36 Trends 1 (2004-2005)

handle is hein.journals/trends36 and id is 1 raw text is: 








Supreme Court



he U.S. Supreme Court decided a number
      important environmental cases during its
      2003 term. This article discusses these cases
and one the court declined to review.
NPDES permits
   When does the point source discharge of unal-
tered water require a National Pollutant Discharge
Elimination System (NPDES) permit? That question
was presented to the Supreme Court in South Florida
Water Management District v. Miccosukee Tribe, 124
S.Ct. 1537 (2004), but was not answered. Instead, the
Court vacated the judgment and remanded the case
for further development of the record.
   The facts presented to the Court showed that the
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 through a pumping station to a water con-
servation area to prevent flooding in Broward
County. The water in the canal contains higher levels
of phosphorus than in the water conservation area.
Plaintiffs argued the pumping station is required to
have a NPDES permit because it is a point source
that adds pollutants to navigable waters.
   SFWMD did 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, it argued that the point source at issue adds
no pollutants whatsoever to the water it conveys and
that the pumping of already polluted water does not
constitute the addition of pollutants to navigable
watersfrom a point source.
   The Eleventh Circuit disagreed and required a
permit. It held 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 source is the cause-in-
fact of the discharge of pollutants. Miccosukee
Tribe v. South Florida Water Management District,
280 E3d 1364, 1368 (11th Cir. 2002).
   In vacating the Eleventh Circuit's decision, the
Court said it was unable to accept the court of
appeal's predicate determination that the canal and
the water conservation area are distinct water bod-
ies. SFWMD, joined by the United States as ami-
cus, argued that the canal and water conservation
area are hydrogeologically connected by groundwa-
ter and leaks in the levees and thus are indistin-
guishable parts of the same water body. The Court
found the test employed by the lower courts to

determine that the water bodies are distinct was
applied without full development of the facts.
   The Court also considered the argument made
by SFWMD and the United States that all navigable
waters should be viewed unitarily for purposes of
NPDES permitting requirements, meaning that no
NPDES permit is required when unaltered water from
one navigable water body is discharged into another.
The Court declined to rule on this argument on the
ground that it had not been raised below. It left the
argument for the district court to decide on remand-
   Although the Supreme Court did not rule on the
question presented, it did provide guidance. It said
if the district court concluded that the canal and
water conservation area are not meaningfully dis-
tinct water bodies, then the pump station does not
need a NPDES permit. The case is particularly
interesting because both EPA and the Florida
Department of Envionmental Protection take the
position that the discharge does not require a
NPDES permit.
   A similar issue was presented to the court in a
petition for appeal filed in Northern Plains Resource
Council v. Fidelity Exploration and Development
Co., 124 S.Ct. 434 (2003). At issue was whether the
discharge to surface water of unaltered groundwater
containing naturally occurring chemicals required a
permit. The district court held that no permit was
required, but the Ninth Circuit reversed.
   The Supreme Court denied Fidelity's petition for
a writ of certiorari on Oct. 20, 2003. Thus, the
issues presented in the above cases must wait for
resolution. See Hughes Tool Co. v. Trans World
Airlines, 409 U.S. 363, 365 n.1 (1973) (Denial of
certiorari imparts no implication or inference con-
cerning the court's view of the merits).
State permitting authority under CAA
   In Alaska : EPA, 124 S.Ct. 983 (2004), the Court
upheld EPA's authority to second-guess a Clean Air
Act (CAA) PSD permit decision by the Alaska
Department of Environmental Conservation
(ADEC). In that case, ADEC made a Best Available
Control Technology (BACT) determination that EPA
believed did not comply with the CAA or Alaska's
State Implementation Plan. EPA thereafter issued
administrative orders that effectively invalidated the
permit. The Ninth Circuit upheld EPA's authority to
issue the orders and said EPA did not act arbitrarily
or capriciously in doing so. The Supreme Court nar-
rowly agreed in a 5-4 decision.
   The Court acknowledged that state permitting
authorities have wide latitude to make BACT deter-
minations, but said Congress intended EPA to have
an expansive surveillance role over those determi-
nations. The Court held that if EPA believed a
state's determination was unreasonable, then the
                           (Continued on page 14)
                           0Printed on recycled paper

September/October 2004
Volume 36, Number 1

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