SOUTH FLORIDA WATER MANAGEMENT DISTRICT
v. MICCOSUKEE TRIBE OF INDIANS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
Argued January 14, 2004 - Decided March 23, 2004
Full text: http://www.everglades.org/02-626-opinion.pdf
(PDF, 19 pages, 210kb)
Excerpts
Congress established the Central and South Florida Flood
Control Project
(Project) to address drainage and flood control problems in
reclaimed
portions of the Everglades. Five Project elements are at issue
here. The
first, the "C-11" canal, collects ground water and rainwater from
an area
that includes urban, agricultural, and residential development.
The second
Project element, pump station "S-9," moves water from the canal
to the
third element, an undeveloped wetland, "WCA-3," which is a
remnant of the
original South Florida Everglades. Petitioner, the Project's
day-to-day
operator (hereinafter District), impounds the water there to keep
if from
flowing into the ocean and to preserve wetlands habitat. Absent
such human
intervention, the water would flow back to the canal and flood
the C-11
basin's populated areas. Such flow is prevented by levees,
including the "L-
33" and "L-37" levees at issue here. The combined effect of L-33,
L-37, C-
11, and S-9 is artificially to separate the C-11 basin from
WCA-3, which
would otherwise be a single wetland. The Project
has an environmental impact on wetland ecosystems. Rain on the
western side
of L-33 and L-37 falls into WCA-3's wetland ecosystem, but rain
falling on
the eastern side absorbs contaminants, including phosphorous from
fertilizers, before entering the C-11 canal. When that water is
pumped
across the levees, the phosphorus alters the WCA-3
ecosystem’s balance,
stimulating the growth of algae and plants foreign to the
Everglades.
Respondents (hereinafter Tribe) filed suit under the Clean Water
Act (Act),
which prohibits "the discharge of any pollutant by any person"
unless done
in compliance with the Act, 33 U. S. C. §1311(a). Under the Act's
National
Pollutant Discharge Elimination System (NPDES), dischargers must
obtain
permits limiting the type and quantity of pollutants they can
release into
the Nation's waters. §1342. The Act defines "discharge of a
pollutant"
as "any addition of any pollutant to navigable waters from any
point
source," §1362(12), and defines ''point source'' as "any
discernible,
confined and discrete conveyance" "from which pollutants are or
may be
discharged," §1362(14). The Tribe claims that S-9 requires an
NPDES permit
because it moves phosphorusladen water from C-11 into WCA-3, but
the
District contends that S-9's operation does not constitute the
"discharge
of [a] pollutant" under the Act. The District Court granted the
Tribe
summary judgment, and the Eleventh Circuit affirmed. Both rested
their
holdings on the predicate determination that C-11 and WCA-3 are
two
distinct water bodies.
Held: The case is remanded for further proceedings regarding
the parties'
factual dispute over whether C-11 and WCA-3 are meaningfully
distinct water bodies. Pp. 6-14.
(a) Each of three arguments advanced by the District and the
Federal
Government as amicus would, if accepted, lead to the conclusion
that S-9
does not require an NPDES permit. P. 6.
(b) The Court rejects the District's initial argument that the
NPDES
program covers a point source only when pollutants originate from
that
source and not when pollutants originating elsewhere merely pass
through
the point source. The definition of a point source as a
"conveyance," §1362
(14), makes plain that the point source need only convey the
pollutant to
navigable waters. The Act's examples of point sources--pipes,
ditches,
tunnels, and conduits--are objects that transport, but do not
generate,
pollutants. And one of the Act’s primary goals was to impose
NPDES
permitting requirements on municipal wastewater treatment plants,
which
treat and discharge pollutants added to water by others. Pp. 7-8.
(c) The Government contends that all water bodies that are
navigable waters
under the Act should be viewed unitarily for purposes of NPDES
permitting.
Because the Act requires NPDES permits only when a pollutant is
added to
navigable waters, the Government contends that such permits are
not
required when water from one navigable body is discharged,
unaltered, into
another navigable body. Despite the relevance of this "unitary
waters"
approach, neither the District nor the Government raised it
before the
Eleventh Circuit or in their briefs respecting certiorari, and
this Court
is unaware of any case that has examined the argument in its
present form.
Thus, the Court declines to resolve the argument here. However,
because the
judgment must be vacated in any event, the unitary waters
argument will be
open to the parties on remand. Pp. 8-12.
