Revisiting Miccosukee: Court rules NPDES permits required for water transfers
December, 2006
In a December, 2006 decision in a Clean Water Act case with national implications, a federal district court judge in Florida rejected EPA's Proposed Water Transfer Rule[1] exempting such transfers from the NPDES program. The court held in Friends of the Everglades v. South Florida Water Management District ("Miccosukee II") [2] that the South Florida Water Management District ("SFWMD") must obtain a National Pollution Discharge Elimination System ("NPDES") permit[3] in order to continue "back-pumping" water from canals into Lake Okeechobee for flood control and water supply augmentation.[4] In its 107 page ruling, the Court explicitly addressed questions that the U.S. Supreme Court left open in its 2004 decision in a related case, South Florida Water Management District v. Miccosukee Tribe ("Miccosukee I")[5].
Case History
The SFWMD is an independent, special district of the state of Florida responsible for the operation and maintenance of pump stations that pump water into Lake Okeechobee as part of the nearly 12,000 square mile Central and South Florida Project for Flood Control and Other Purposes ("CS&F").[6]
The CS&F is a comprehensive plan first developed by the state in the 1930s to provide flood control, supply water, and protect fish and wildlife resources. Through a system of canals, levees, spillways, dikes and pump stations, the CS&F moves billions of gallons of water daily, and is responsible for the reclamation of much of the land in South Florida, providing the flood protection and stable water supply that allows millions of people to live in the flood plain of the 15,000 square mile Everglades ecosystem.[7]
Lake Okeechobee is the largest body of fresh water in the southeastern United States, and the second largest freshwater lake in the lower 48. The Lake, a "navigable water" as that term is defined under the Clean Water Act ("CWA"),[8] dominates the geography of Southern Florida.[9] The Lake functions, in part, as a reservoir for the CS&F to collect and supply water to the urban, agricultural and natural systems throughout the southern Florida peninsula. It also provides flood protection for much of south Florida, serves a multimillion dollar sport and commercial fishery, and provides habitat for wading birds, migratory waterfowl, and the federally endangered Everglades Snail Kite.[10]
The Lake's natural water flow has been replaced by a series of man-made structures, and water is routed through a series of conveyance systems, and managed as a whole.[11] The structures at the center of the Miccosukee II dispute are Pump Stations S-2, S-3, and S-4,[12] flow diversion facilities at the south end of the lake constructed by the Corps of Engineers for flood control and to supply drinking water to several municipalities.[13] S-2, S-3 and S-4 convey "navigable waters" from five CS&F canals to Lake Okeechobee without subjecting the waters to any intervening industrial, municipal or commercial use or introducing anything to the water as it is conveyed to Lake Okeechobee. The conveyed waters contain pollutants[14] which are already present when the waters enter the pumps, either because they are naturally occurring, or were introduced to the waters by some other upstream source or land use.[15] The SFWMD has no NPDES permits for the operation of its S-2, S-3 and S-4 pump stations.
Miccosukee I
The CWA prohibits the addition of a pollutant into any navigable water without a permit.[16] The CWA broadly defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source."[17] However, when Congress enacted the CWA in 1972, it did not define "addition" and that term's interpretation has become the focus of litigation.
Miccosukee I involved a challenge by the Miccosukee Tribe to SFWMD's non-permitted transfers of phosphorous-laden water from a CS&F canal through pumping station S-9 into a large undeveloped wetland area called WCA-3, the largest of several CS&F water conservation areas where the SFWMD impounds water for conservation and wetlands preservation. In its defense, SFWMD argued 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 SFWMD and the United States, an intervenor in the case, also argued that the canal and the receiving waters were not distinct water bodies and thus the movement of water was within the same body of water and no permit was required.
Rejecting those arguments, the Supreme Court concluded that the fact that SFWDM did not add the pollutant to the water it was transferring did not exempt it from NPDES permit requirements; the act of conveying the pollutant to the receiving body implicates the CWA.[18] However, finding that the record was insufficient to determine whether the canal and the receiving body were, in fact, two meaningfully distinct water bodies, the Supreme Court remanded the "S-9" case to the district court without determining whether the water transfer required an NPDES permit.[19] For further analysis of Miccosukee I, see EPA Says No NPDES Permit Required for Water Transfers.[20]
Miccosukee II
Miccosukee II was filed in April, 2002, with the plaintiffs seeking an order requiring the SWFWMD to obtain an NPDES permit before it could discharge water containing pollutants into Lake Okeechobee. Miccosukee II was consolidated with a third back-pumping case, Florida Wildlife Federation v. SFWMD in December, 2002. All proceedings were stayed in July, 2003 when the Supreme Court accepted certiorari of Miccosukee I.
