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South Florida Water Management District v. Miccosukee Tribe of Indians

ELR Citation: 34 ELR 20021
Nos. 02-626, (U.S., 03/23/2004)

The U.S. Supreme Court holds that the national pollutant discharge elimination system (NPDES) permit program applies not only to point sources that generate pollutants, but also to point sources that transfer pollutants originating elsewhere. The definition of a point source as a "conveyance" in Clean Water Act §112(14) makes plain that the point source need only convey the pollutant to navigable waters. Nevertheless, the Court was unable to determine whether a water district's removal of phosphorus-laden water from a canal into undeveloped wetlands in the Florida Everglades requires an NPDES permit. A district court granted a Native American tribe and an environmental group summary judgment on their claim that the pumping station requires an NPDES permit, and the appellate court affirmed. Both courts rested their holdings on the predicate determination that the canal and wetlands are two distinct water bodies. However, further development of the record is necessary to resolve the dispute over the validity of the distinction between the canal and the wetlands. The case, therefore, was vacated and remanded. After reviewing the full record on remand, it is possible that the district court will conclude that they are not meaningfully distinct water bodies. If it does so, then the pump station will not need an NPDES permit because pumping water from one body of water into the other cannot constitute an "addition" of pollutants within the meaning of the Act. O'Connor, J., delivered the opinion of the Court, Parts I and II.A of which were unanimous, and Parts II.B and II.C 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.