Miccosukee v. SFWMD
98-6056-CIV-FERGUSON

Excerpts from 10/06/99 Summary Judgment



(1) SFWMD's Eleventh Amendment Immunity Argument:

"Contrary to SFWMD's assertion that the Florida constitution allows it to 
levy ad valorem taxes as a "state agency" the Constitution can only be read 
to mean that certain "special districts", SFWMD being one of the, are allowed 
ad valorem taxing authority.  Reconciliation of the statute to the 
constitution necessarily requires an interpretation that the SFWMD is not a 
state agency.  For these reasons the Court finds that on this factor SFWMD 
would not meet state law definition of an agency of the state for purposes of 
the Eleventh Amendment."

"In this case the fact that SFWMD has the power to fund itself through ad 
valorem taxation, and to borrow money and that direct financial support by 
the state is discretionary, leans in favor of a finding that SFWMD is not an 
instrumentality of state government."

"Based on the factors which the Eleventh Circuit instructs trial courts to 
consider this Court finds that SFWMD is not an arm or agency of the state for 
Eleventh Amendment."

(2) NPDES Requirement for the S-9 Pump Station:

"In this case an addition of pollutants exists because undisputedly water 
containing pollutants is being discharged through S-9 from C-11 waters into 
the Everglades, the latter being a separate body of United States water with 
a different level of water quality.  The canal and the Everglades are two 
separate bodies of water with a different level of water quality.  The canal 
and the Everglades are two separate bodies of water because the transfer of 
water or its contents from c-11 into the Everglades would not occur 
naturally.  Dubois, 102F.3d at 1297.  That at one time these two bodies of 
water were hydrologically connected is now irrelevant and ignores the 
fundamental direction of water flow.  Dubois, 102F.3d at 1298."

"SFWMD and Poole contend that S-9 is not a point source because it does not 
create the pollutants discharged into the Everglades.  They claim the C-11 
canal which contains runoffs from developed lands to the east in Broward 
county is the pollutant source.  Under the Clean Water Act, § 1362(14), a 
pipe, such as the three in S-9 is a point source because it discharges 
pollutants.  It is not necessary that the conveyance be the originator of the 
transferred contaminants.  There is no doubt in this case, and it is 
uncontested by the parties, that S-9 is discharging pollutants into the 
Everglades.  That the pollutants are not formed solely by the S-9 is 
immaterial in a plain reading of the Act."

"Conclusion: The Everglades, which includes the WCA-3A and the C-11 canal, 
are two distinct bodies of water within the meaning of the Clean Water Act 
even if the waters were hydrologically connected at one time.  The seepage 
from the C-11 canal that SFWMD refers to would not flow naturally from the 
C-11 canal to the Everglades.  The S-9 pumps effects an unnatural flow of 
water from east to west, transferring polluted water from the C-11 canal 
through the S-9 pump into relatively pristine Everglades water.  Therefore 
the pump is a point source for which a NPDES permit is required."