*** Chapter Outcome***
Explain the regulation of both point and nonpoint sources of pollution by the Clean
Water Act.
Point Sources
The EPA administrator establishes euent limitations for categories of
existing point sources. An euent limitation is a technology-based standard
that limits the amount of a pollutant that a point source may discharge into a
body of water.
Euent Limitations — Under the 1972 amendments, euent limitations
for existing point sources other than publicly owned treatment works
required application of the best practicable control technology currently
CASE 45-2
SOUTH FLORIDA WATER MANAGEMENT DISTRICT v.
MICCOSUKEE TRIBE OF INDIANS
Supreme Court of the United States, 2004
541 U.S. 95, 124 S.Ct. 1537, 158 L.Ed.2d 264
http://scholar.google.com/scholar_case?q=124+S.Ct.
+1537&hl=en&as_sdt=2,34&case=2885126139617306748&scilh=0
O’Connor, J.
Petitioner South Florida Water Management District operates a pumping
facility that transfers water from a canal 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
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.
The Central and South Florida Flood Control Project (Project) consists
of a vast array of levees, canals, pumps, and water impoundment areas
in the land between south Florida’s coastal hills and the Everglades.
Historically, that land was itself part of the Everglades, and its surface
Five discrete elements of the Project are at issue in this case. One is a
canal called “C—11.” C—11 collects groundwater and rainwater from a
104 square-mile area in south central Broward County. The area drained
by C—11 * * * is home to 136,000 people. At the western terminus of C—
11 is the second Project element at issue here: a large pump station
known as “S—9.” When the water level in C—11 rises above a set level, S
—9 begins operating and pumps water out of the canal. The water does
not travel far. Sixty feet away, the pump station empties the water into a
large undeveloped wetland area called “WCA— 3,” the third element of
water would simply <ow back east, where it would rejoin the waters of
the canal and <ood the populated areas of the C—11 basin. That return
<ow is prevented, or, more accurately, slowed, by levees that hold back
the surface waters of WCA—3. Two of those levees, L—33 and L— 37, are
the Hnal two elements of the Project at issue here. The combined eJect of
L—33 and L—37, C—11, and S—9 is artiHcially to separate the C—11
basin from WCA—3; left to nature, the two areas would be a single
wetland covered in an undiJerentiated body of surface and ground water
<owing slowly southward.
Rain on the western side of the L—33 and L—37 levees falls into the
wetland ecosystem of WCA—3. Rain on the eastern side of the levees, on
the other hand, falls on agricultural, urban, and residential land. Before it
enters the C—11 canal, whether directly as surface runoJ or indirectly as
groundwater, that rainwater absorbs contaminants produced by human
activities. The water in C—11 therefore diJers chemically from that in
WCA—3. Of particular interest here, C—11 water contains elevated levels
of phosphorous, which is found in fertilizers used by farmers in the C—11
basin. When water from C—11 is pumped across the levees, the
phosphorous it contains alters the balance of WCA—3’s ecosystem (which
is naturally low in phosphorous) and stimulates the growth of algae and
plants foreign to the Everglades ecosystem.
biological integrity of the Nation’s waters.” [Citation.] To serve those
ends, the Act prohibits “the discharge of any pollutant by any person”
unless done in compliance with some provision of the Act. [Citation.] The
provision relevant to this case, [citation], establishes the National
Pollutant Discharge Elimination System, or “NPDES.” Generally speaking,
the NPDES requires dischargers to obtain permits that place limits on the
type and quantity of pollutants that can be released into the Nation’s
waters. The Act deHnes the phrase “‘discharge of a pollutant”’ to mean
“any addition of any pollutant to navigable waters from any point
source.” [Citation.] A “‘point source,”’ in turn, is deHned as “any
discernible, conHned and discrete conveyance,” such as a pipe, ditch,
channel, or tunnel, “from which pollutants are or may be discharged.”
[Citation.]
According to the Tribe, the District cannot operate S—9 without an
NPDES permit because the pump station moves phosphorous-laden water
from C—11 into WCA—3. The District does not dispute that phosphorous
* * *
The District and the Federal Government * * * advance three separate
arguments, any of which would, if accepted, lead to the conclusion that
the S—9 pump station does not require a point source discharge permit
under the NPDES program. Two of these arguments involve the
application of disputed contentions of law to agreed-upon facts, while the
third involves the application of agreed-upon law to disputed facts. For
reasons explained below, we decline at this time to resolve all of the
parties’ legal disagreements, and instead remand for further proceedings
regarding their factual dispute.
