Muddy Waters:
Why Both Sides Are Declaring Victory After a Supreme Court Clean Water Act Decision

By NOAH SACHS

Thursday, Apr. 01, 2004

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. But 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 body. 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. But 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.


Noah Sachs practices environmental law in Boston and will begin teaching at Harvard Law School in the fall.

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