Does it hold water? Repudiating the "singular entity" or "unitary waters" approach to the Clean Water Act.

• Author: Sattizahn, Gregory L.

I.

INTRODUCTION

In South Florida Water Management District v. Miccosukee Tribe of Indians, the United States Supreme Court was presented with a novel and untested argument by the United States, appearing as amicus curiae, which asserted the bold proposition that for the purpose of the Clean Water Act's (hereinafter "CWA") National Pollution Discharge Elimination System (hereinafter "NPDES"), all navigable waters of the United States should be considered unitarily when determining whether there is an addition of a pollutant to a navigable water. (2) Under this approach, the United States asserted that a NPDES permit would not be required when unaltered water from one navigable body of water containing pollutants was intermingled with another navigable water body. Furthermore, the United States maintained that in such a situation a NPDES permit was unnecessary irrespective of whether the pollutant discharge was naturally occurring or accomplished through an unnatural conveyance such as a point source, the traditional point of regulation under the CWA. The United States maintained that the NPDES permit requirement was avoided because there was no "addition" to the navigable waters of the United States.

Despite overtures that this "unitary waters" or "singular entity" approach was not consistent with the purpose of the Act or the regulations then in place, the United States Supreme Court left this argument unanswered, and reversed and remanded for further factual development of the record, specifically allowing the United States an opportunity to advance this argument below. We have certainly not heard the end of the "unitary waters" theory. Consequently, this article examines the United States' proposed "unitary waters" or "singular entity" approach to navigable waters under the CWA as it relates to the NPDES permit requirement.

To aid in the discussion, Section II of this article provides an overview of the CWA by examining the relevant statutory provisions and developed jurisprudence concerning the "addition" of a pollutant to navigable waters of the United States. Section III of this article proceeds with a discussion of Miccosukee and the United States' position in that case advocating the "singular entity" or "unitary waters" approach to the CWA. Section IV of this article offers an analysis of the United States' unitary waters approach to the NPDES permitting system. Section V of this article concludes that the unitary waters doctrine is unsupported by the statutory framework, case law, and overall purpose and intent of the CWA, specifically the NPDES permit requirement.

II.

OVERVIEW OF THE CWA

1. Relevant Provisions

   Congress enacted the CWA in 1972 with the stated objective to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." (3) To meet this goal, the CWA prohibits "the discharge of any pollutant by any person" unless the provisions of the Act allow otherwise. (4) The relevant provision concerning the legality of a discharge is 33 U.S.C. [section] 1342, which establishes the National Pollutant Discharge Elimination System. (5) The NPDES permit has been characterized as "the most important component of the Act" and is the key to obtaining the CWA's ambitious goals. (6) In its most basic form, the NPDES permit limits the types and quantities of pollutants that can be discharged into the navigable waters of the United States. (7)

   A "discharge of a pollutant" is defined in the CWA as "any addition of any pollutant to navigable waters from any point source." (8) A "point source" is "any discernible, confined and discrete conveyance, including but not limited to any ... pipe, ditch, channel, or tunnel ... from which pollutants are or may be discharged." (9) As a result, the prerequisites for the NPDES permit requirement are (1) discharge, or any addition; (2) of any pollutant; (3) from a point source; (4) to navigable waters. These requirements have all become terms of art under the CWA. Therefore, it is helpful to briefly explore some of the relevant case law interpreting these terms.

2. Developed Jurisprudence

   1. Discharge or Addition

      A NPDES permit is required for "any addition of any pollutant to navigable waters from any point source." (10) However, the term "addition" is not defined in the CWA. Therefore, case law has become the mode for definition and interpretation of that term and its import under the CWA.

      In Dubois v. United States Department of Agriculture, the First Circuit Court of Appeals addressed the application of the NPDES permit requirement to a ski resort that drew water for snowmaking from Loon Pond, a pristine water body in the White Mountain National Forest. (11) After the water was pumped through an artificial snowmaking system, the remaining water was deposited into Loon Pond. (12) This return flow not only included water that was originally drawn from Loon Pond but also included return flows from other water bodies which were distinct from, and of lesser quality than, Loon Pond. (13) The court of appeals was asked to determine whether the return flow from the snowmaking equipment constituted an "addition of a pollutant" to Loon Pond within the meaning of the CWA.

