OPINION OF THE COURT
SOUTH FLA. WATER MANAGEMENT DIST. V.MICCOSUKEE TRIBE
541 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 02-626
SOUTH FLORIDA WATER MANAGEMENT DISTRICT, PETITIONER
v. MICCOSUKEE TRIBE OF INDIANS et al.
on writ of certiorari to the united states court of
appeals for the eleventh circuit
[March 23, 2004]
Justice O’Connor delivered the
opinion of the Court.
Petitioner South Florida Water
Management District operates a pumping facility that transfers
water from a canal into a reservoir a short distance away.
Respondents Miccosukee Tribe of Indians and the Friends of the
Everglades brought a citizen suit under the Clean Water Act
contending that the pumping facility is required to obtain a
discharge permit under the National Pollutant Discharge Elimination
System. The District Court agreed and granted summary judgment to
respondents. A panel of the United States Court of Appeals for the
Eleventh Circuit affirmed. Both the District Court and the Eleventh
Circuit rested their holdings on the predicate determination that
the canal and reservoir are two distinct water bodies. For the
reasons explained below, we vacate and remand for further
development of the factual record as to the accuracy of that
determination.
I
A
The Central and South Florida
Flood Control Project (Project) consists of a vast array of levees,
canals, pumps, and water impoundment areas in the land between
south Florida’s coastal hills and the Everglades. Historically,
that land was itself part of the Everglades, and its surface and
groundwater flowed south in a uniform and unchanneled sheet.
Starting in the early 1900’s, however, the State began to build
canals to drain the wetlands and make them suitable for
cultivation. These canals proved to be a source of trouble; they
lowered the water table, allowing salt water to intrude upon
coastal wells, and they proved incapable of controlling flooding.
Congress established the Project in 1948 to address these problems.
It gave the United States Army Corps of Engineers the task of
constructing a comprehensive network of levees, water storage
areas, pumps, and canal improvements that would serve several
simultaneous purposes, including flood protection, water
conservation, and drainage. These improvements fundamentally
altered the hydrology of the Everglades, changing the natural sheet
flow of ground and surface water. The local sponsor and day-to-day
operator of the Project is the South Florida Water Management
District (District).
Five discrete elements of the
Project are at issue in this case. One is a canal called “C–11.”
C–11 collects groundwater and rainwater from a 104 square–mile area
in south central Broward County. App. 110. The area drained by C–11
includes urban, agricultural, and residential development, and is
home to 136,000 people. At the western terminus of C–11 is the
second Project element at issue here: a large pump station known as
“S–9.” When the water level in C–11 rises above a set level, S–9
begins operating and pumps water out of the canal. The water does
not travel far. Sixty feet away, the pump station empties the water
into a large undeveloped wetland area called “WCA–3,” the third
element of the Project we consider here. WCA–3 is the largest of
several “water conservation areas” that are remnants of the
original South Florida Everglades. The District impounds water in
these areas to conserve fresh water that might otherwise flow
directly to the ocean, and to preserve wetlands habitat.
Id., at 112.
Using pump stations like S–9, the District
maintains the water table in WCA–3 at a level significantly higher
than that in the developed lands drained by the C–11 canal to the
east. Absent human intervention, that water would simply flow back
east, where it would rejoin the waters of the canal and flood the
populated areas of the C–11 basin. That return flow is prevented,
or, more accurately, slowed, by levees that hold back the surface
waters of WCA–3. Two of those levees, L–33 and L–37, are the final
two elements of the Project at issue here. The combined effect of
L–33 and L–37, C–11, and S–9 is artificially to separate the C–11
basin from WCA–3; left to nature, the two areas would be a single
wetland covered in an undifferentiated body of surface and ground
water flowing slowly southward.
B
As the above description
illustrates, the Project has wrought large-scale hydrologic and
environmental change in South Florida, some deliberate and some
accidental. Its most obvious environmental impact has been the
conversion of what were once wetlands into areas suitable for human
use. But the Project also has affected those areas that remain
wetland ecosystems.
Rain on the western side of the
L–33 and L–37 levees falls into the wetland ecosystem of WCA–3.