* * *
* * * For purposes of determining whether there has been “any
addition of any pollutant to navigable waters from any point source,” * *
waters,” the Government’s approach would lead to the conclusion that
such permits are not required when water from one navigable water body
is discharged, unaltered, into another navigable water body. That would
be true even if one water body were polluted and the other pristine, and
* * *
In the courts below, as here, the District contended that the C—11
canal and WCA—3 impoundment area are not distinct water bodies at all,
but instead are two hydrologically indistinguishable parts of a single
water body. The Government agrees with the District on this point,
claiming that because the C—11 canal and WCA—3 “share a unique,
intimately related, hydrological association,” they “can appropriately be
viewed, for purposes of Section 402 of the Clean Water Act, as parts of a
single body of water.” [Citation.] The Tribe does not dispute that if C—11
and WCA—3 are simply two parts of the same water body, pumping
water from one into the other cannot constitute an “addition” of
pollutants. * * *
We do not decide here whether the District Court’s test is adequate for
determining whether C—11 and WCA—3 are distinct. Instead, we hold
only that the District Court applied its test prematurely. * * * The record
before us leads us to believe that some factual issues remain unresolved.
The District Court certainly was correct to characterize the <ow through
the S—9 pump station as a non-natural one, propelled as it is by
diesel-Hred motors against the pull of gravity. And it also appears true
that if S—9 were shut down, the water in the C—11 canal might for a
brief time <ow east, rather than west, as it now does. But the eJects of
shutting down the pump might extend beyond that. The limited record
before us suggests that if S—9 were shut down, the area drained by C—
11 would <ood quite quickly. [Citation.] That <ooding might mean that C
—11 would no longer be a “distinct body of navigable water,” [citation]
The 1977 Amendments — divided pollutants into three categories — toxic,
conventional, and nonconventional — and established deadlines (later
extended) and standards for each category.
Nonpoint Source Pollution
Controlling nonpoint source pollution, such as agricultural and urban runoJ,
is more difficult than controlling point source pollution. In the 1987
New Source Performance Standards
The act requires the EPA administrator to establish federal performance
standards for new sources. A standard should re<ect the greatest euent
reduction than can be achieved by “the best available demonstrated control
technology.” The preferred standard for new sources is one “permitting no
discharge of pollutants.”
D. HAZARDOUS SUBSTANCES
*** Chapter Outcome***
(Question 5, part a) Explain the Federal Insecticide, Fungicide and Rodenticide Act.
The Federal Insecticide, Fungicide and Rodenticide Act
FIFRA requires that a pesticide be registered with the EPA before any person
in any state may distribute it. To be registered, a pesticide must perform its
intended function without “unreasonable adverse eJects on the
environment,” which FIFRA deHnes as any unreasonable risk to humans or
the environment, taking into account the economic, social, and
environmental costs and beneHts of a pesticide’s use. Thus, FIFRA expressly
requires the EPA to consider the costs of the action it takes under the
statute.
EPA may cancel a pesticide’s registration if subsequent data reveal more
hazards. Cancellation takes years, owing to the administrative process and
scientiHc review.
Until recently, the FIFRA did not address the problem of old pesticides
registered under earlier, less strict standards. In 1988, Congress amended
*** Chapter Outcome***
(Question 5, part b) Explain the Toxic Substances Control Act.
The Toxic Substances Control Act
Congress passed the Toxic Substances Control Act (TSCA) in 1976 to regulate
the manufacture of new chemicals, the testing of suspect chemicals, and the
regulation of chemicals that present an unreasonable risk of injury to health
and the environment, and the inventorying of all chemicals.
SpeciHcally, a manufacturer must notify the EPA before it manufactures a
new chemical or makes a signiHcant new use of an existing chemical. The
Once the EPA determines that a substance “presents or will present an
unreasonable risk of injury to health or the environment,” the agency may
restrict or prohibit use of the substance.
The EPA is required to keep a current inventory of all chemicals
manufactured in the United States. The Hrst such inventory was completed
in 1980 and contained 55,000 substances. A chemical not in the inventory is
subject to premanufacture review. Though not required to do so by the act,
the EPA reviews chemicals already on the inventory to determine their
safety.
The EPA may impose civil penalties, as adjusted for in<ation in January 2009,
of up to $37,500 per day for a violation of the TSCA. Maximum criminal
penalties for knowing violations are $25,000 Hnes for each day of violation
and/or one year’s imprisonment. Moreover, under the Federal Alternative
Fines Act, if any person derives pecuniary gain from the oJense, or if the
*** Chapter Outcome***
(Question 5, part c) Explain the Resource Conservation and Recovery Act.
