No. 02_626       


Argued January 14, 2004 - Decided March 23, 2004

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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
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

No. 02_626


[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.




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.