Rain on the eastern side of the levees, on the other hand, falls on
agricultural, urban, and residential land. Before it enters the
C–11 canal, whether directly as surface runoff or indirectly as
groundwater, that rainwater absorbs contaminants produced by human
activities. The water in C–11 therefore differs chemically from
that in WCA–3. Of particular interest here, C–11 water contains
elevated levels of phosphorous, which is found in fertilizers used
by farmers in the C–11 basin. When water from C–11 is pumped across
the levees, the phosphorous it contains alters the balance of
WCA–3’s ecosystem (which is naturally low in phosphorous) and
stimulates the growth of algae and plants foreign to the Everglades
ecosystem.
The phosphorous-related impacts of the Project
are well known and have received a great deal of attention from
state and federal authorities for more than 20 years. A number of
initiatives are currently under way to reduce these impacts and
thereby restore the ecological integrity of the Everglades.
Respondents Miccosukee Tribe of Indians and the Friends of the
Everglades (hereinafter simply Tribe), impatient with the pace of
this progress, brought this Clean Water Act suit in the United
States District Court for the Southern District of Florida. They
sought, among other things, to enjoin the operation of S–9 and, in
turn, the conveyance of water from C–11 into WCA–3.
C
Congress enacted the Clean Water
Act (Act) in 1972. Its stated objective was “to restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters.” 86 Stat. 816, 33 U. S. C. §1251. To serve
those ends, the Act prohibits “the discharge of any pollutant by
any person” unless done in compliance with some provision of the
Act. §1311(a). The provision relevant to this case, §1342,
establishes the National Pollutant Discharge Elimination System, or
“NPDES.” Generally speaking, the NPDES requires dischargers to
obtain permits that place limits on the type and quantity of
pollutants that can be released into the Nation’s waters. The Act
defines the phrase “ ‘discharge of a pollutant’ ” to mean
“any addition of any pollutant to navigable waters from any point
source.” §1362(12). A “ ‘point source,’ ” in turn, is
defined as “any discernible, confined and discrete conveyance,”
such as a pipe, ditch, channel, or tunnel, “from which pollutants
are or may be discharged.” §1362(14).
According to the Tribe, the
District cannot operate S–9 without an NPDES permit because the
pump station moves phosphorous-laden water from C–11 into WCA–3.
The District does not dispute that phosphorous is a pollutant, or
that C–11 and WCA–3 are “navigable waters” within the meaning of
the Act. The question, it contends, is whether the operation of the
S–9 pump constitutes the “discharge of [a] pollutant” within the
meaning of the Act.
The parties filed cross-motions for summary
judgment on the issue of whether S–9 requires an NPDES permit. The
District Court granted the Tribe’s motion, reasoning as
follows:
“In this case an addition of pollutants exists
because undisputedly water containing pollutants is being
discharged through S–9 from C–11 waters into the Everglades, both
of which are separate bodies of United States water with . . .
different quality levels. They are two separate bodies of water
because the transfer of water or its contents from C–11 into the
Everglades would not occur naturally.” App. to Pet. for Cert.
28a–29a.
The Court of Appeals affirmed. It
reasoned first that “in determining whether pollutants are added to
navigable waters for purposes of the [Act], the receiving body of
water is the relevant body of navigable water.” 280 F. 3d
1364, 1368 (CA11 2002). After concluding that pollutants were
indeed being added to WCA–3, the court then asked whether that
addition of pollutants was from a “point source,” so as to trigger
the NPDES permitting requirement. To answer that question, it
explained:
“[F]or an addition of pollutants to be from a point
source, the relevant inquiry is whether—but for the point
source—the pollutants would have been added to the receiving body
of water. We, therefore, conclude that an addition from a point
source occurs if a point source is the cause in fact of the release
of pollutants into navigable waters.
“When a point source changes the natural flow
of a body of water which contains pollutants and causes that water
to flow into another distinct body of navigable water into which it
would not have otherwise flowed, that point source is the
cause-in-fact of the discharge of pollutants.”
Ibid.
(footnote omitted).
Because it believed that the water in the C–11
canal would not flow into WCA–3 without the operation of the S–9
pump station, the Court of Appeals concluded that S–9 was the
cause-in-fact of the addition of pollutants to WCA–3. It
accordingly affirmed the District Court’s grant of summary
judgment, and held that the S–9 pump station requires an NPDES
permit. We granted certiorari.
539 U. S. 957
(2003).
II
The District and the Federal
Government, as
amicus, advance three separate arguments,
any of which would, if accepted, lead to the conclusion that the
S–9 pump station does not require a point source discharge permit
under the NPDES program. Two of these arguments involve the
application of disputed contentions of law to agreed-upon facts,
while the third involves the application of agreed-upon law to
disputed facts. For reasons explained below, we decline at this
time to resolve all of the parties’ legal disagreements, and
instead remand for further proceedings regarding their factual
dispute.
