|SOUTH FLA. WATER MANAGEMENT DIST. V.MICCOSUKEE TRIBE (02-626) 541 U.S. 95 (2004)
280 F.3d 1364, vacated and remanded.
[ OConnor ]
[ Scalia ]
SOUTH FLORIDA WATER MANAGEMENT
PETITIONER v. MICCOSUKEE TRIBE
INDIANS et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[March 23, 2004]
Justice OConnor delivered the opinion of the Court.
Petitioner South Florida Water Management District operates a pumping facility that transfers water from a canal into a reservoir a short distance away. Respondents Miccosukee Tribe of Indians and the Friends of the Everglades brought a citizen suit under the Clean Water Act contending that the pumping facility is required to obtain a discharge permit under the National Pollutant Discharge Elimination System. The District Court agreed and granted summary judgment to respondents. A panel of the United States Court of Appeals for the Eleventh Circuit affirmed. Both the District Court and the Eleventh Circuit rested their holdings on the predicate determination that the canal and reservoir are two distinct water bodies. For the reasons explained below, we vacate and remand for further development of the factual record as to the accuracy of that determination.
The Central and South Florida Flood Control Project (Project) consists of a vast array of levees, canals, pumps, and water impoundment areas in the land between south Floridas coastal hills and the Everglades. Historically, that land was itself part of the Everglades, and its surface and groundwater flowed south in a uniform and unchanneled sheet. Starting in the early 1900s, however, the State began to build canals to drain the wetlands and make them suitable for cultivation. These canals proved to be a source of trouble; they lowered the water table, allowing salt water to intrude upon coastal wells, and they proved incapable of controlling flooding. Congress established the Project in 1948 to address these problems. It gave the United States Army Corps of Engineers the task of constructing a comprehensive network of levees, water storage areas, pumps, and canal improvements that would serve several simultaneous purposes, including flood protection, water conservation, and drainage. These improvements fundamentally altered the hydrology of the Everglades, changing the natural sheet flow of ground and surface water. The local sponsor and day-to-day operator of the Project is the South Florida Water Management District (District).
Five discrete elements of the Project are at issue in this case. One is a canal called C11. C11 collects groundwater and rainwater from a 104 squaremile area in south central Broward County. App. 110. The area drained by C11 includes urban, agricultural, and residential development, and is home to 136,000 people. At the western terminus of C11 is the second Project element at issue here: a large pump station known as S9. When the water level in C11 rises above a set level, S9 begins operating and pumps water out of the canal. The water does not travel far. Sixty feet away, the pump station empties the water into a large undeveloped wetland area called WCA3, the third element of the Project we consider here. WCA3 is the largest of several water conservation areas that are remnants of the original South Florida Everglades. The District impounds water in these areas to conserve fresh water that might otherwise flow directly to the ocean, and to preserve wetlands habitat. Id., at 112.
Using pump stations like S9, the District maintains the water table in WCA3 at a level significantly higher than that in the developed lands drained by the C11 canal to the east. Absent human intervention, that water would simply flow back east, where it would rejoin the waters of the canal and flood the populated areas of the C11 basin. That return flow is prevented, or, more accurately, slowed, by levees that hold back the surface waters of WCA3. Two of those levees, L33 and L37, are the final two elements of the Project at issue here. The combined effect of L33 and L37, C11, and S9 is artificially to separate the C11 basin from WCA3; left to nature, the two areas would be a single wetland covered in an undifferentiated body of surface and ground water flowing slowly southward.
As the above description illustrates, the Project has wrought large-scale hydrologic and environmental change in South Florida, some deliberate and some accidental. Its most obvious environmental impact has been the conversion of what were once wetlands into areas suitable for human use. But the Project also has affected those areas that remain wetland ecosystems.
Rain on the western side of the L33 and L37 levees falls into the wetland ecosystem of WCA3. Rain on the eastern side of the levees, on the other hand, falls on agricultural, urban, and residential land. Before it enters the C11 canal, whether directly as surface runoff or indirectly as groundwater, that rainwater absorbs contaminants produced by human activities. The water in C11 therefore differs chemically from that in WCA3. Of particular interest here, C11 water contains elevated levels of phosphorous, which is found in fertilizers used by farmers in the C11 basin. When water from C11 is pumped across the levees, the phosphorous it contains alters the balance of WCA3s ecosystem (which is naturally low in phosphorous) and stimulates the growth of algae and plants foreign to the Everglades ecosystem.
