U.S. High Court Declines To Hear Dispute Over Transfer Of Pollutants In Water

WASHINGTON, D.C. - (Mealey's) The U.S Supreme Court on Nov. 29 denied a petition for certiorari filed by environmental groups in Florida over whether the transfer of water pollutants from one body of water to another constitutes an "addition" of pollutants to navigable waters therefore requiring a permit under the Clean Water Act (CWA) (Friends of the Everglades, et al. v. South Florida Water Management District, et al., No. 10-196, U.S. Sup.).

The Friends of the Everglades, Florida Wildlife Federation and Fisherman Against Destruction of the Environment asserted that the South Florida Water Management District's (SFWMD) release of pollutants without a National Pollutant Discharge Elimination System (NPDES) permit violated the CWA.  The groups initially sued the SFWD and its executive director in the U.S. District Court for the Southern District of Florida in 2002.

The SFWMD argued that the CWA's prohibition should not apply because its pump stations were not themselves the origin of pollutants but instead merely transferred already polluted water.  The federal government and U.S. Sugar Corp. intervened on behalf of the SFWMD.  After a two-month bench trial, the District Court held that the operation of three pump stations without a NPDES permit violated the CWA.  The District Court found that the canals from which the SFWMD's pumps draw water were "meaningfully distinct" from the lake into which they discharge.

SFWMD appealed to the 11th Circuit U.S. Court of Appeals.  After briefing was completed, the U.S. Environmental Protection Agency issued a regulation exempting "water transfers" from the NPDES permitting requirement. In July 2009, the 11th Circuit reversed the District Court and held that in light of EPA's rule, the SFWMD's pumping stations were not subject to the NPDES permit requirement.

In their petition, the environmental groups asked the high court to decide whether all waters of the United States may be treated as a "unitary" whole for purposes of the CWA's provisions requiring permits for point source discharges, so that transferring pollutants from one distinct water body to another does not constitute an "addition" of the pollutants to navigable waters and therefore does not require a permit, the environmental groups said.

Justice Kagan did not participate in the consideration or decision of the petition.

[Editor's Note:  Full coverage will be in the December issue of Mealey's Litigation Report: Pollution Liability.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]

For more information, call editor Shane Dilworth at 215-988-7725, or e-mail him at Shane.Dilworth@lexisnexis.com.