A
In its opening brief on the
merits, the District argued that the NPDES program applies to a
point source “only when a pollutant originates from the point
source,” and not when pollutants originating elsewhere merely pass
through the point source. Brief for Petitioner 20. This argument
mirrors the question presented in the District’s petition for
certiorari: “Whether the pumping of water by a state water
management agency that adds nothing to the water being pumped
constitutes an ‘addition’ of a pollutant ‘from’ a point source
triggering the need for a National Pollutant Discharge Elimination
System permit under the Clean Water Act.” Pet. for Cert. i.
Although the Government rejects the District’s legal position,
Brief for United States as
Amicus Curiae 21, it and the
Tribe agree with the factual proposition that S–9 does not itself
add any pollutants to the water it conveys into WCA–3.
This initial argument is
untenable, and even the District appears to have abandoned it in
its reply brief. Reply Brief for Petitioner 2. A point source is,
by definition, a “discernible, confined, and discrete
conveyance.” §1362(14) (emphasis added). That definition
makes plain that a point source need not be the original source of
the pollutant; it need only convey the pollutant to “navigable
waters,” which are, in turn, defined as “the waters of the United
States.” §1362(7). Tellingly, the examples of “point sources”
listed by the Act include pipes, ditches, tunnels, and conduits,
objects that do not themselves generate pollutants but merely
transport them. §1362(14). In addition, one of the Act’s primary
goals was to impose NPDES permitting requirements on municipal
wastewater treatment plants. See,
e.g., §1311(b)(1)(B)
(establishing a compliance schedule for publicly owned treatment
works). But under the District’s interpretation of the Act, the
NPDES program would not cover such plants, because they treat and
discharge pollutants added to water by others. We therefore reject
the District’s proposed reading of the definition of
“ ‘discharge of a pollutant’ ” contained in §1362(12).
That definition includes within its reach point sources that do not
themselves generate pollutants.
B
Having answered the precise
question on which we granted certiorari, we turn to a second
argument, advanced primarily by the Government as
amicus
curiae in merits briefing and at oral argument. For purposes
of determining whether there has been “any addition of any
pollutant to navigable waters from any point source,”
ibid., the Government contends that all the water bodies
that fall within the Act’s definition of “ ‘navigable
waters’ ” (that is, all “the waters of the United States,
including the territorial seas,” §1362(7)) should be viewed
unitarily for purposes of NPDES permitting requirements. Because
the Act requires NPDES permits only when there is an addition of a
pollutant “to navigable waters,” the Government’s approach would
lead to the conclusion that such permits are
not required
when water from one navigable water body is discharged, unaltered,
into another navigable water body. That would be true even if one
water body were polluted and the other pristine, and the two would
not otherwise mix. See
Catskill Mountains Chapter of Trout
Unlimited, Inc. v.
New York, 273 F.3d 481, 492 (CA2
2001);
Dubois v.
United States Dept. of
Agriculture, 102 F. 3d 1273 (CA1 1996). Under this
“unitary waters” approach, the S–9 pump station would not need an
NPDES permit.
1
The “unitary waters” argument
focuses on the Act’s definition of a pollutant discharge as “any
addition of any pollutant to navigable waters from any point
source.” §1362(12). The Government contends that the absence of the
word “any” prior to the phrase “navigable waters” in §1362(12)
signals Congress’ understanding that NPDES permits would not be
required for pollution caused by the engineered transfer of one
“navigable water” into another. It argues that Congress intended
that such pollution instead would be addressed through local
nonpoint source pollution programs. Section 1314(f)(2(F), which
concerns nonpoint sources, directs the Environmental Protection
Agency (EPA) to give States information on the evaluation and
control of “pollution resulting from . . . changes in the movement,
flow, or circulation of any navigable waters or ground waters,
including changes caused by the construction of dams, levees,
channels, causeways, or flow diversion facilities.”
We note, however, that §1314(f)(2)(F) does not
explicitly exempt nonpoint pollution sources from the NPDES program
if they
also fall within the “point source” definition.
And several NPDES provisions might be read to suggest a view
contrary to the unitary waters approach. For example, under the
Act, a State may set individualized ambient water quality standards
by taking into consideration “the designated uses of the navigable
waters involved.” 33 U. S. C. §1313(c)(2)(A). Those water
quality standards, in turn, directly affect local NPDES permits; if
standard permit conditions fail to achieve the water quality goals
for a given water body, the State must determine the total
pollutant load that the water body can sustain and then allocate
that load among the permit-holders who discharge to the water body.
