35 Trends 1 (2003-2004)

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Supreme Court
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BY CHANNING 1. MARTIN


T he U.S. Supreme Court will decide important
      Clean Water Act and Clean Air Act cases
      during its 2003 term, as well as a case con-
cerning the Low-Level Radioactive Waste Policy
Act. This article discusses these cases and a Clean
Water Act case in which the court recently denied
certiorari. It also highlights cases working their way
through the federal courts tLat appear to be prime
candidates for Supreme Court review.

Clean Water Act
   NPDES permits. When does the point source
discharge of unalered water require a NPDES per-
mit? That question will be answered by the
Supreme Co-t in South Florida Water
Managemen District v. Miccosukee Tribe, 280 F.3d
1364 (1th Cir. 2002) cert. granted, 71 U.S.L.W
3793 (June 27, 2003) (No. 02-626). In that case,
South Florida Water Management District
(SFWMD) operates a series of flood control canals.
levees and water impoundment areas. When heavy
rainfall occurs, water from one of the canals is
pumped t-hrough a pumping station to a watzr con-
servation area to prevent flooding in Broward
County.. The water in the canal contains hgher lev-
els of phosphorus than the levels of phosphorus in
the water conservation area. Plaintiffs argue that the
pumping station is required to have a NPDES per-
mit because it is a point source that adds pollutants
to navigable waers.
   At ta, SFWMD Cd not dispute that the pump
station :is a point source, that the water released by
the station contains pollutants or that both the canal
and the water conservation area are navigable
waters. Instead, the case centered on one issue:
whether the pumping of already polluted water con-
stitutes the addition of pollutants to navigable
watersfrom a point source.
   SFWMD argnued that the point source at issue
adds no pollutants whatsoever to the water it con-
veys and that the activity of moving surface waters
within a water management district does not require
a NPDES permit. The US. District Court for the
Southern Distct of Florida disagreed and required
a permit
   The Eleventh Circuit affirmed. It held the rele-
vant inquiry is whether - but for the point source -
the pollutants would have been added to the receiv-
ing body of water. It found that [w]hen 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 water into which
it would not have otherwise flowed, that point

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source is the cause-in-fact of the discharge of pollu-
tants' 280 E3d at 1368.
   Numerous amici are supporting SFWMD in this
case, including the National League of Cities and
the American Farm Bureau. The case is particularly
interesting since both the EPA and the Florida DEP
took the position that the discharge did not require a
NPDES permit.
   Although South Florida Water Management
District may decide the issues, a petition for certio-
rari will be filed soon in a similar case recently
decided by the Ninth Circuit. In Northern Plains
Resource Council v. Fidelity Exploration and
Development Co., 325 F3d 1155 (9th Cir. 2003),
Fidelity Exploration and Development Co.
(Fidelity) extracted methane gas from the subsur-
face and disch-arged groundwater to the Tongue
River in Montana as part of that process. The
groundwater was not altered in any way before it
was discharged.
   Fidelity asked the Montana Department of
Environmental Quality (MDEQ) whether a permit
was required for the discharge. MDEQ advised the
company that no permit was necessary because
under Montana law; a discharge to surface water of
ground water that is not altered from its ambient
quality does not require a permit. Fidelity thereafter
began discharging the groundwater without a
NPDES permit.
   The Northern Plains Resource Council filed suit
against Fidelity alleging that a permit was required.
The district court ruled in favor of Fidelit after
concluding that unadulterated groundwater was not
a -pollutant under the Clean Water Act and that. in
any event, state law provided an exemption for the
discharge in question.
   The Ninth Circuit reversed. It held the ground-
water qualified as an industrial waste because it
was an unwanted byproduct of Fidelity's process.
The court noted the untreated water was salty and
contained a number of chemicals designated by the
EPA as pollutants - such as arsenic and lead - even
though these chemicals in the groundwater were
naturally occurring. The court said it did not matter
that Fidelity added nothing to the water because the
Clean Water Act's definition ofpollution as a
man-induced alteration of water refers to the effect
of the discharge on the receiving water; it does not
require that the discharged water be altered by
man. 325 F.3d at 11 62.
   Total maximum daily load (TMDL). The
Supreme Court recently denied a petition for certio-
rari in Pronsolino v. Nastri, 291 F. 3d 1123 (9th Cir.
2002) cert. denied, 71 U.S.L.W. 3772 (June 16.
2003) (No. 02-1186). There the court let stand a
decision by the Ninth Circuit upholding the EPA's
                           (Continued on page 14)


September/October 2003
Iolume 35, Number I


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