      The Forest Service argued, and the district court held, that there was no addition of a pollutant to Loon Pond under these facts because the waters were from a single entity. (14) However, in rejecting the "singular entity" theory, the court of appeals reversed the district court's determination that the East Branch and Loon Pond, the two contributing water bodies to the snow making operation, were part of a "singular entity" as "waters of the United States" and determined that they "were not to be considered individually in this context." (15) The court held that "there is no basis in law or fact for the district court's 'singular entity' theory." (16) The court stated:

       The error in the [district] court's reasoning is highlighted by an analogy the court drew: it hypothesized a pond in which we place a pipe ... and we pump the pond water from the bottom to the surface. No one would reasonably contend that internal pumping causes an 'addition' of pollutants to the pond. Instead, we would consider the pumping to be a redistribution of pollutants from one part of the pond to another. Such a situation is not at all analogous to the instant case. There is no barrier separating the water at the top of the pond from the water at the bottom of the same pond; chemicals, organisms, and even heat are able to pass from the top to the bottom or vice versa, at rates determined only by the laws of science. In contrast, the transfer of water or its contents from the East Branch to Loon Pond would not occur naturally. This is more analogous to the example the district court gave from the opposite end of the spectrum: where water is added 'from an external source' to the pond and an NPDES permit is required. (17) 

      Therefore, the court concluded that the transfer of pollutants from one body of water to another constituted an "addition of pollutants" within the meaning of the CWA. (18)

      But in another line of cases addressing the "addition of a pollutant," the United States successfully argued that a dam does not constitute a point source creating the addition of pollutants when it merely passes water from a dam reservoir downstream. (19) Rather, the point or nonpoint character of the discharge was created when such pollution initially entered navigable water. (20) In excusing the NPDES permit requirement in this situation, the District of Columbia Court of Appeals deferred to the EPA's view that the NPDES permit program was inapplicable because of the unique nature of the dam-facilitated pollution and the deference to state water management practices, of which dams represented "a major component." (21) As a result, water passing through a dam unaltered did not create the "discharge of a pollutant" under the CWA. (22)

      Likewise, National Wildlife Federation v. Consumers Power Company reaffirmed the reasoning in Gorsuch discussed above and determined that a hydroelectric facility that did not add anything to the navigable water from the "outside world" did not require a NPDES permit for the movement of pollutants already in the water. (23) The court held that the release of turbine generating water which contained fish entrails did not constitute a "discharge" under the CWA. (24) "However, if the dam itself added pollutants to the water, rather than merely transmitting the water coming into it, in whatever altered form, then it would be subject to the NPDES permit system." (25)

      For comparison, in Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, the Second Circuit Court of Appeals addressed the applicability of the permit system to an interbasin transfer. (26) The city of New York transferred water from a reservoir through a tunnel and eventually into Esopus creek. (27) The water from the creek flowed to another reservoir that facilitated its delivery to the city for use as drinking water. (28) Trout Unlimited alleged that the water discharged into Esopus Creek required a NPDES permit because the tunnel that facilitated the discharge allowed the transfer of suspended solids, turbidity, and heat. (29) In reversing and remanding, the Second Circuit Court of Appeals determined that "for there to be an 'addition' a 'point source' must introduce the pollutant into navigable water from the outside world." (30) However, the Court only embraced this view "provided that 'outside world' is construed as any place outside the particular water body to which pollutants are introduced." (31) Consequently,

       Given that understanding of 'addition,' the transfer of water containing pollutants from one body of water to another, distinct

      body of water is plainly an addition and thus a 'discharge' that

      demands an NPDES permit. (32)

      The Court distinguished both Gorsuch and Consumers Power...