South Florida Water Management District v. Miccosukee Tribe of Indians, et al. (03/23/2004)

Questions presented: Whether the South Florida Water Management District's longstanding practice of pumping accumulated water from a water collection canal to a water conservation area within the Florida Everglades constitutes an addition of a pollutant from a point source for purposes of Section 402 the Clean Water Act, 33 U.S.C. 1342, where the water contains a pollutant but the pumping station source itself adds no pollutants to the water being pumped?

BY LYDIA SARGENT, MEDILL NEWS SERVICE

For the Miccosukee Tribe of Indians, the waters of the Everglades in Southern Florida are more than just a place of recreation.

They are sacred to the Tribe, which has lived on the land for several hundred years. In the early 1800s, the Tribe escaped genocide and forced relocation by hiding in the Everglades.

Today the Tribe holds land in the area in a perpetual lease from the State of Florida. The 550 tribal members use it for hunting, fishing and celebrating important tribal ceremonies.

So when an overgrowth of cattails indicated unnatural levels of pollutants in the waters, the Tribe brought a citizen suit in federal court against the South Florida Water Management District (district), the part of the Florida government which runs the complicated system of canals, levees and pumps throughout the Everglades.

The Tribe, along with The Friends of the Everglades, an environmental group, argued that the districts S-9 pump, which takes collected water from Broward County and pumps into the Tribes Everglades waters, is in violation of the federal Clean Water Act.

The Clean Water Act of 1975 requires all point sources of pollution to have a national pollution discharge elimination system (NPDES) permit.

The Tribe and the Friends argued that because the pump changed the direction of the water, the pump is a point source of pollution and therefore needs the federal permit.

However, the district argued that the S-9 pump was not a point source because it did not create pollution. It only moved water that contained pollutants.

However, the Tribe argued that the collected water contains chemicals from fertilizers used by residents of Broward County. And, without the S-9 pump, those chemicals would not exist in the Tribes Everglades waters.

The district court agreed with the Tribe and the Friends and ordered the pump to stop operation and obtain a NPDES permit.

The injunction was a major problem for the 136,000 residents of Broward County, who faced flooding within days if the injunction were enforced.

A unanimous 11th Circuit Court of Appeals panel affirmed the district court's judgment that the Water District violated the Clean Water Act, yet vacated the injunction, saying, "The flooding of western Broward County and the resulting displacement of the residents there do far outweigh the continued addition of low levels of phosphorus to WCA-3A without an NPDES permit."

The 11th Circuit remanded to the district court to order the water district to obtain an NPDES permit "within some reasonable period."

The opinion of the three-judge panel, written by Chief Judge J.L. Edmondson, determined that the S-9 pump does in fact change the natural flow of a body of water which contains pollutants.

The court said that the S-9 pump was responsible for the pollutants it added to the Tribes waters because if the water were to flow naturally without the pump, those pollutants would not exist in the Tribes waters.

The district sought review in the U.S. Supreme Court, arguing that the 11th Circuit had misinterpreted the Clean Water Act.

The district claimed that the misinterpretation "could add barriers to environmental protection of the Everglades, and could substantially increase the regulatory burden and cost for public water management agencies across the country."

On June 27, 2003, the final day of the Court's 2002-03 term, the Court accepted the case for review during its 03-04 term., and limited review to the first question in South Florida Water Management District's petition for certiorari.

If the Supreme Court affirms the 11th Circuits opinion, pumps all across the country could suddenly be required to obtain the federal permit. At least, this is the fear of the 49 interested groups who have filed 14 amicus briefs in favor of the water district.

Attorney John Childe with The Friends of the Everglades said he doesnt see that as a possibility.

"I've read all the briefs and I don't know of any [other] specific instances that would require a permit or be cost-prohibitive," Childe said.

On Sept. 10, 2003 the U.S. Solicitor General Theodore B. Olson filed an amicus brief on behalf of the U.S. government in favor of the water district.

"The SFWMD's pumping activity does not result in Ôthe discharge of any pollutant within the meaning of the Clean Water Act," Olson wrote.

Olson said that the Clean Water Act was not meant to be applied to pumps like the S-9 which merely "transport waters of the United States that already contain pollutants from one location to another location" and do not add outside pollutants to the waters.

Olson also said that the requiring the S-9 pump to obtain an NPDES permit would be unlikely to provide substantial environmental benefits, misdirect governmental resources and potentially hinder the Everglades restoration.

On March 23, 2004, the Court remanded the case to the federal district court in Florida to determine if the canal and the impoundment areas were distinct water bodies, and not two hydrologically indistinguishable parts of a single water body. If not, the Court stated in an opinion written by Justice Sandra Day O'Connor, then a NPDES permit would not be needed because the area would not fall under the federal Clean Water Act.

Attorneys: For South Florida Water Management District:James E. Nutt3301 Gun Club RoadWest Palm Beach, FL 33406561-682-6253For Miccosukee Tribe of Indians, et al.:Dexter W. Lehtinen7700 North Kendall DriveSuite 303Miami, FL 33156305-279-1166John E. Childe606 Pine RoadPalmyra, PA 17078Other Attorneys: For Pacific Legal Foundation:Robin L. Rivett10360 Old Placerville RoadSuite 100Sacramento, CA 95827916-362-2833For Lake Worth Drainage District, et al.:Kenneth G. Spillias1700 Palm Beach Lakes Blvd.Suite 1000West Palm Beach, FL 33401561-640-0820For Florida Fruit and Vegetable Association, et al.:Terry Cole301 S. Bronough Street#500Tallahassee, FL 32301850-521-0700For National Water Resources Association, et al.:Mark T. Pifher1120 Lincoln StreetSuite 1600Denver, CO 80203303-861-1963For City of New York, et al.:Leonard J. KoernerOffice of Corporation Counsel100 Church StreetNew York, NY 10007212-788-1585For U.S.:THEODORE B. OLSONSolicitor General, Counsel of RecordTHOMAS L. SANSONETTIAssistant Attorney GeneralEDWIN S. KNEEDLERDeputy Solicitor GeneralJEFFREY BOSSERT CLARKDeputy Assistant Attorney GeneralJEFFREY P. MINEARAssistant to the Solicitor GeneralJAMES C. KILBOURNEELLEN DURKEESYLVIA QUAST