The District Court reopened Miccosukee II following the Supreme Court's decision in Miccosukee I. The SFWMD argued that NPDES permits are required only when an activity adds a pollutant to navigable waters, and activities that move water from one navigable water to another do not result in the addition of a pollutant to a navigable water.[21] Alternatively, the SFWMD and the United States argued that, consistent with EPA's Proposed Water Transfer Rule, [22] the conveyance of one water of the United States into another without subjecting the water to intervening industrial, municipal or commercial use should be exempt from regulation under the NPDES permitting program.
The Court's ruling addresses two key issues: (1) whether the CWA requires an NPDES permit for water transfers resulting in the addition of a pollutant to a receiving body; and (2) if so, whether the canals are meaningfully distinct from Lake Okeechobee.[23] In a lengthy analysis, the Court concluded that the CWA unambiguously requires an NPDES permit for water transfers that result in the addition of a pollutant to the receiving body and, notwithstanding the hydrological interconnectivity of the system, that the canals and the Lake were distinct water bodies.
In concluding that the canals and the Lake were distinct water bodies, and that back-pumping requires an NPDES permit, the District Court directly addressed – and rejected – EPA's proposed Water Transfer Rule.
Rejection of EPA's Proposed Water Transfer Rule
EPA's Proposed Rule codifies an August 5, 2005 EPA policy memorandum, issued following Miccosukee I, to articulate EPA's position on an issue it characterized as unresolved following Miccosukee I: namely, "whether the movement of pollutants from one navigable water to another by a water transfer is the ‘addition' of a pollutant subjecting the activity to" NPDES permitting requirements. The Proposed Rule, which is consistent with the position the United States took in Miccosukee I, defines a water transfer as "an activity that conveys waters of the United States to another water of the United States without subjecting the water to intervening industrial, municipal or commercial use" and exempts such transfers from NPDES permit requirements. For further analysis of the Water Transfer Rule, see Debate Continues on Whether Water Transfers are Exempt from NPDES Permit Requirements.[24]
In holding that water transfers between distinct water bodies that result in the addition of a pollutant to the receiving navigable water body are subject to the NPDES permitting program, the Miccosukee II court expressly rejected EPA's Proposed Rule. "[T]he statute is unambiguous. No agency interpretation, or court order for that matter, can alter the unambiguous congressional intent expressed in a statute and the Court thus rejects the interpretation proposed by EPA."[25]
The Ruling
The District Court entered judgment for the Friends of the Everglades and the Miccosukee Tribe, to be deferred pending further proceedings to consider the appropriate penalty, and the propriety of injunctive relief.[26] The Court did not immediately enjoin the back-pumping because of the flooding that was likely to result. It also indicated that framing the remedy would likely be a difficult task, and invited additional briefing by the parties, to be filed by December 22, 2006.
Reaction
Friends of the Everglades and the Miccosukee Tribe, plaintiffs in Miccosukee II, are calling the decision "a great victory for the environment, Lake Okeechobee, and the Miccosukee Tribe."[27] An attorney for the Florida Wildlife Federation, another plaintiff, called the decision "a dagger in the heart of the proposed EPA rule."[28]
SFWMD indicated that it is disappointed with the ruling, and that requiring an NPDES permit will hamper its ability to routinely move water for the benefit of the public, thereby distracting the district from its "forward momentum with Everglades restoration" and forcing it to "refocus [its] efforts away from progress and action in order to … comply with mandatory and time-consuming permit processing."[29] EPA said that the Miccosukee II decision will not affect its planned issuance of the Water Transfer Rule next year. "We are committed to increasing certainty and predictability and ensuring water quality managers retain important tools to protect waterbodies." [30] No party has yet indicated whether it is planning to appeal.
Conclusion
The impact of the Miccosukee II decision will be wide-reaching, with municipal and federal water supply and management projects throughout the country now facing the prospect of obtaining NPDES permits. Miccosukee II also joins Catskills IIin questioning the validity of EPA's Proposed Water Transfer Rule. If and when EPA does issue its Rule, it is almost certain to be challenged.