§1313(d). This approach suggests that the Act protects individual
water bodies as well as the “waters of the United States” as a
whole.
The Government also suggests that we adopt the
“unitary waters” approach out of deference to a longstanding EPA
view that the process of “transporting, impounding, and releasing
navigable waters” cannot constitute an “ ‘addition’ ” of
pollutants to “ ‘the waters of the United States.’ ”
Brief for United States as
Amicus Curiae 16. But the
Government does not identify any administrative documents in which
EPA has espoused that position. Indeed, an
amicus brief
filed by several former EPA officials argues that the agency once
reached the opposite conclusion. See Brief for Former Administrator
Carol M. Browner et al. as
Amici Curiae 17 (citing
In re Riverside Irrigation Dist., 1975 WL 23864 (Off.
Gen. Couns., June 27, 1975) (irrigation ditches that discharge to
navigable waters require NPDES permits even if they themselves
qualify as navigable waters)). The “unitary waters” approach could
also conflict with current NPDES regulations. For example, 40 CFR
§122.45(g)(4) (2003) allows an industrial water user to obtain
“intake credit” for pollutants present in water that it withdraws
from navigable waters. When the permit holder discharges the water
after use, it does not have to remove pollutants that were in the
water before it was withdrawn. There is a caveat, however: EPA
extends such credit “only if the discharger demonstrates that the
intake water is drawn from the same body of water into which the
discharge is made.” The NPDES program thus appears to address the
movement of pollutants among water bodies, at least at times.
Finally, the Government and numerous
amici warn that affirming the Court of Appeals in this
case would have significant practical consequences. If we read the
Clean Water Act to require an NPDES permit for every engineered
diversion of one navigable water into another, thousands of new
permits might have to be issued, particularly by western States,
whose water supply networks often rely on engineered transfers
among various natural water bodies. See Brief for Colorado
et al. as
Amici Curiae 2–4. Many of those diversions
might also require expensive treatment to meet water quality
criteria. It may be that construing the NPDES program to cover such
transfers would therefore raise the costs of water distribution
prohibitively, and violate Congress’ specific instruction that “the
authority of each State to allocate quantities of water within its
jurisdiction shall not be superseded, abrogated or otherwise
impaired” by the Act. §1251(g). On the other hand, it may be that
such permitting authority is necessary to protect water quality,
and that the States or EPA could control regulatory costs by
issuing general permits to point sources associated with water
distribution programs. See 40 CFR §§122.28, 123.25 (2003).* Indeed,
that is the position of the one State that
has interpreted
the Act to cover interbasin water transfers. See Brief for
Pennsylvania Department of Environmental Protection as
Amicus
Curiae 11–18.
2
Because WCA–3 and C–11 are both
“navigable wa- ters,” adopting the “unitary waters” approach would
lead to the conclusion that the District may operate S–9 without an
NPDES permit. But despite its relevance here, neither the District
nor the Government raised the unitary waters approach before the
Court of Appeals or in their briefs respecting the petition for
certiorari. (The District adopted the position as its own in its
reply brief on the merits.) Indeed, we are not aware of any
reported case that examines the unitary waters argument in
precisely the form that the Government now presents it. As a
result, we decline to resolve it here. Because we find it necessary
to vacate the judgment of the Court of Appeals with respect to a
third argument presented by the District, the unitary waters
argument will be open to the parties on remand.
C
In the courts below, as here, the
District contended that the C–11 canal and WCA–3 impoundment area
are not distinct water bodies at all, but instead are two
hydrologically indistinguishable parts of a single water body. The
Government agrees with the District on this point, claiming that
because the C–11 canal and WCA–3 “share a unique, intimately
related, hydrological association,” they “can appropriately be
viewed, for purposes of Section 402 of the Clean Water Act, as
parts of a single body of water.” Brief for United States in
Opposition 13. The Tribe does not dispute that if C–11 and WCA–3
are simply two parts of the same water body, pumping water from one
into the other cannot constitute an “addition” of pollutants. As
the Second Circuit put it in
Trout Unlimited, “[i]f one
takes a ladle of soup from a pot, lifts it above the pot, and pours
it back into the pot, one has not ‘added’ soup or anything else to
the pot.” 273 F. 3d, at 492. What the Tribe disputes is the
accuracy of the District’s factual premise; according to the Tribe,
C–11 and WCA–3 are two pots of soup, not one.
