Major CWA Discharge Permitting Case Argued In U.S. Supreme Court

Thursday, April 1, 2004 - 01:00

On Jan. 14, 2004, the U.S. Supreme Court heard oral arguments in the case of South Florida Water Management District v. Miccosukee Tribe of Indians. In 2002, the 11th U.S. Circuit Court of Appeals upheld a lower court ruling that found in favor of the Miccosukee tribe. The Supreme Court appeal stems from a citizens' suit filed by the Miccosukee tribe, which successfully argued that a pumping station operated by the South Florida Water Management District (SFWMD) needed a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit because it was piping water containing phosphorus and other pollutants into the Everglades.

SFWMD argued that it was not the source of the contamination but was simply transferring water from one side of a levee to another. SFWMD believes that Congress intended that an NPDES permit should be required only to regulate those who add pollutants to water, requiring them to clean the water to acceptable minimum standards.

The ruling, which will provide a major new interpretation of the CWA, likely will hold great significance for all systems nationwide that manage water. In a September 2003 press release, SFWMD stated that if the lower federal court rulings stand, it could add barriers to environmental protection of the Everglades and could increase the regulatory burden and cost for public water management agencies across the United States. Several environmental protection organizations counter that if the Court finds for SFWMD, water operators nationwide could pump contaminants in water from one basin to another at will.

In a sign that the case is being watched closely, the Court has received "friend of the court" (amicus curiae) briefs from a large number of interested parties, including the U.S. Solicitor General's office and several former high-ranking officials of the U.S. Environmental Protection Agency (EPA), including former Administrator Carol Browner.

Siding with SFWMD, the Solicitor General argued that Congress never intended that facilities merely transferring water or connecting waterways should have to obtain water pollution permits. The CWA definition of "discharge of a pollutant," Solicitor Olsen suggested, does not include activities that merely convey or connect navigable waters. Moreover, he pointed out that the CWA does not require an NPDES permit for every discharge from a point source that might be described as "the cause-in-fact" of the release of pollutants into navigable waters.

Former Administrator Browner sided with the Miccosukee tribe and argued that, among other things, SFWMD pipes result in point-source discharges because they are discernable conveyances that add pollutants to a navigable body of water. She also attempted to rebut concerns that by subjecting SFWMD to Section 402, that the decision could lead to massive administrative burdens on other state authorities. Instead, former Administrator Browner argued that the "considerable flexibility offered within the Clean Water Act" would make it unlikely to result in a significant administrative burden. A decision from the U.S. Supreme Court is expected in mid-2004.

Lawrence R. Liebesman is a partner in the Washington, DC office of Holland & Knight LLP. He can be contacted at (202) 419-2477. Michael Galano is an associate in the Washington, DC office of Holland & Knight. He can be contacted at (202) 828-5081.

Please email the authors at lawrence.liebesman@hklaw.com or michael.galano@hklaw.com with questions about this article.