South Florida's Muddy
Waters: Why Both Sides Are Declaring Victory After a Supreme Court
Clean Water Act Decision
On March 23, 2004, the Supreme Court issued its 8-1 decision
in South Florida Water Management District v. Miccosukee Tribe,
a closely-watched Everglades dispute. Bosh sides immediately declared
victory.
Environmentalists applauded the Court's rejection of one insidious
anti-environmental argument that had been raised by the SFWMD.
On the other hand, the Court also vacated a ruling of the U.S.
Court of Appeals for the Eleventh Circuit in favor of the Tribe
and remanded for further proceedings.
In so doing, it left the door open to another contention that
could be disastrous for water quality protection.
At the Heart of the Dispute: Pollution from an Everglades Flood
Control Station.
The question before the Court was whether the South Florida Water
Management District (SFWMD) must obtain a Clean Water Act permit
for its massive, diesel-powered pump station in the eastern Everglades.
The station propels water uphill from a drainage canal containing
Broward County's urban run-off into a 915 square mile Everglades
conservation area, which is leased in perpetuity to the Miccosukee
Tribe.
Without the pump station, western Broward County would flood
within days. Except Broward's run-off is highly polluted, containing
levels of phosphorous up to ten times higher than the applicable
water quality standard.
The elevated phosphorous is noxious to fish and native flora,
such as sawgrass, that provide critical habitat for endangered
species. The Tribe charges that its formerly pristine waters have
become a "cesspool."
If the SFWMD ultimately loses the case ,after proceedings on
remand , it would be forced to obtain a permit for the pump station.
A permit would likely require installation of expensive controls
to ratchet down pollution. Because SFWMD operates over a dozen
similar pumps across the Everglades, millions of dollars and the
health of large swaths of the Everglades are potentially at stake.
The Decision Defines a "Discharge"
So does the Clean Water Act apply to the pump?
The Act requires a permit for pollutant discharges, and a "discharge"
is defined as "any addition" of "any pollutant"
to the navigable waters of the United States "from"
any point source.
The SFWMD's argued that the pollutants coming out of the pump
were not technically "from" the pump and were not technically
an "addition" of pollutants because the pump was merely
moving already-polluted water from one place to another.
With this argument, SFWMD attempted to open a gaping loophole
in the Clean Water Act.
If adopted, the argument could have left thousands of other
wetlands, lakes and rivers around the United States exposed to
unregulated pollution.
The Court rightly rejected SFWMD's contention. As Justice O'Connor
explained in her opinion, the Act defines a "point source"
as a "discernible, confined, and discrete conveyance, including
,any pipe, ditch, channel, or tunnel?" These are all objects,
she explained, "that do not themselves generate pollutants
but merely transport them."
Justice O'Connor's logic is persuasive.
It makes little difference, from the ecological perspective
of the receiving body of water, whether pollutants are discharged
directly from a factory's discharge pipe or through a conveyance
of foul water from some separate and distinct water xbody.
Either way, there is an "addition" of pollutants that
should be subject to the Act.
The rejection of SFWMD's position is an important advance for
water quality protection.
After all, as Justice Breyer had noted during oral argument,
if only the original discharge of pollutants into water is controlled
by the Clean Water Act, one could pipe water from a "river
that's so filthy that you can set fire to it" into a "pristine
trout pond," without any penalty. Surely, that's not what
Congress envisioned when it passed the Clean Water Act.
Further Fact-Finding Needed Before the Ultimate Outcome Is Reached
In Miccosukee, however, the Court was not ready to conclude that
the Broward County drainage canal and the Miccosukee's conservation
area were truly separate and distinct water bodies, and remanded
the case for further fact-finding.
All sides agreed that movement of pollution within the same body
of water does not fall under the Clean Water Act because there
is no "addition" of pollutants.
As Justice O'Connor vividly analogized, "[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."
The SFWMD argued, in essence, that the Everglades was all one
pot of water and that its pump caused no "addition"
of pollutants from one water body to another.
Without deciding the issue, the Court suggested that the SFWMD
might be right.
It noted that there are groundwater connections between the Broward
County canal and the Miccosukee's conservation area, that there
was "seepage" across the levees near the pump, and that
waters in the canal might flood and eventually "mingle"
with the waters of the conservation area.
