[ OConnor ]
[ Scalia ]
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT v. MICCOSUKEE TRIBE OF INDIANS et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Congress established the Central and South
Florida Flood Control Project (Project) to address drainage and
flood control problems in reclaimed portions of the Everglades.
Five Project elements are at issue here. The first, the
C11 canal, collects ground water and
rainwater from an area that includes urban, agricultural, and
residential development. The second Project element, pump
station S9, moves water from the canal to the
third element, an undeveloped wetland, WCA3,
which is a remnant of the original South Florida Everglades.
Petitioner, the Projects day-to-day operator (hereinafter
District), impounds the water there to keep if from flowing
into the ocean and to preserve wetlands habitat. Absent such
human intervention, the water would flow back to the canal and
flood the C11 basins populated areas. Such flow is
prevented by levees, including the L33 and
L37 levees at issue here. The combined
effect of L33, L37, C11, and S9 is
artificially to separate the C11 basin from WCA3,
which would otherwise be a single wetland. The Project has an
environmental impact on wetland ecosystems. Rain on the
western side of L33 and L37 falls into
WCA3s wetland ecosystem, but rain falling on the
eastern side absorbs contaminants, including phosphorous from
fertilizers, before entering the C11 canal. When that
water is pumped across the levees, the phosphorus alters the
WCA3 ecosystems balance, stimulating the growth of
algae and plants foreign to the Everglades. Respondents
(hereinafter Tribe) filed suit under the Clean Water Act (Act),
which prohibits the discharge of any pollutant by any
person unless done in compliance with the Act, 33 U.S. C.
§1311(a). Under the Acts National Pollutant
Discharge Elimination System (NPDES), dischargers must obtain
permits limiting the type and quantity of pollutants they can
release into the Nations waters. §1342. The Act
Held: The case is remanded for further proceedings regarding the parties factual dispute over whether C11 and WCA3 are meaningfully distinct water bodies. Pp. 614.
(a) Each of three arguments advanced by the District and the Federal Government as amicus would, if accepted, lead to the conclusion that S9 does not require an NPDES permit. P. 6.
(b) The Court rejects the Districts initial argument 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 definition of a point source as a conveyance, §1362(14), makes plain that the point source need only convey the pollutant to navigable waters. The Acts examples of point sourcespipes, ditches, tunnels, and conduitsare objects that transport, but do not generate, pollutants. And one of the Acts primary goals was to impose NPDES permitting requirements on municipal wastewater treatment plants, which treat and discharge pollutants added to water by others. Pp. 78.
(c) The Government contends that all water bodies that are navigable waters under the Act should be viewed unitarily for purposes of NPDES permitting. Because the Act requires NPDES permits only when a pollutant is added to navigable waters, the Government contends that such permits are not required when water from one navigable body is discharged, unaltered, into another navigable body. Despite the relevance of this unitary waters approach, neither the District nor the Government raised it before the Eleventh Circuit or in their briefs respecting certiorari, and this Court is unaware of any case that has examined the argument in its present form. Thus, the Court declines to resolve the argument here. However, because the judgment must be vacated in any event, the unitary waters argument will be open to the parties on remand. Pp. 812.
(d) The District and the Government believe that the C11 canal and WCA3 impoundment area are not distinct water bodies, but are two hydrologically indistinguishable parts of a single water body. The Tribe agrees that, if this is so, pumping water from one into the other cannot constitute an addition of pollutants within the meaning of the Act, but it disputes the Districts factual premise that C11 and WCA3 are one. The parties also disagree about how the relationship between S9 and WCA3 should be assessed. This Court does not decide here whether the District Courts test is adequate for determining whether C11 and WCA3 are distinct, because that court applied its test prematurely. Summary judgment is appropriate only where there is no genuine issue of material fact, but some factual issues remain unresolved here. The District Court correctly characterized the flow through S9 as nonnatural, and it appears that if S9 were shut down, the water in the C11 canal might for a brief time flow east, rather than west. But the record also suggests that if S9 were shut down, the area drained by C11 would flood, which might mean C11 would no longer be a distinct body of navigable water, but instead 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. If, after further development of the record, that court concludes that C11 and WCA3 are not meaningfully distinct water bodies, S9 will not need an NPDES permit. Pp. 1214.
280 F.3d 1364, vacated and remanded.
OConnor, J., delivered the opinion of the Court, Parts I and IIA of which were unanimous, and Parts IIB and IIC of which were joined by Rehnquist, C. J., and Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ. Scalia, J., filed an opinion concurring in part and dissenting in part.