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[1] National Pollution Discharge Elimination System (NPDES) Water Transfers Proposed Rule, 71 Fed.Reg. 32887, available at http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=040696390103+1+0+0&WAISaction=retrieve .
[2] Case No. 02-80309-CMA, Document No. 636 (12/11/2006) (hereinafter, "Opinion").
[3] 33 U.S.C. § 1342.
[4] 33 U.S.C. § 1251 et seq.
[5] 541 U.S. 95, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004).
[6] Miccosukee I focused on the transfer of water between five CS&F projects: the C-11 canal, pump station S-9, undeveloped wetland WCA-3, and levees L-33 and L-37. Miccosukee II focused three CS&F structures: pump stations S-2, S-3, and S-4.
[7] Opinion, at 12 – 13.
[8] 33 U.S.C. § 1362(7); 40 C.F.R. § 230.3(s); 33 C.F.R. § 328.3(a).
[9] The Lake covers an area of approximately 730 square miles and has an average lake-wide depth of nine feet. Opinion, at 14.
[10] Opinion, at 14.
[11] Opinion, at 19-20.
[12] Each pump station has three or four pumps, each powered by a diesel engine approximately the size of three tractor-trailer engines. Each engine drives a pump with an impellor that is 12 feet in diameter, and each pump is capable of transporting approximately 900 cubic feet of water per second. Operating at full capacity, the flow rate from just one of the pump stations is comparable to the flow of a medium-sized Florida river. Opinion, at 24.
[13] Although SFWMD is responsible for operating and maintaining most of the CS&F structures, including S-2, S-3 and S-4, in operating the structures there is a tremendous amount of coordination with the Corps. Opinion, at 12-13. The Corps developed the water control plan for the operaton of the CS&F system. Opinion at 13, n. 14.
[14] Id at 24 – 25. The water back-pumped into Lake Okeechobee contains at least the following pollutants: color, nitrogen, phosphorous, total suspended solids, high biological demand, dissolved solids (including dissolved organics), low quantities of dissolved oxygen, and un-ionized ammonia. Lake Okeechobee is the drinking water source for several cities, and back-pumping events cause increases in the water's hardness, turbidity, and color. The SFWMD has received complaints from the cities that back-pumping causes an unpleasant odor and taste in their drinking water supplies.
[15] Id at 32 – 33.
[16] 33 U.S.C. § 1311(a).
[17] 33 U.S.C. § 1362(12).
[18] 541 U.S. at 105.
[19] Id at 112.
[20] http://www.martenlaw.com/news/?20051012-no-permit-required.
[21] Opinion, at 60.
[22] Id, at 83 – 84.
[23] Opinion, at 58.
[24] http://www.martenlaw.com/news/?20060802-npdes-permit-requirements
[25] Id.
[26] Id, at 106.
[27] Curt Anderson, Associated Press, "Federal Judge Rules Water Managers Illegally Pumped Dirty Water into Lake O," (12/12/06), available at http://www.sfwmd.gov/newsr/3_newsrel.html#npdes.
[28] Id.
[29] "Steadfast in its Commitment to Everglades Restoration, SFWMD Says U.S. District Court Ruling Offers No Additional Benefit to the Environment," December 11, 2006 SFWMD Press Release, available at http://www.sfwmd.gov/newsr/3_newsrel.html#npdes.
[30] Lucy Kafanov, "Water Pollution: Fla. agency's ‘backpumping' to lake violates U.S. law, judge rules. Greenwire, 12/12/06 (requires subscription). The United States, which intervened in Miccosukee II as a defendant, urged the District Court to carefully consider the broader implications of its decision. Citing federalism concerns, the U.S. asserted that while the back-pumping at issue may not have a significant impact on Florida's water allocation activities, "permitting analogous activities could potentially cripple water management activities throughout the country, particularly in the West." Opinion, at 79.
[31] Catskill Mountains Ch. of Trout Unltd., Inc. v. City of New York, 451 F.3d 77 (2nd Cir. 2006); See Interbasin Water Transfers Require NPDES Permit, Court Rules, http://www.martenlaw.com/news/?20060719-npdes-permit-required