|
In South Florida Water Management District v.
Miccosukee, Case No. 02-626, the U.S. Supreme Court has agreed to
review an interpretation of the Clean Water Act (“CWA”) which, if
upheld, will require the South Florida Water Management District to
obtain federal National Pollutant Discharge Elimination System permits
whenever it needs to move water across its levees from one basin to
another, regardless whether anything is discharged into the waters
from the facilities used to move them.
A broad array of amicus curiae have filed briefs urging
reversal, including the federal government, state and local
governments, and organizations representing thousands of local
governments and water resource managers across the nation. Their
shared message is that the Eleventh Circuit’s misinterpretation of the
CWA will unduly interfere with nationwide efforts to provide for a
healthy aquatic environment and public water supply. As the federal
government concluded in its brief, the “[r]espondents insistence on
the imposition of CWA requirements designed to address distinctly
different issues would ultimately misdirect governmental resources
toward unnecessary or duplicative processes and potentially hinder the
Everglades restoration process.”
Factual Background
The South Florida Water Management District is local
sponsor for the U.S. Army Corps of Engineer’s Central and Southern
Flood Control Project (“C&SF Project”), which comprises over 1800
miles of canals and levees and several hundred water control
facilities used to manage water resources within the Everglades
ecosystem, extending from Orlando to the Keys. Surface and ground
waters are continually moved throughout the system to provide flood
protection and supply water to the public and the natural system. Not
only did the C&SF Project protect Floridians from past scourges of
flooding, salt-water intrusion, and muck fires, it also enabled rapid
land development and altered natural flow regimes, resulting in the
unintended degradation of the remaining Everglades. The C&SF Project
has revealed the Everglades’ extraordinary sensitivity to changes in
water quality as well as alterations in the timing and distribution of
quantities of water throughout the system.
Today, the federal and state governments are in the
midst of the most ambitious environmental restoration project in
history, known as the Comprehensive Everglades Restoration Plan (“CERP”).
With a shared cost exceeding $8.2 billion, a series of interrelated
projects are being designed and implemented to improve storage
capabilities, more accurately mimic natural flow cycles in the remnant
Everglades, and achieve water quality standards throughout. State
permits monitor regulatory action strategies requiring the evaluation
of land and water uses and the development of best management
practices and other methods to ensure quality goals will be achieved
for all waters entering the natural Everglades system.
With respect to the S-9 pumping station, the specific
subject of the case, CERP and other South Florida Water Management
District programs have been tailored to implement best management
practices, redirect flows, separate storm water run-off, and work with
municipalities and other developments to construct storm water
treatment systems. Construction projects exceeding $200 million
dollars have been approved and are being implemented to address the
specific water problems arising out of the areas managed by the S-9
facility.
The Clean Water Act
The CWA creates a number of different programs to
restore and maintain the integrity of the nation’s waters, providing
distinct roles for the federal and state governments. The States are
obligated to establish water quality standards and develop strategies
to meet them. Congress expressly recognized and sought to preserve the
State’s primary and traditional rights and responsibilities to
allocate water and determine local land and water uses. EPA was
specifically directed to assist the States in developing non-NPDES
“processes, procedures and methods to control pollution resulting from
. . . changes in the movement, flow, or circulation of any navigable
waters or ground waters, including changes caused by the construction
of . . . levees, . . . channels . . . and other flow diversion
facilities.” The Act’s legislative history further reflects Congress’
intent that pollution caused by changes to the natural flow of water
be dealt with on a case by case basis by those closest to the problem,
not through inflexible technologically based permit programs such as
NPDES.
In addition to providing technical support and guidance
to the states, EPA was given limited jurisdiction under § 402 to
regulate the “discharge” of wastes into the nation’s waters. The
express goal of the NPDES program is to eliminate the introduction of
wastes from outflow facilities. Congress’ clearly wanted to stop the
use of the nation’s waters for industrial and municipal waste
disposal. To that end, NPDES imposes strict effluent limitations based
upon best available technology. Effluent limitations are set numerical
targets which neither account for nor balance benefits of moving
water.
Thus, in passing the CWA, Congress clearly
distinguished between activities which discharge pollutants into the
nation’s waters, something the CWA categorically prohibits and
strictly regulates under NPDES, any pollution caused by moving water
which must be controlled with an eye toward broader land and water use
planning.
NPDES Would Hinder System-Wide Restoration
In approving CERP, Congress understood that water
quality concerns in south Florida must be addressed as part of an
overall plan taking into account the multiple objectives restoration,
water supply and flood control, including restoration of the natural
flows, timing and distribution of water throughout the system. For
their part, south Florida’s water managers have been developing, in
coordination with its federal and state partners, a comprehensive
integrated water quality plan which links water quality restoration
targets and remediation programs to the hydrologic restoration
objectives of the recommended CERP for the entire Everglades study
area.
The NPDES program, on the other hand, gives no
consideration to quantity and flow requirements of the receiving
waters. Indeed, NPDES is not designed to regulate the mere movement of
water within a system of which it is an integral part. It is designed
to reduce and ultimately eliminate flows. Theses goals are often
incompatible with systemic restoration planning.
The analysis of water quality on a
structure-by-structure basis under NPDES would undermine CERP. CERP
involves the redirection of waters, inevitably changing the pollutant
levels within various parts of the larger hydrologic ecosystem. CERP,
unlike NPDES, however, was designed to meet multiple objectives. It is
inappropriate to undertake a structure-by-structure analysis of water
quality issues as part of the NPDES permit process, without regard to
the structure’s function within the larger hydrological system. As the
responsible state and federal agencies agree, doing so will have
adverse impact upon CERP and misdirect resources.
It is noteworthy, that throughout decades of wrangling
and litigation over water issues in South Florida, not one of the
responsible federal or state agencies (including EPA), committees or
scientific groups tasked with planning Everglades restoration have
suggested that the NPDES permitting program would be better regulatory
tool, or even appropriate, for addressing the complex issues facing
south Florida’s water managers. To the contrary, the clear consensus
has been to develop the adaptive management processes incorporated in
CERP to re-plumb the C&SF Project and “get the water right.”
Conclusion
The case has never been, as respondents urge, about
whether the South Florida Water Management District should be
responsible for addressing water quality and other closely related
water issues throughout its jurisdiction. Florida has embraced its
significant role in restoring the natural systems and is expending
precedent setting resources to those ends.
Water managers nationwide dispute only the method by
which water management projects should be regulated. It is though the
multi-agency, consensus approach to restoration being developed under
careful scientific study that the water managers in this case seek to
continue their work. Unhindered by an inflexible permitting process
that threatens to divert resources and cannot adequately provide for
the overall needs of the pubic and natural systems. Thus, it is
against the piecemeal application of NPDES that the water managers
argue, not against the universal goal of restoration.
|