The record does contain
information supporting the District’s view of the facts. Although
C–11 and WCA–3 are divided from one another by the L–33 and L–37
levees, that line appears to be an uncertain one. Because
Everglades soil is extremely porous, water flows easily between
ground and surface waters, so much so that “[g]round and surface
waters are essentially the same thing.” App. 111, 117. C–11 and
WCA–3, of course, share a common underlying aquifer. Tr. of Oral
Arg. 42. Moreover, the L–33 and L–37 levees continually leak,
allowing water to escape from WCA–3. This means not only that any
boundary between C–11 and WCA–3 is indistinct, but also that there
is some significant mingling of the two waters; the record reveals
that even without use of the S–9 pump station, water travels as
both seepage and groundwater flow between the water conservation
area and the C–11 basin. App. 172, see also
id., at 37
(describing flow between C–11 and WCA–3 as “cyclical”).
The parties also disagree about how the
relationship between S–9 and WCA–3 should be assessed. At oral
argument, counsel for the Tribe focused on the differing
“biological or ecosystem characteristics” of the respective waters,
Tr. of Oral Arg. 43; see also Brief for Respondent Miccosukee Tribe
of Indians of Florida 6–7; Brief for Respondent Friends of the
Everglades 18–22, while counsel for the District emphasizes the
close hydrological connections between the two. See,
e.g.,
Brief for Petitioner 47. Despite these disputes, the District Court
granted summary judgment to the Tribe. It applied a test that
neither party defends; it determined that C–11 and WCA–3 are
distinct “because the transfer of water or its contents from C–11
into the Everglades would not occur naturally.” App. to Pet. for
Cert. 28a. The Court of Appeals for the Eleventh Circuit endorsed
this test. 280 F. 3d, at 1368.
We do not decide here whether the District
Court’s test is adequate for determining whether C–11 and WCA–3 are
distinct. Instead, we hold only that the District Court applied its
test prematurely. Summary judgment is appropriate only where there
is no genuine issue of material fact. See
Celotex Corp. v.
Catrett, 477 U. S. 317 (1986).
The record before us leads us to believe that some factual issues
remain unresolved. The District Court certainly was correct to
characterize the flow through the S–9 pump station as a non-natural
one, propelled as it is by diesel-fired motors against the pull of
gravity. And it also appears true that if S–9 were shut down, the
water in the C–11 canal might for a brief time flow
east,
rather than west, as it now does. But the effects of shutting down
the pump might extend beyond that. The limited record before us
suggests that if S–9 were shut down, the area drained by C–11 would
flood quite quickly. See 280 F. 3d, at 1366 (“Without the
operation of the S–9 pump station, the populated western portion of
Broward County would flood within days”). That flooding might mean
that C–11 would no longer be a “distinct body of navigable water,”
id., at 1368, but part of a larger water body extending
over WCA–3 and the C–11 basin. It also might call into question the
Eleventh Circuit’s conclusion that S–9 is the cause in fact of
phosphorous addition to WCA–3. Nothing in the record suggests that
the District Court considered these issues when it granted summary
judgment. Indeed, in ordering later emergency relief from its own
injunction against the operation of the S–9 pump station, the court
admitted that it had not previously understood that shutting down
S–9 would “literally ope[n] the flood gates.”
Id., at
1371.
We find that further development of the record
is necessary to resolve the dispute over the validity of the
distinction between C–11 and WCA–3. After reviewing the full
record, it is possible that the District Court will conclude that
C–11 and WCA–3 are not meaningfully distinct water bodies. If it
does so, then the S–9 pump station will not need an NPDES permit.
In addition, the Government’s broader “unitary waters” argument is
open to the District on remand. Accordingly, the judgment of the
United States Court of Appeals for the Eleventh Circuit is vacated,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
*An applicant for an individual NPDES permit must
provide informa- tion about, among other things, the point source
itself, the nature of the pollutants to be discharged, and any
water treatment system that will be used. General permits greatly
reduce that administrative burden by authorizing discharges from a
category of point sources within a specified geographic area. Once
EPA or a state agency issues such a permit, covered entities, in
some cases, need take no further action to achieve compliance with
the NPDES besides adhering to the permit conditions. See 40 CFR
§122.28(b)(2)(v) (2003).
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