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The U.S. Supreme Court's Decision in South Florida Water Management District v. Miccosukee Tribe of Indians: Leaving the Scope of Regulation Under the Clean Water Act in "Murky Waters"

November 2012

Citation: 34 ELR 10994

Issue: 11

Author: Lawrence R. Liebesman

In an 8-to-1 decision authored by Justice Sandra Day O'Connor, the U.S. Supreme Court reversed the U.S. Court of Appeals for the Eleventh Circuit's decision that the South Florida Water Management District's (District's) operation of a pumping station required a national pollutant discharge elimination system (NPDES) permit because pollutants transferred from a canal to a water conservation area would not have occurred but for the operation of the pump. However, as discussed below, the Court left unresolved several key issues regarding the Clean Water Act (CWA) permit program that must await future resolution by the courts.

Lawrence R. Liebesman is a partner in the Washington, D.C., office of Holland & Knight L.L.P., where he specializes in Clean Water Act and Endangered Species Act issues. He was formerly a senior trial attorney at the U.S. Department of Justice, Environment and Natural Resources Division. He filed an amicus brief in the U.S. Supreme Court in support of the South Florida Water Management District in the South Florida Water Management District v. Miccosukee Tribe of Indians case, representing the Nationwide Public Projects Coalition, West Valley Water District of California, the Metropolitan Denver Water Authority of Colorado, the Cobb County-Marietta Water Authority of Georgia, and the Wheeler Ridge-Maricopa Water Storage District of California. He was assisted in this Article by Patrick Tierney, a summer associate at Holland & Knight L.L.P. and a third-year student at George Mason University School of Law, and by Steve Kelton, an intern and third-year student at Vermont Law School.

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