washingtonpost.com

Court Urged to Require EPA Role
in Everglades Shift of Polluted Water

By Charles Lane
Washington Post Staff Writer
Thursday, January 15, 2004; Page A03

A lawyer for an Everglades Indian tribe urged the Supreme Court yesterday to require South Florida's water managers to get federal approval before they shift water from the suburbs to protected wetlands, as the justices heard oral arguments in a case that could affect state water supply and flood-control practices across the nation.

Representing the 500-member Miccosukee Tribe, Dexter W. Lehtinen told the court that, under the federal Clean Water Act, the South Florida Water Management District (SFWMD) must seek a permit from the Environmental Protection Agency to operate a pump that sends phosphorus-contaminated runoff from the lawns and shopping malls of western Broward County back into the Everglades.

Allowing the water district to continue pumping without a federally approved pollution-control plan, Lehtinen said, "would decimate Clean Water Act protections not only for the Everglades," but also for jurisdictions around the country.

But Jeffrey P. Minear, a lawyer for the Justice Department, which supports the SFWMD, told the court that the pump is not covered by the Clean Water Act because it is merely moving polluted water around, not adding pollution to the water, and that "the costs would be very substantial" if permitting were required.

The water district and its supporters -- which include not only the Bush administration, but also New York City and 11 western states -- say those costs would include a heavy new regulatory burden on states and cities that move vast amounts of agricultural and drinking water via aqueducts, pipes and reservoirs.

The Indian tribe is backed by 14 states, mostly from the East, and by environmental groups.

The pump at issue, known as S-9, has been in operation half a century. But the court's decision could have a wide impact on the $7.8 billion state-federal Comprehensive Everglades Restoration Plan, launched in 2000, which calls for the construction of a network of artificial marshes, reservoirs and pumps to rehydrate the endangered marshland ecosystem.

The Miccosukee Tribe says that without tough standards to ensure that the pumped-in water is free of phosphorus, the Everglades, whose waters are naturally almost phosphorus-free, will become choked with cattails that thrive in phosphorus-rich water. But the water district says permitting is not necessary because it is already making progress toward cleaning up the water.

The Clean Water Act requires any "point source" that discharges pollutants into "the waters of the United States" to get a permit. At the court yesterday, the justices grappled with the basic question of how to define and apply the latter term, given that the water S-9 pumps comes not only from rain, but also seeps through the swampy Florida ground from the Everglades.

Timothy S. Bishop, a lawyer for the SFWMD, told the court that S-9 is not adding pollutants to the water, but rather moving pollutants that are already in the water.

Justice Stephen G. Breyer objected that Bishop's position would mean that the EPA would lack the power to deal with a situation in which a state attempted to pump "filthy" river water into a pristine trout lake.

Bishop replied that the federal government and the states would have alternative means to deal with such a problem.

But Lehtinen said that Bishop's position, if adopted, would "make it impossible to administer the permitting system." The Clean Water Act is necessary, he said, as a "backstop" to make sure that states fulfill their promises to clean up pollution.

Justice Antonin Scalia objected that Lehtinen's solution would mean that permits would be mandatory even when water is transferred between equally polluted bodies.

Lehtinen replied that states could seek a "general permit" from the EPA that would allow them to operate on a continuing basis.

The case began six years ago, when the Miccosukee Tribe and an environmental group known as Friends of the Everglades filed suit in a Florida federal district court.

The court ruled in the tribe's favor, and in February 2002 the ruling was upheld by the Atlanta-based U.S. Court of Appeals for the 11th Circuit. The S-9 pump has remained in operation throughout the litigation.

The case is South Florida Water Management District v. Miccosukee Tribe of Indians, 02-626. A ruling is expected by July.