The Resource Conservation and Recovery Act
Also known as the RCRA and passed in 1976, this act is meant to regulate
treatment of solid waste, particularly hazardous waste. Under this statute,
the states are primarily responsible for nonhazardous waste, while the EPA
regulates all phases of hazardous waste — generation, transportation and
disposal. The federal government establishes criteria for identifying
hazardous waste. Factors include toxicity, persistence, degradability,
<ammability, and corrosiveness.
Generators (producers) of hazardous waste must follow standards for record
keeping, labeling, use of appropriate containers, and reporting. Generators
must also certify that the volume and toxicity of the waste have been
reduced to the greatest degree economically practicable and that the
method of treatment, storage, and disposal minimizes the threat to health
and the environment.
violations are $50,000 for each day of violation and/or Hve years’
imprisonment. Where a knowing violation endangers a person, the maximum
criminal penalty is a $1 million Hne and/or Hfteen years’ imprisonment.
Moreover, under the Federal Alternative Fines Act, if any person derives
pecuniary gain from the oJense, or if the oJense results in pecuniary loss to
a person other than the defendant, the defendant may be Hned up to the
greater of twice the gross gain or twice the gross loss.
*** Chapter Outcome***
(Question 5, part d) Explain the Superfund.
The Superfund
While the RCRA regulates current and future generation, transportation, and
disposal of hazardous waste, it provides only limited authority for cleanup of
abandoned or inactive hazardous waste sites. To Hll this gap, and to respond
to the serious environmental and health risks posed by industrial pollution,
Congress in 1980 enacted the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), better known as the Superfund. By
1986, the EPA had begun the cleanup of only 8 sites and had spent $1.6
billion in doing so. This performance and other problems led Congress to
amend CERCLA by enacting the Superfund Amendments and Reauthorization
CERCLA requires the federal government to establish a National Contingency
Plan (NCP) prescribing procedures and standards for responding to
hazardous substance releases. The NCP also sets criteria for prioritizing sites
to be cleaned up and identiHes, at least annually, the sites with highest
priority for immediate cleanup.
The EPA may impose a civil penalty of up to $37,500 per day of violation; for
repeat violations, the penalty may reach up to $107,500 per day of violation.
The CERCLA trust fund, which pays for hazardous waste removal and other
remedial actions, is Hnanced in part by a surtax on businesses with annual
incomes of over $2 million, a tax on petroleum, a tax on chemical
feedstocks, and money recovered from persons responsible for releases of
hazardous substances.
In 2002, President Bush signed into law the Small Business Liability Relief
and BrownHelds Revitalization Act. The purpose of the Act is to promote the
purchase, development and use of brownHelds (industrially polluted property
which are not su9ciently contaminated as to be classiHed as a priority by
either the EPA or state environmental agencies). The Act attempts to
accomplish this purpose by providing protection from liability under CERCLA
to any purchaser of contaminated property, to owners and developers who
clean up property under state voluntary cleanup programs, and to owners of
property that have become contaminated by migrating pollutants.
NOTE: See Figure 45-1: Major Environmental Statutes.
*** Chapter Outcome***
(Question 5, part e, f, & g) Explain the Montreal Protocol, the Kyoto Protocol,
and the United Nations Framework Convention on Climate Change.
E. INTERNATIONAL PROTECTION OF THE OZONE LAYER
In 1987, the United States and 23 other countries entered into the Montreal
Protocol on Substances that Deplete the Ozone Layer, a treaty designed to
prevent pollution that harms the ozone layer. The treaty requires all
signatories to reduce their production and consumption of all chemicals, in
particular chloro<uorocarbons (CFCs) that deplete the ozone layer. (Ozone in
the stratosphere helps protect the earth from harmful ultraviolet radiation.)
In1992 165 nations negotiated an international treaty on global warming at
the United Nations Framework Convention on Climate Change (UNFCCC) in
Rio de Janeiro. The Convention sets an overall framework for
intergovernmental eJorts to address the challenge posed by climate change.
Amendment to the Kyoto Protocol was adopted. The Amendment includes a
second commitment period from 2013 through 2020 and a revised list of
greenhouse gases to be reported on by the parties in the second
commitment period. The amendment, however, has not yet been accepted
by the requisite number of nations to enter into force. More than 190
countries have ratiHed the Kyoto Protocol. The United States is the only
signatory to the Kyoto Protocol not to ratify the protocol.