Background

Miccosukee v. South Florida Water Management District - Possible National Implications

Miccosukee v. South Florida Water Management District - Possible National Implications

The US Supreme Court will hear opening arguments today in a case that will explore the core protections of the Clean Water Act. At issue is South Florida Water Management District's practice of pumping huge quantities of polluted stormwater uphill from a collection canal in a developed area into a natural wetland area in the Everglades. There is no dispute that this practice is harmful to the Everglades and its ecology.

Nonetheless, the District refused to apply for a Clean Water Act permit, arguing that it is not the source of the pollution and is merely conveying already-polluted water. However, the Act requires a permit for any discharge of pollutants from a point source. The pumps at issue here undisputedly are point sources, and the pumped water contains pollutants. Thus, it is not surprising that two lower courts (the U.S. District Court for the Southern District of Florida and the U.S. Court of Appeals for the Eleventh Circuit) rejected the District's arguments and held that the District's pumping requires a Clean Water Act discharge permit.

The District -- supported by the U.S. Government -- is now trying to overturn those lower court rulings in the U.S. Supreme Court. A ruling in favor of the District would threaten continued pollution of the Everglades -- a matter of significant concern given recent Florida legislation that substantially postponed deadlines for pollution cleanup. In addition, such a ruling could allow pollution of numerous waters around the Nation, without Clean Water Act permit safeguards. The positions taken by the District and the U.S. Government in this case are described by the Commonwealth of Pennsylvania (which filed a brief in the case) as "extreme and objectionable." See Pennsylvania Brief at 10.

• A ruling in favor of the South Florida Water Management District could allow transfer of polluted waters across the country into pristine waterbodies without Clean Water Act permitting safeguards. This could include pumping contaminated water into designated drinking water sources.

• Without Clean Water Act permitting for transfers of polluted waters, our nation's water quality could be seriously impaired. Such an approach would open the door to "the transfer of salt water into fresh water basins; the conveyance of water infested with invasive species (e.g., zebra mussels) into a body of water that is not; the pumping of warm, sediment-laden lake water into a higher-altitude, high quality trout stream with cold and clear water; and the man-induced drainage of collected waters containing high levels of polluted runoff, including phosphorus, into separate and sensitive watersheds." See Pennsylvania Brief at 2-3.

• Clean Water Act permitting includes safeguards and accountability to limit the discharge of pollutants, thereby protecting receiving waters. Crucially, such discharge must comply with the water quality standards and pollutant caps established by the state under the Clean Water Act. Adoption of the positions of the District and the United States would undermine those safeguards.

• A brief filed by New York and twelve other states indicates that states have expended much effort implementing the Clean Water Act in a manner tailored to the specific needs and circumstances of individual waterbodies -- including water quality standards, total maximum daily loads, and permits. An approach that allowed pollutants from one waterbody to be diverted to another waterbody without a Clean Water Act permit would treat these various different and unique waterbodies as if they were equivalent and interchangeable. "To abrogate the permit requirement and adopt the United States' dubious theory would be manifestly inconsistent with the Act, and deprive States of effective tools to monitor, maintain, and achieve water quality consistent with the designated use and water quality criteria applicable to each individual water body within their borders." See New York Brief at 12.

• Clean Water Act permitting has been the primary source of progress towards achieving water quality standards. If such permits were no longer required, water diversion facilities, including ski snowmaking systems, industrial cooling systems and water supply systems could discharge polluted water into cleaner waters without Clean Water Act safeguards. See Trout Unlimited brief.

• The Tongue & Yellowstone River Irrigation District brief indicates that, when oil and gas producers develop coalbed methane reserves, massive quantities of salty water are removed from deep underground. If permits are not required, such water could be discharged directly into surrounding freshwater bodies without key water quality safeguards. Because ranchers and farmers rely on clean water and the protections afforded to them by the Clean Water Act, absence of these safeguards would result in long-term effects on their water use.

• The District and its allies complain of alleged costs and logistical problems associated with the Clean Water Act permitting process. However, a wide variety of permitted facilities have operated effectively under that process for decades. Indeed, as documented in the Commonwealth of Pennsylvania's brief, the Commonwealth already includes water diversions in its Clean Water Act permitting program -- thus refuting arguments that it is impractical to do so.

Link to the aforementioned briefs

Eleventh Circuit's decision