The Court's remand for further fact-finding muddies the waters.
However, because it suggests that courts must engage in a highly
fact-specific hydrological inquiry about whether waters are distinct
or co-mingled.
The test originally set forth by the Court of Appeals, which
examined whether pollutants would have entered the receiving body
of water "but for" the point source, was more straightforward
and easier to apply.
To be sure, the Everglades was historically a single "sheet"
of slow-moving water that extended over most of South Florida.
Everglades waters have been divided and subdivided by state
and federal authorities for six decades for flood control.
In light of this mechanical strangulation of the "River
of Grass," it is preposterous for the SFWMD to contend that
a man-made canal that drains run-off from suburbs, gas stations,
and shopping malls is somehow the same water body as the Miccosukee
Tribe's conservation area.
The Court should have rejected the erroneous contention that
the bodies of water were the same, rather than remanding. The
Bush Administration's Ludicrous "Unitary Waters" Argument
Still worse, the Court directed the lower courts to consider
the Bush Administration's ludicrous "unitary waters"
interpretation of the Clean Water Act on remand, which has the
potential to undermine water quality nationwide.
According to the Administration's brief, "'the waters of
the Unites States' should be viewed as a whole for purposes of,permitting
requirements."
Yes, you heard that right.
The Justice Department contends that the whole country is like
a big pot of soup, so the Clean Water Act does not apply when
pollutants from one water body are "ladled" into another.
Toxic waters from New York's East River can be trucked to and
dumped in Lake Tahoe, sewage treatment discharges in San Francisco
Bay can be dumped in Yellowstone Lake, and the SFWMD's pump can
discharge urban run-off into the Everglades all without a permit.
As the Administration's brief insisted:
"Once a pollutant is present in one part of the waters
of the United States, its simple conveyance to a different part
is not a discharge of a pollutant" subject to regulation
under the Act. Although "unitary waters" sounds like
an environmentalist slogan, it's easy to see how it can be used
as a license to pollute.
Incredibly, about a year ago, the Bush Administration urged the
Court not to hear the case because it was not of "national
significance" and there was already a consensus among the
lower courts that transfers of polluted water from one water body
to another did require a permit.
But once the Court took the case, the Justice Department unveiled
its novel "unitary waters" argument, which is fatuous
as a matter of hydrology, unworkable as practical policy, and
detrimental to water quality protection nationwide.
As Justice O'Connor appropriately noted, the Act "protects
individual water bodies as well as the 'waters of the United States'
as a whole."
The Act recognizes that water bodies have distinct uses and
pollution levels, and each state sets its water quality standards
on a water body by water body basis. If the "unitary waters"
interpretation were correct, how could these particularized standards
ever be achieved through permitting?
The answer is obvious:
The goals of the Act would be undermined, not promoted, by the
"unitary waters" theory. Yet rather than rejecting the
Administration's pernicious theory, the Court allowed the parties
to argue it on remand, breathing life into an anti-environmental
interpretation of the Act that should have been permanently submerged
by the Court.Scalia Sides with the Environmentalists
Surprisingly, Justice Scalia dissented from the decision to remand
and said he would have affirmed the Court of Appeals decision
in favor of the Tribe.
Scalia argued that the "unitary waters" theory was
a sidebar issue that did not have to be reached to decide the
case. And with respect to the question of whether distinct bodies
of water existed in this case, he criticized the majority for
speculating about various hydrological links that the parties
themselves had not contemplated.
This makes Miccosukee a rare "pro-environment" vote
by Scalia, who has been ranked near the bottom of modern Supreme
Court justices for environmentally-protective voting.
After proceedings on remand, this case could come back before
the Court as early as next Term.
If the Court ultimately rules in favor of the Tribe, it will
be a victory for Everglades ecology and for the Act's promise
of "fishable, swimmable" waters nationwide.
If the Court rules for the SFWMD , or worse, adopts the "unitary
waters" theory ,the Clean Water Act itself could become mired
in this Everglades swamp.
It would have the ripple effect of allowing continued unregulated
pollution of rivers, lakes, and streams across the country.
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