(d) The District and the Government believe that the C-11
canal and WCA-3
impoundment area are not distinct water bodies, but are two
hydrologically
indistinguishable parts of a single water body. The Tribe agrees
that, if
this is so, pumping water from one into the other cannot
constitute
an "addition" of pollutants within the meaning of the Act, but it
disputes
the District's factual premise that C-11 and WCA-3 are one. The
parties
also disagree about how the relationship between S-9 and WCA-3
should be
assessed. This Court does not decide here whether the District
Court's test
is adequate for determining whether C-11 and WCA-3 are distinct,
because
that court applied its test prematurely. Summary judgment is
appropriate
only where there is no genuine issue of material fact, but some
factual
issues remain unresolved here. The District Court correctly
characterized
the flow through S-9 as nonnatural, and it appears that if S-9
were shut
down, the water in the C-11 canal might for a brief time flow
east, rather
than west. But the record also suggests that if S-9 were shut
down, the
area drained by C-11 would flood, which might mean C-11 would no
longer be
a distinct body of navigable water, but instead part of a larger
water body
extending over WCA-3 and the C-11 basin. It also might call into
question
the Eleventh Circuit's conclusion that S-9 is the cause in fact
of
phosphorous addition to WCA-3. Nothing in the record suggests
that the
District Court considered these issues when it granted summary
judgment.
If, after further development of the record, that court concludes
that C-11
and WCA-3 are not meaningfully distinct water bodies, S-9 will
not need an
NPDES permit. Pp. 12-14.
280 F. 3d 1364, vacated and remanded.
O'CONNOR, J., delivered the opinion of the Court, Parts I and
II–A of
which were unanimous, and Parts II-B and II-C of which were
joined
by REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, THOMAS,
GINSBURG, and BREYER, JJ. SCALIA, J., filed an opinion concurring
in
part and dissenting in part.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before
publication in the
preliminary print of the United States Reports. Readers are
requested to
notify the Reporter of Decisions, Supreme Court of the United
States,
Washington, D. C. 20543, of any typographical or other formal
errors, in
order that corrections may be made before the preliminary print
goes to
press.
SUPREME COURT OF THE UNITED STATES
No. 02_626
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
PETITIONER v. MICCOSUKEE TRIBE OF
INDIANS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[March 23, 2004]
JUSTICE O’CONNOR delivered the opinion of the Court.
Petitioner South Florida Water Management District operates a
pumping
facility that transfers water from a canal into a reservoir a
short
distance away. Respondents Miccosukee Tribe of Indians and the
Friends of
the Everglades brought a citizen suit under the Clean Water Act
contending
that the pumping facility is required to obtain a discharge
permit under
the National Pollutant Discharge Elimination System. The District
Court
agreed and granted summary judgment to respondents. A panel of
the United
States Court of Appeals for the Eleventh Circuit affirmed. Both
the
District Court and the Eleventh Circuit rested their holdings on
the
predicate determination that the canal and reservoir are two
distinct water
bodies. For the reasons explained below, we vacate and remand for
further
development of the factual record as to the accuracy of that
determination.
<cut>
JUSTICE SCALIA, concurring in part and dissenting in part.
I join Parts I and II–A of the Court’s opinion, which hold
that a
point source is not exempt from the NPDES permit requirement
merely because
it does not itself add pollutants to the water it pumps. I
dissent,
however, from its decision to vacate the judgment below on
another ground,
Part II–C, ante, and to invite consideration of yet another legal
theory,
Part II–B, ante. Neither of those actions is taken in response to
the
question presented. I would affirm the Court of Appeals’
disposition of the
question presented without reaching other issues.
Parts II–B and II–C are problematic for other reasons as
well. In Part II–
B, the Court declines to resolve the Government ’s unitary-waters
argument
on the ground that it was not raised or decided below. See ante,
at 11. In
my judgment, a fair reading of the opinion and briefs does not
support that
contention. See, e.g., 280 F. 3d 1364, 1368, n. 5 (CA11 2002)(“We
reject
the Water District’s argument that no addition of pollutants can
occur
unless pollutants are added from the outside world insofar as the
Water
District contends the outside world cannot include another body
of
navigable waters” (emphasis added)); Brief for Appellant in No.
00–15703–CC
(CA11), p. 10 (“The S–9 pump station merely moves navigable
waters from one
side of the Levee to another”). That the argument was not phrased
in the
same terms or argued with the same clarity does not mean it was
not made. I
see no point in directing the Court of Appeals to consider an
argument it
has already rejected.
I also question the Court’s holding in Part II–C that summary
judgment
was precluded by the possibility that, if the pumping station
were shut
down, flooding in the C– 11 basin might ultimately cause
pollutants to flow
from C–11 to WCA–3. Ante, at 13–14. To my knowledge, that
argument has
not previously been made. Petitioner argued that WCA–3 and C–11
were
historically part of the same ecosystem and that they remain
hydrologically
related, see Brief for Petitioner 46–49, but that is quite
different from
arguing that, absent S–9, pollutants would flow from C–11 to WCA–3
(a
journey that, at the moment, is uphill). Nothing in Celotex Corp.
v.
Catrett, 477 U. S. 317 (1986), requires a district court to
speculate sua
sponte about possibilities even the parties have not
contemplated.
Cf. Fed. Rule Civ. Proc. 56(e) (opponent of summary judgment
must “set
forth specific facts showing that there is a genuine issue for
trial”).
I would affirm the judgment below as to the question
presented, leaving the
Government’s unitary-waters theory to be considered in another
case.
<end>