Miccosukee: the Potential for Clean Water Act Discharge Permits for Water Transfers

• Publication year: 2004
• Pages: 119

33 Colo.Law. 11 Colorado Lawyer 2004.

2004, August, Pg. 119. Miccosukee: The Potential for Clean Water Act Discharge Permits for Water Transfers

Vol. 33, No. 8, Pg. 11

The Colorado Lawyer
August 2004
Vol. 33, No. 8 [Page 119]

Specialty Law Columns
Natural Resource and Environmental Notes
Miccosukee: The Potential for Clean Water Act Discharge Permits for Water Transfers
by Peter D. Nichols

This column is sponsored by the CBA Environmental Law, Water Law, and Mineral Law Sections. The Sections publish articles of interest on local and international topics

Column Editors

Maki Iatridis (Environmental), Boulder, Berg Hill Greenleaf & Ruscitti LLP - (303) 402-1600, api@bhgrlaw.com; Kevin Kinnear (Water), Boulder, Porzak Browning & Bushong LLP - (303) 443-6800, kkinnear@pbblaw.com; Gus Michaels (Mineral) Boulder - (303) 938-6854, grmichaels.iii@
justice.com

Peter D. Nichols
About The Author:

This month's article was written by Peter D. Nichols, Denver, an attorney with Trout, Witwer & Freeman P.C. - (303) 339-5825; pnichols@troutlaw.com. The author, Robert V. Trout, and Peggy E. Montaño of Trout, Witwer & Freeman, represented several amici, assisted the Colorado and New Mexico Attorneys General in the U.S. Supreme Court proceedings in Miccosukee, and are assisting the Colorado and New Mexico Attorneys General in the Second Circuit appeal in Catskill Mountains Chapter of Trout Unlimited v. New York City.

The federal Clean Water Act ("CWA") prohibits the discharge of pollutants from a point source without a permit. Western states, including Colorado, and water users, have long believed that the diversion and conveyance of water for beneficial use was not a point source and, thus, did not require a permit under the CWA. This belief was indirectly supported by two federal Court of Appeals decisions in the 1980s.1

Nevertheless, this view has become increasingly uncertain following a series of recent decisions by courts of appeals located in the east, and now from a U.S. Supreme Court decision in South Florida Water Management District v. Miccosukee Tribe of Indians.2 In Miccosukee, the Court held that the simple conveyance of a pollutant into "waters of the United States" meets the statutory definition of a point source.3 Thus, any transfer of water from one drainage to another is potentially a point source - from transmountain diversions4 to the transfer of water between the small adjacent tributaries immortalized in Coffin v. Left Hand Ditch Co.5

The Miccosukee Court did not hold that such transfers require a discharge permit; that issue is destined to return to the Court, perhaps after a pending appeal in City of New York v. Catskill Mountains Chapter of Trout Unlimited (hereafter, "Catskill Mountains").6 Because the permitting question is unsettled and has far-reaching implications for Colorado, it is important to understand how the law has developed to this point. This article discusses current litigation concerning whether water transfers, such as transbasin diversions, are subject to National Pollutant Discharge Elimination System permitting requirements that could supersede, abrogate, or impair water rights.

Clean Water Act Overview

The lofty goal of the federal CWA is to eliminate water pollutant discharges altogether.7 The primary mechanism adopted by the CWA is to regulate the discharge of pollutants into navigable waters.8 Thus, the CWA mandates that "the discharge of any pollutant by any person shall be unlawful,"9 except in compliance with other provisions of the statute. One such provision establishes the National Pollutant Discharge Elimination System ("NPDES").10 CWA § 402, in turn, provides for the issuance of a discharge permit to a point source ("NPDES permit") that allows the holder to discharge pollutants below threshold levels incorporated in the permit.11

The CWA defines "discharge of a pollutant" to include "any addition of any pollutant to navigable waters from any point source."12 The CWA further defines "pollutant," "navigable waters," and "point source," but does not define "addition."13 In 1977, to protect western water interests, Senators Wallop (Wyoming) and Hart (Colorado) added § 101(g) to the CWA, in response to suggestions that reducing water diversions under state water law might be necessary to solve water quality problems:14

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. It is the further policy of Congress that nothing in this Act shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall cooperate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.15

These few statutory provisions frame the issue facing diverters in Colorado and other states.

The Miccosukee Case

Miccosukee involves an area of Florida that historically was part of the Everglades.16 Starting in the early 1900s, the state of Florida and later the U.S. Army Corps of Engineers constructed a system of levees, canals, water storage areas, and diversion facilities that alter the natural flow of water to accommodate human habitation.

The S-9 Pump at issue is operated by the South Florida Water Management District to move flood waters out of the developed portion of western Broward County (Fort Lauderdale and other municipalities), across levees, and into Water Conservation Area 3 ("WCA-3"), which flows west into the Everglades.

WCA-3 also is a water impoundment that conserves fresh water for beneficial use that otherwise flows to the Atlantic Ocean, preserves wetlands, and prevents saltwater intrusion. The water that the S-9 Pump conveys into WCA-3 includes urban and agricultural runoff that contains levels of phosphorus that exceed state water quality standards.

Legal Issues

In Miccosukee Tribe of Indians v. South Florida Water Management District,17 the Eleventh Circuit Court held that under the CWA, an "addition" "from" a point source18 occurs any time the point source changes the natural flow of a body of water that contains pollutants and causes that water to flow into another distinct body of navigable water into which it otherwise would not have flowed. The court asked whether the pollutant would have reached the water body "but for" the operation of the point source.19 The Eleventh Circuit Court's decision that the S-9 Pump was a point source added to a split among the Circuits on the issue of whether water transfers are point sources.20

CWA § 402 requires an NPDES permit for the discharge of pollutants by a point source.21 Countless western water structures discharge water that would not reach receiving water bodies "but for" the operation of man-made conveyances, such as ditches, canals, and tunnels. Therefore, the Miccosukee decision set off alarms among Colorado diverters, who, with other western water users, supported the Florida district's petition for certiorari.

In June 2003, the Supreme Court granted certiorari on 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.22

The Court heard oral arguments in January 2004.

U.S. Supreme Court's
Miccosukee Decision

In March 2004, the U.S. Supreme Court held that an engineered water transfer is a point source and remanded the case for a factual determination of whether the transfer is from one distinct water body to another. A unanimous Court concluded that the statutory

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."23

Although concurring in the result and in the Court's reading of "point source," Justice Scalia would have affirmed the Eleventh Circuit's ruling without reaching the other issues.24 The Court did not hold that such conveyances require an NPDES permit.

Dicta Concerning Unitary
Waters...