The phosphorous-related impacts of the Project are well known and have received a great deal of attention from state and federal authorities for more than 20 years. A number of initiatives are currently under way to reduce these impacts and thereby restore the ecological integrity of the Everglades. Respondents Miccosukee Tribe of Indians and the Friends of the Everglades (hereinafter simply Tribe), impatient with the pace of this progress, brought this Clean Water Act suit in the United States District Court for the Southern District of Florida. They sought, among other things, to enjoin the operation of S9 and, in turn, the conveyance of water from C11 into WCA3.
Congress enacted the Clean Water Act
(Act) in 1972. Its stated objective was to restore and
maintain the chemical, physical, and biological integrity of
the Nations waters. 86 Stat. 816, 33 U.S.C. §
1251. To serve those ends, the Act prohibits the
discharge of any pollutant by any person unless done in
compliance with some provision of the Act. §1311(a). The
provision relevant to this case, §1342, establishes the
National Pollutant Discharge Elimination System, or
NPDES. Generally speaking, the NPDES requires
dischargers to obtain permits that place limits on the type and
quantity of pollutants that can be released into the
Nations waters. The Act defines the phrase
According to the Tribe, the District cannot operate S9 without an NPDES permit because the pump station moves phosphorous-laden water from C11 into WCA3. The District does not dispute that phosphorous is a pollutant, or that C11 and WCA3 are navigable waters within the meaning of the Act. The question, it contends, is whether the operation of the S9 pump constitutes the discharge of [a] pollutant within the meaning of the Act.
The parties filed cross-motions for summary judgment on the issue of whether S9 requires an NPDES permit. The District Court granted the Tribes motion, reasoning as follows:
In this case an addition of pollutants exists because undisputedly water containing pollutants is being discharged through S9 from C11 waters into the Everglades, both of which are separate bodies of United States water with . . . different quality levels. They are two separate bodies of water because the transfer of water or its contents from C11 into the Everglades would not occur naturally. App. to Pet. for Cert. 28a29a.
The Court of Appeals affirmed. It reasoned first that in determining whether pollutants are added to navigable waters for purposes of the [Act], the receiving body of water is the relevant body of navigable water. 280 F.3d 1364, 1368 (CA11 2002). After concluding that pollutants were indeed being added to WCA3, the court then asked whether that addition of pollutants was from a point source, so as to trigger the NPDES permitting requirement. To answer that question, it explained:
[F]or an addition of pollutants to be from a point source, the relevant inquiry is whetherbut for the point sourcethe pollutants would have been added to the receiving body of water. We, therefore, conclude that an addition from a point source occurs if a point source is the cause in fact of the release of pollutants into navigable waters.
When a point source changes the natural flow of a body of water which contains pollutants and causes that water to flow into another distinct body of navigable water into which it would not have otherwise flowed, that point source is the cause-in-fact of the discharge of pollutants. Ibid. (footnote omitted).
Because it believed that the water in the C11 canal would not flow into WCA3 without the operation of the S9 pump station, the Court of Appeals concluded that S9 was the cause-in-fact of the addition of pollutants to WCA3. It accordingly affirmed the District Courts grant of summary judgment, and held that the S9 pump station requires an NPDES permit. We granted certiorari. 539 U.S. 957 (2003).
The District and the Federal Government, as amicus, advance three separate arguments, any of which would, if accepted, lead to the conclusion that the S9 pump station does not require a point source discharge permit under the NPDES program. Two of these arguments involve the application of disputed contentions of law to agreed-upon facts, while the third involves the application of agreed-upon law to disputed facts. For reasons explained below, we decline at this time to resolve all of the parties legal disagreements, and instead remand for further proceedings regarding their factual dispute.
In its opening brief on the merits, the District argued that the NPDES program applies to a point source only when a pollutant originates from the point source, and not when pollutants originating elsewhere merely pass through the point source. Brief for Petitioner 20. This argument mirrors the question presented in the Districts petition for certiorari: Whether the pumping of water by a state water management agency that adds nothing to the water being pumped constitutes an addition of a pollutant from a point source triggering the need for a National Pollutant Discharge Elimination System permit under the Clean Water Act. Pet. for Cert. i. Although the Government rejects the Districts legal position, Brief for United States as Amicus Curiae 21, it and the Tribe agree with the factual proposition that S9 does not itself add any pollutants to the water it conveys into WCA3.
This initial argument is untenable, and
even the District appears to have abandoned it in its reply
brief. Reply Brief for Petitioner 2. A point source is, by
definition, a discernible, confined, and discrete
conveyance. §1362(14) (emphasis added).
