South Florida Water Management District v. Miccosukee Tribe of Indians, et al.

Supreme Court of the United States

Argued Jan. 14, 2004.

Decided March 23, 2004. Rehearing Denied May 17, 2004

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*98 Justice O'CONNOR delivered the opinion of the Court.

Petitioner South Florida Water Management District operates a pumping facility that transfers water from a canal *99 into a reservoir a short distance away. Respondents Miccosukee Tribe of Indians and the Friends of the Everglades brought a citizen suit under the Clean Water Act contending that the pumping facility is required to obtain a discharge permit under the National Pollutant Discharge Elimination System. The District Court agreed and granted summary judgment to respondents. A panel of the United States Court of Appeals for the Eleventh Circuit affirmed. Both the District Court and the Eleventh Circuit rested their holdings on the predicate determination that the canal and reservoir are two distinct water bodies. For the reasons explained below, we vacate and remand for further development of the factual record as to the accuracy of that determination.

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A

 [1] In its opening brief on the merits, the District argued that the NPDES program**1543 applies to a point source “only when a pollutant originates from the point source,” and not when pollutants originating elsewhere merely pass through the point source. Brief for Petitioner 20. This argument mirrors the question presented in the District's petition for certiorari: “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.” Pet. for Cert. i. Although the Government rejects *105 the District's legal position, Brief for United States as Amicus Curiae 21, it and the Tribe agree with the factual proposition that S-9 [pump] does not itself add any pollutants to the water it conveys into WCA-3 [“undeveloped wetland Water Conservation Area”].

This initial argument is untenable, and even the District appears to have abandoned it in its reply brief. Reply Brief for Petitioner 2. A point source is, by definition, a “discernible, confined, and discrete conveyance.” § 1362(14) (emphasis added). That 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.” § 1362(7). Tellingly, the examples of “point sources” listed by the Act include pipes, ditches, tunnels, and conduits, objects that do not themselves generate pollutants but merely transport them. § 1362(14). In addition, one of the Act's primary goals was to impose NPDES permitting requirements on municipal wastewater treatment plants. See, e.g., § 1311(b)(1)(B) (establishing a compliance schedule for publicly owned treatment works). But under the District's interpretation of the Act, the NPDES program would not cover such plants, because they treat and discharge pollutants added to water by others. We therefore reject the District's proposed reading of the definition of “ ‘discharge of a pollutant’ ” contained in § 1362(12). That definition includes within its reach point sources that do not themselves generate pollutants.

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