Supreme Court Docket Report, October Term, 2002 - Number 17

By Miriam R. Nemetz and Robert L. Bronston

Recently the Supreme Court granted certiorari in three cases of potential interest to the business community. Absent extensions, amicus briefs in support of the petitioners are due on Monday, August 11, 2003, and amicus briefs in support of the respondents are due on Monday, September 15, 2003.

1. Clean Water Act ó Permit Requirement ó Discharge of Pollutants. Under the Clean Water Act, "any addition of any pollutant to navigable waters from any point source" is a "discharge of a pollutant" that requires a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. ß 1362(12). The Supreme Court granted certiorari in South Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, No. 02-626, to decide whether the Clean Water Act requires a state water management district to obtain an NPDES permit to pump water across a levee into the Everglades where the pumped water contains slightly more pollutants than the receiving water.

The South Florida Water Management District (SFWMD) is the state agency responsible for managing water in South Florida, including populated Broward County and the Everglades, to prevent flooding, provide drinking water, and protect the environment. SFWMD pumps water from water-collection canals in western Broward County across a levee into the Evergladesóan operation essential to prevent Broward County from flooding. The pumped water contains slightly more phosphorous than the receiving waters. The Miccosukee Tribe of Indians and the Friends of the Everglades, Inc., filed citizen suits against SFWMD, alleging that the District's pumping of polluted water across the levee was an "addition" of pollutants to the receiving water under the Clean Water Act that required a permit, even though SFWMD did not pollute the water it pumped. SFWMD argued for a narrower interpretation of the terms "addition" "from any point source" that excludes acts not affecting the pollution levels of the pumped water.

The district court granted summary judgment to the plaintiffs, holding that SFWMD's pumps required an NPDES permit. The Eleventh Circuit affirmed. Miccosukee Tribe of Indians v. South Florida Water Mgmt. Dist., 280 F.3d 1364 (2002). The court of appeals found SFWMD's pump system to be a "but for" cause of pollution in the receiving waters, and concluded that operating the pumps without an NPDES permit violated the Clean Water Act. Id. at 1369. Under the Eleventh Circuit's interpretation of the Act, any pumping of water that is a "cause-in-fact of the release of pollutants into navigable waters" requires a permit. Id. at 1368.

The Eleventh Circuit's interpretation of the Clean Water Act deepened a conflict among the courts of appeals on this issue. The D.C. and Sixth Circuits have accepted the position of the Environmental Protection Agency that an "addition" "from" a point source occurs only if the point source itself physically introduces a pollutant into the water from the outside world. Nat'l Wildlife Fed'n v. Consumer Power Co., 862 F.2d 580, 581 (6th Cir. 1988); Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 179 (D.C. Cir. 1982). The First and Second...