would not be required for pollution caused by the engineered transfer of one 'navigable water' into another." Id. at 9. The Federal Government maintained such a situation is addressed through the Clean Water Act's nonpoint source provisions. The Court failed to resolve the "unitary waters" issue explicitly, but apparently views the argument with

• skepticism. The Court noted, for example, that the Clean Water Act "does not explicitly exempt nonpoint

source pollution sources from the NPDES program if they also fall within the 'point source' definition." Id. (emphasis in original). The Court reasoned that a state could set individualized ambient water quality standards by taking into account "the designated uses of the navigable waters involved." Id. (citing 33 U.S.C. § 1313(c)(2)(A)). Those individualized standards then affect NPDES permits. According to the Court, this

2

3

"suggests that the Act protects individual water bodies as well as the 'waters of the United States' as a whole." 2004 WL 555324 at *9. The Federal Government raised the practical concern of requiring an NPDES permit for every engineered diversion of one navigable water body into another. This could require thousands of new NPDES permits. The Court acknowledged the potential costs of such a requirement, but also recognized it might be necessary to protect water quality. In the end, the Court left the "unitary waters" argument open for consideration when the case goes back to the lower court.

ONE BODY OF WATER - OR TWO?

The Court concluded by examining whether C-11 canal and the wetland are in fact two distinct water bodies

• r simply indistinguishable parts of a single body. The Miccosukee acknowledged that if they are two parts of

the same water body, then pumping water from one into other cannot constitute an "addition" of pollutants. According to the Court, "[i]f 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." Id. at 12 (quoting Catskill Mountains Chapter

• f Trout Unlimited v. New York, 273 F. 3d 481, 492 (2nd Cir. 2001). As the Court explained, the only

disagreement for the parties is whether there are two pots of soup. The District focused on the hydrological connections between the two, noting that water naturally and continually flows from the wetland back to the C-11 basin and that the two share a common aquifer. The Miccosukee countered by describing the separate and distinct ecosystem characteristics of the two. The district court concluded that C-11 and the wetland are distinct because water does not move into the wetland naturally. The lower court reasoned that water only moves from C-11 to the wetland via the pump station, so they are two different bodies of water. The Supreme Court did not evaluate the lower court's test, but instead found there was an unresolved factual issue as to whether C-11 and the wetland are two distinct water bodies. The Supreme Court remanded the case to the lower court to develop the factual record. If the lower court determines the canal and the wetland comprise a single water body, then the pump station will not need an NPDES permit. If, however, the court concludes they are two distinct water bodies, the pump station will be required to get a permit to discharge the polluted water into the wetland.

CONCLUSION

This case has been closely watched by the hydropower industry. Typically, no NPDES permit is required for construction or operation of a hydropower facility (although a certification under Section 401 of the Clean Water Act is necessary). The Court's decision was not as sweeping as many had feared. If the "unitary waters" concept prevails, simple transfers of water between water bodies may not require an NPDES permit. It seems reasonably clear that withdrawing water and redepositing it into the same water body should not require an NPDES permit. As most hydropower projects involve a conveyance within a single body of water, most projects should be able to maintain their exemption from NPDES permitting. However, depending on the ultimate resolution of the issues that the Court remanded, we may see more disputes in the hydropower context regarding what constitutes the "same" or "different" bodies of water — for example, when the presence of the project alters water quality characteristics, or when waters from a tributary are discharged to the mainstem of a river.