That definition makes plain that a point source need not be the
original source of the pollutant; it need only convey the
pollutant to navigable waters, which are, in turn,
defined as the waters of the United States.
§1362(7). Tellingly, the examples of point
sources listed by the Act include pipes, ditches,
tunnels, and conduits, objects that do not themselves generate
pollutants but merely transport them. §1362(14). In
addition, one of the Acts primary goals was to impose
NPDES permitting requirements on municipal wastewater treatment
plants. See, e.g., §1311(b)(1)(B) (establishing a
compliance schedule for publicly owned treatment works). But
under the Districts interpretation of the Act, the NPDES
program would not cover such plants, because they treat and
discharge pollutants added to water by others. We therefore
reject the Districts proposed reading of the definition
Having answered the precise question on
which we granted certiorari, we turn to a second argument,
advanced primarily by the Government as amicus curiae in
merits briefing and at oral argument. For purposes of
determining whether there has been any addition of any
pollutant to navigable waters from any point source,
ibid., the Government contends that all the water bodies
that fall within the Acts definition of
The unitary waters argument focuses on the Acts definition of a pollutant discharge as any addition of any pollutant to navigable waters from any point source. §1362(12). The Government contends that the absence of the word any prior to the phrase navigable waters in §1362(12) signals Congress understanding that NPDES permits would not be required for pollution caused by the engineered transfer of one navigable water into another. It argues that Congress intended that such pollution instead would be addressed through local nonpoint source pollution programs. Section 1314(f)(2(F), which concerns nonpoint sources, directs the Environmental Protection Agency (EPA) to give States information on the evaluation and control of pollution resulting from . . . changes in the movement, flow, or circulation of any navigable waters or ground waters, including changes caused by the construction of dams, levees, channels, causeways, or flow diversion facilities.
We note, however, that §1314(f)(2)(F) does not explicitly exempt nonpoint pollution sources from the NPDES program if they also fall within the point source definition. And several NPDES provisions might be read to suggest a view contrary to the unitary waters approach. For example, under the Act, a State may set individualized ambient water quality standards by taking into consideration the designated uses of the navigable waters involved. 33 U.S.C. § 1313(c)(2)(A). Those water quality standards, in turn, directly affect local NPDES permits; if standard permit conditions fail to achieve the water quality goals for a given water body, the State must determine the total pollutant load that the water body can sustain and then allocate that load among the permit-holders who discharge to the water body. §1313(d). This approach suggests that the Act protects individual water bodies as well as the waters of the United States as a whole.
The Government also suggests that we
adopt the unitary waters approach out of deference
to a longstanding EPA view that the process of
transporting, impounding, and releasing navigable
waters cannot constitute an
Finally, the Government and numerous
amici warn that affirming the Court of Appeals in this
case would have significant practical consequences. If we read
the Clean Water Act to require an NPDES permit for every
engineered diversion of one navigable water into another,
thousands of new permits might have to be issued, particularly
by western States, whose water supply networks often rely on
engineered transfers among various natural water bodies.
See Brief for Colorado et al. as Amici Curiae
24. Many of those diversions might also require
expensive treatment to meet water quality criteria. It may be
that construing the NPDES program to cover such transfers would
therefore raise the costs of water distribution prohibitively,
and violate Congress specific instruction that the
authority of each State to allocate quantities of water within
its jurisdiction shall not be superseded, abrogated or
otherwise impaired by the Act. §1251(g). On the
other hand, it may be that such permitting authority is
necessary to protect water quality, and that the States or EPA
could control regulatory costs by issuing general permits to
point sources associated with water distribution programs.
See 40 CFR §§122.28, 123.25 (2003).*
Because WCA3 and C11 are
both navigable wa-
ters, adopting the unitary waters approach would lead to the conclusion that the District may operate S9 without an NPDES permit. But despite its relevance here, neither the District nor the Government raised the unitary waters approach before the Court of Appeals or in their briefs respecting the petition for certiorari. (The District adopted the position as its own in its reply brief on the merits.) Indeed, we are not aware of any reported case that examines the unitary waters argument in precisely the form that the Government now presents it. As a result, we decline to resolve it here. Because we find it necessary to vacate the judgment of the Court of Appeals with respect to a third argument presented by the District, the unitary waters argument will be open to the parties on remand.
