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.
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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
original 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
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"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
or 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
of 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.
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