SUPREME COURT RULES ON S-9 PUMP STATION DISPUTE

     On March 23, 2004, the United States Supreme Court issued its decision in the matter of South Florida Water Management District v. Miccosukee Tribe of Indians, et. al.,. The Supreme Court found issues of material fact on the issue of whether the water bodies separated by the S-9 pump station – the C-11 canal and the wetland area known as WCA-3 – are two bodies of water or, if left to nature, a single body of water and remanded the matter back to the trial court for development of the record in this area. Of particular note, the decision also allows the Government to raise the issue of the “unitary water” argument – an issue raised initially in its amicus brief.

     The case involved the Central and South Florida Flood Control Project, which has five parts: the C-11 canal; the S-9 pump station, which pumps water from the C-11 canal into the third element of the Project, the wetland area known as WCA-3; and two levees, L-33 and L-37, which keep the waters pumped into WCA-3 from flowing back into the C-11 canal. [1]  The issue in the case is whether the discharge of water from the C-11 canal from the S-9 pump into WCA-3 requires an NPDES permit. The trial court concluded that the C-11 and WCA-3 were separate bodies of waters of the United States and thus the discharge of waters from the C-11 canal, which was contaminated with phosphorous, into WCA-3 was a point source requiring a permit. The Eleventh Circuit affirmed.

     The majority of the Supreme Court’s opinion focuses on the “unitary water” argument advanced by the Government in its amicus brief. Under this theory, all the navigable waters within the United States should be considered unitarily for purposes of NPDES permitting. Under this theory, pollution caused by the engineered transfer of water from one navigable water to another would not require an NPDES permit because the discharge could not be a release of pollutants into waters of the United States since, as a unitary body of water, the pollutant was already there. As noted, the Court declined to rule on this issue but permitted the Government to raise the issue on remand. Of particular note, the opinion points out that the Government’s brief did not identify any EPA documents espousing the “unitary water” theory [2] or any reported caselaw addressing the “unitary water” theory as espoused in the Government’s brief.

     Instead, the Supreme Court finds material issues of fact precluding summary judgment on the question of whether C-11 and WCA-3 are, in fact, two separate bodies of water. Are the water bodies separate, as the Tribe contends? Or, if the S-9 pump were shut down, would the area flood forming a large body of water over the C-11 and WCA-3 basin. This is the question that the Supreme Court has sent back to the trial court for further development of the record.

[1]  The District maintains the water level in WCA-3 at a level higher than the lands drained by the C-11 canal.

[2]  Indeed, Former Administrator Carol Browner’s amicus notes that the EPA, at one time, reached the opposite conclusion