In the courts below, as here, the District contended that the C11 canal and WCA3 impoundment area are not distinct water bodies at all, but instead are two hydrologically indistinguishable parts of a single water body. The Government agrees with the District on this point, claiming that because the C11 canal and WCA3 share a unique, intimately related, hydrological association, they can appropriately be viewed, for purposes of Section 402 of the Clean Water Act, as parts of a single body of water. Brief for United States in Opposition 13. The Tribe does not dispute that if C11 and WCA3 are simply two parts of the same water body, pumping water from one into the other cannot constitute an addition of pollutants. As the Second Circuit put it in Trout Unlimited, [i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not added soup or anything else to the pot. 273 F.3d, at 492. What the Tribe disputes is the accuracy of the Districts factual premise; according to the Tribe, C11 and WCA3 are two pots of soup, not one.
The record does contain information supporting the Districts view of the facts. Although C11 and WCA3 are divided from one another by the L33 and L37 levees, that line appears to be an uncertain one. Because Everglades soil is extremely porous, water flows easily between ground and surface waters, so much so that [g]round and surface waters are essentially the same thing. App. 111, 117. C11 and WCA3, of course, share a common underlying aquifer. Tr. of Oral Arg. 42. Moreover, the L33 and L37 levees continually leak, allowing water to escape from WCA3. This means not only that any boundary between C11 and WCA3 is indistinct, but also that there is some significant mingling of the two waters; the record reveals that even without use of the S9 pump station, water travels as both seepage and groundwater flow between the water conservation area and the C11 basin. App. 172, see also id., at 37 (describing flow between C11 and WCA3 as cyclical).
The parties also disagree about how the relationship between S9 and WCA3 should be assessed. At oral argument, counsel for the Tribe focused on the differing biological or ecosystem characteristics of the respective waters, Tr. of Oral Arg. 43; see also Brief for Respondent Miccosukee Tribe of Indians of Florida 67; Brief for Respondent Friends of the Everglades 1822, while counsel for the District emphasizes the close hydrological connections between the two. See, e.g., Brief for Petitioner 47. Despite these disputes, the District Court granted summary judgment to the Tribe. It applied a test that neither party defends; it determined that C11 and WCA3 are distinct because the transfer of water or its contents from C11 into the Everglades would not occur naturally. App. to Pet. for Cert. 28a. The Court of Appeals for the Eleventh Circuit endorsed this test. 280 F.3d, at 1368.
We do not decide here whether the District Courts test is adequate for determining whether C11 and WCA3 are distinct. Instead, we hold only that the District Court applied its test prematurely. Summary judgment is appropriate only where there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The record before us leads us to believe that some factual issues remain unresolved. The District Court certainly was correct to characterize the flow through the S9 pump station as a non-natural one, propelled as it is by diesel-fired motors against the pull of gravity. And it also appears true that if S9 were shut down, the water in the C11 canal might for a brief time flow east, rather than west, as it now does. But the effects of shutting down the pump might extend beyond that. The limited record before us suggests that if S9 were shut down, the area drained by C11 would flood quite quickly. See 280 F.3d, at 1366 (Without the operation of the S9 pump station, the populated western portion of Broward County would flood within days). That flooding might mean that C11 would no longer be a distinct body of navigable water, id., at 1368, but part of a larger water body extending over WCA3 and the C11 basin. It also might call into question the Eleventh Circuits conclusion that S9 is the cause in fact of phosphorous addition to WCA3. Nothing in the record suggests that the District Court considered these issues when it granted summary judgment. Indeed, in ordering later emergency relief from its own injunction against the operation of the S9 pump station, the court admitted that it had not previously understood that shutting down S9 would literally ope[n] the flood gates. Id., at 1371.
We find that further development of the record is necessary to resolve the dispute over the validity of the distinction between C11 and WCA3. After reviewing the full record, it is possible that the District Court will conclude that C11 and WCA3 are not meaningfully distinct water bodies. If it does so, then the S9 pump station will not need an NPDES permit. In addition, the Governments broader unitary waters argument is open to the District on remand. Accordingly, the judgment of the United States Court of Appeals for the Eleventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
*. *An applicant for an individual NPDES permit
must provide informa-
tion about, among other things, the point source itself, the nature of the pollutants to be discharged, and any water treatment system that will be used. General permits greatly reduce that administrative burden by authorizing discharges from a category of point sources within a specified geographic area. Once EPA or a state agency issues such a permit, covered entities, in some cases, need take no further action to achieve compliance with the NPDES besides adhering to the permit conditions. See 40 CFR § 122.28(b)(2)(v) (2003).