The U.S. Supreme Court has decided a groundbreaking Clean Water Act (CWA) case, holding that the passive conveyance of pollutants into jurisdictional waters requires a discharge permit under the Act's National Pollutant Discharge Elimination System (NPDES) program regardless of whether the pollutants originate from that discharge. South Florida Water Management District v. Miccosukee Tribe of Indians, et al. (March 23, 2004). While the Court remanded the case for further findings, the ruling may affect municipalities, water districts, industrial facilities and agricultural users that transfer water from one location to another.
The NPDES program is a cornerstone of the CWA that requires dischargers to obtain permits that often limit the type and quantity of pollutants that can be released into navigable waters of the United States. 33 U.S.C. §§ 1311, 1342. The CWA defines the "discharge of a pollutant" to mean "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). "Navigable waters of the United States" has been broadly interpreted to include virtually all surface waters, even when present only seasonally. Similarly, "pollutant" has been broadly defined to include sand, rock, agricultural waste, biological materials and heat, in addition to sewage, chemical wastes and other materials more commonly considered to be pollutants. 33 U.S.C. §§ 1362(6).
In South Florida, the Court addressed the question of whether the South Florida Water Management District was required to obtain an NPDES permit for the pumping of water between portions of its extensive network of flood control facilities within the Everglades. Due to the drainage of agricultural lands and urban runoff, the water pumped from one area to another in the flood control network contained a significant amount of phosphorous. The Miccosukee Tribe and a local environmental organization filed a CWA "citizen suit" against the District, arguing that the transfer of phosphorous-laden water constituted the addition of a pollutant, requiring an NPDES permit, and that the District's pumping of water without a permit constituted a CWA violation. The trial court agreed and the Eleventh Circuit Court of Appeals affirmed.
The District argued that it did not need an NPDES permit for intra-basin water pumping because the NPDES program only applies when a pollutant originates from a point source and not when water already containing pollutants is merely pumped from one location to another. The Court rejected this argument, holding that a point source need not be the original source of a pollutant but, instead, need only convey the pollutant to navigable waters. The Court explained that, were it to accept the District's argument, this would exempt a substantial number of pipes, ditches, tunnels and conduits, as well as municipal wastewater treatment plants, that do not generate pollutants but are highlighted in the CWA as examples of regulated point sources.
The Court also examined the District's factual argument that the relevant water bodies were so hydrologically connected via surface and ground water flow that they constituted indistinguishable parts of a "single water body" such that there was no "addition" of a pollutant to navigable waters. After examining the record, the Court concluded that the District had introduced evidence demonstrating a disputed issue of material fact on whether there was a "significant mingling" of the two water bodies, making the trial court's summary judgment ruling inappropriate. Without adopting any specific test for determining the sufficiency of a hydrological connection the Court remanded this issue for further trial court proceedings.
The Court's decision in South Florida establishes precedent that pollutants cannot be conveyed by a point source into navigable waters without an NPDES permit, regardless of whether those pollutants originate from the discharger. This decision raises significant implications for public and private companies—including municipalities, water districts, industrial and manufacturing facilities, and agricultural users—that passively convey "upstream" pollutants into waters subject to CWA jurisdiction. The requirement for an NPDES permit in such circumstances could subject dischargers to substantial regulatory requirements including monitoring, sampling and treatment under the CWA, as well as significant penalties for non-compliance.
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