Addition of a Pollutant and Division of a Natural Body of Water: Should There be a New Math for NPDES Permits Under the Clean Water Act?

• Author: Richard Konkoly-Thege
• Position: J.D. with a Certificate of Concentration in Environmental Law, Capital University Law School
• Pages: 787-820

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The Everglades are an American treasure on par with the Grand Canyon, Yellowstone, and California's ancient redwoods. There is no other place else like them in the world. But the Everglades are dying. And if we do not act now, we may very well lose the opportunity to save them for future generations.¹

I Introduction

The Everglades National Park (the Everglades) is a vibrant and dazzling ecosystem that supports an extensive plant life and a "wealth of fish, lobsters, shrimp, bass, catfish, alligators, and numerous other animals."² This environmental marvel, located in southern Florida, is currently subject to increased pollution caused by elevated phosphorous levels, disrupted water flow, and extensive water controls that were developed within the past fifty years.³ Only recently has the federal government and the State of Florida recognized the degradation⁴ In response, "comprehensive and expensive environmental protection plan[s]" have been developed to "rebalance the Everglades' ecosystem."⁵

The water control systems were developed, in part, to control flooding in residential areas.⁶ These systems collect stormwater and agricultural runoff to prevent areas of Broward County, Florida, from flooding.⁷ A portion of the collected water is then pumped into a water conservation area of the Everglades.⁸ Unfortunately, the collected waters contain pollutants, and the South Florida Water Management District (SFWMD) pumps these already polluted waters into a water conservation area that has lower concentration of those pollutants.⁹ While the entire area wasPage 788 historically and hydrologically one body of water, many parts of the Everglades are now separated by extensive systems of canals, basins, levees, and pumping stations.¹⁰ In an effort to combat the increased pollutant levels in the Everglades, the Miccosukee Tribe of Indians (the Tribe) and the Friends of the Everglades together filed suit against the SFWMD to force the water management district to acquire a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act.¹¹

Part II discusses the Everglades' overall geomorphic history and development as a natural water body that was historically, or hydrologically, one "sheet" of water. Additionally, it will discuss the development and destruction of the Everglades over the past century, focusing on the current water controls that introduce already polluted water into a water conservation area of the Everglades. Part III will review the procedural history of the case and the Supreme Court's holdings.

Part IV is divided into various subsections in order to analyze the legal arguments in Miccosukee I. It will discuss the initial development of the Clean Water Act (CWA),¹² the legislative intent behind the CWA, and specifically, the NPDES permitting system under the CWA and its progression. Part IV will also review what constitutes an "addition of any pollutant"¹³ and consider whether it matters if the already polluted water is merely conveyed. It will discuss historically connected water bodies and whether they are forever one body of water or whether they can, at some point, become separate and distinct bodies of water. Ultimately, Part IV will indicate whether water management districts and the like are exempt from the requirement to obtain a NPDES permit.

Part V discusses the potential impact of the Supreme Court's decision and possible subsequent holdings on remand. It will cover the burdens imposed upon SFWMD, other water management districts, and other municipalities if they are required to get a NPDES permit to "discharge" water that they are merely conveying from one area to another hydrologically connected area. Part V will discuss cost increases in managing water or providing clean water, and the possible increase in taxpayer costs. Part V will also discuss the impact on the Everglades, pristine areas, and the national environment if no NPDES permit isPage 789 required. It will speak to the potential pollution of clean water, increased costs of cleaning and protecting waters, the increased environmental damage caused by polluting, and ultimately, the damage to flora, fauna, animals, and habitats.

The SFWMD ultimately believes that because it is merely transporting already polluted water, and historically the water bodies were connected, it is not "adding" a pollutant "from a point source," and thus it is not required by the CWA to obtain a NPDES permit.¹⁴ However-in light of the Court's decision in Miccosukee I, current Supreme Court precedent with regard to the strict statutory interpretation of environmental statues, Circuit Court precedent, and the legislative history and intent behind the CWA and the NPDES permitting program-it is likely that upon remand, the district court will decide that it is necessary for the SFWMD to obtain a NDPES permit due to its continued pollution of the Everglades.

II The Everglades: Construction, Destruction and Control

A History and Development of the Everglades

The Everglades is a water-based ecosystem, known as the "River of Grass," with a total surface area of 4,500 square miles, flowing from Lake Okeechobee to the Gulf of Mexico.¹⁵ Congress has recognized the Everglades as a valuable environmental treasure that "includes uniquely-important and diverse wildlife resources and recreational opportunities."¹⁶ In the Water Resources Development Act of 2000, Congress found that preserving the Everglades as part of "the pristine and natural character of the South Florida ecosystem is critical to the regional economy."¹⁷

Historically, the hydrologically connected water flowed slowly from Lake Okeechobee down through the Everglades into the sea in a large, slow moving, quiet, and unrestricted sheet.¹⁸ However, the natural flowPage 790 was altered by the construction of "1400 hundred miles of canals, levees and dikes, 125 water control structures, and 18 pumping stations" by the United States Army Corps of Engineers (Corps).¹⁹ In 1948, Congress authorized the Corps, through the Central and South Florida Project (C&SF), to construct the canals, levees, water control structures, and water impoundment areas in order to advance the preservation of fish and wildlife, to control regional groundwater and salinity in South Florida, and to create proper drainage to control flooding.²⁰ In an effort to further protect and benefit the Everglades, Congress, via the Water Resources Development Act of 1996 (WDRA 1996), instructed the Secretary of the Army to develop a "comprehensive plan for the purpose of restoring, preserving, and protecting the South Florida ecosystem."²¹ As a result, the Secretary developed the Comprehensive Everglades Restoration Plan (CERP).²²

Adopted by Congress in 2000, CERP allows for modifications of the C&SF Project in order to "restore, preserve, and protect" the South Florida ecosystem which includes the Everglades, "while providing for other water-related needs of the region, including water supply and flood protection."²³ CERP's objective, in part, is "to ensure the protection of water quality [and reduce] the loss of fresh water [in order to improve] the environment" of the Everglades ecosystem.²⁴ In order to reach those admirable goals, Congress approved more than one billion dollars for initial projects. ²⁵ However, in carrying out those projects, Congress specifically required the Secretary to "ensure that all ground water and surface water discharges from any project feature authorized by this subsection [to] meet all applicable water quality standards and applicable water quality permitting requirements."²⁶

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B Protecting the Everglades

Phosphorous levels are "the defining chemical characteristic" of the Everglades.²⁷ The Everglades is a wetland system that, in its natural state, contains minimal "plant nutrient minerals and organisms [, but is normally] rich in oxygen in all depths."²⁸ Normally, the system contains only limited amounts of phosphorus, which dictates "the type and distribution of aquatic flora, and fauna."²⁹ The increased phosphorous levels have led to an imbalance in native flora and fauna, resulting in new, abnormal, and harmful growth.³⁰ Increased phosphorous levels promote cattail expansion, which crowds out "native sawgrass and other vegetation, thus affecting the habitat of other wildlife, such as birds and fish."³¹ The phosphorous pollution is also killing coral...