32 ELR 20475 -- Miccosukee Tribe of Indians of Florida v. South Florida Water Management District

Miccosukee Tribe of Indians of Florida v. South Florida Water Management District

No. 00-15703 (280 F.3d 1364) (UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT February 1, 2002)

ELR Digest

The court affirms a district court decision that a water district's operation of a pump station without a national pollution discharge elimination system (NPDES) permit violates the Clean Water Act (CWA) but vacates the court's injunction prohibiting the district from operating the station. The court first holds that the release of water caused by the pump station's operation constitutes an addition of pollutants from a point source, and the water district must obtain an NPDES permit. The pump station is adding pollutants to U.S. waters. The water that a drainage canal collects and that the pump station conveys into a water conservation area contains pollutants. The release of water caused by the pump station's operation constitutes an addition of pollutants from a point source. Without the operation of the pump station, the polluted waters from the drainage canal would not normally flow into the water conservation area. The pump station, therefore, is the cause-in-fact of the addition of pollutants to the water conservation area. Nevertheless, the court holds that the district court should not have issued an injunction prohibiting the water district from operating the pump station. Severe flooding would occur if the injunction was enforced. Therefore, instead of issuing an injunction that cannot be rightly enforced, the district court should order the water district to obtain an NPDES permit within some reasonable period. If the water district fails to comply with this order, the order may be enforced through the various enforcement mechanisms available under the CWA, such as fines and criminal penalties.

[A related decision to this litigation is published at 27 ELR 20705.]

The full text of this decision is available from ELR (8 pp., ELR Order No. L-443).

Counsel for Plaintiffs
Sonia E. O'Donnell
Lehtinen, O'Donnell, Vargas & Reiner
7700 N. Kendall Dr., Miami FL 33156
(305) 279-1166

Counsel for Defendant
Philip M. Burlington
Caruso, Burlington, Bohn & Compiani
1615 Forum Pl., Ste. 3-A, W. Palm Beach FL 33401
(561) 686-8010

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]