CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 02-626. Argued January 14, 2004--Decided March 23, 2004

Congress established the Central and South Florida Flood Control Project (Project) to address drainage and flood control problems in reclaimed portions of the Everglades. Five Project elements are at issue here. The first, the "C-11" canal, collects ground water and rainwater from an area that includes urban, agricultural, and residential development. The second Project element, pump station "S-9," moves water from the canal to the third element, an undeveloped wetland, "WCA-3," which is a remnant of the original South Florida Everglades. Petitioner, the Project's day-to-day operator (hereinafter District), impounds the water there to keep if from flowing into the ocean and to preserve wetlands habitat. Absent such human intervention, the water would flow back to the canal and flood the C-11 basin's populated areas. Such flow is prevented by levees, including the "L-33" and "L-37" levees at issue here. The combined effect of L-33, L-37, C-11, and S-9 is artificially to separate the C-11 basin from WCA-3, which would otherwise be a single wetland. The Project has an environmental impact on wetland ecosystems. Rain on the western side of L-33 and L-37 falls into WCA-3's wetland ecosystem, but rain falling on the eastern side absorbs contaminants, including phosphorous from fertilizers, before entering the C-11 canal. When that water is pumped across the levees, the phosphorus alters the WCA-3 ecosystem's balance, stimulating the growth of algae and plants foreign to the Everglades. Respondents (hereinafter Tribe) filed suit under the Clean Water Act (Act), which prohibits "the discharge of any pollutant by any person" unless done in compliance with the Act, 33 U. S. C. §1311(a). Under the Act's National Pollutant Discharge Elimination System (NPDES), dischargers must obtain permits limiting the type and quantity of pollutants they can release into the Nation's waters. §1342. The Act defines " 'discharge of a pollutant' " as "any addition of any pollutant to navigable waters from any point source," §1362(12), and defines " 'point source' " as "any discernible, confined and discrete conveyance" "from which pollutants are or may be discharged," §1362(14). The Tribe claims that S-9 requires an NPDES permit because it moves phosphorus-laden water from C-11 into WCA-3, but the District contends that S-9's operation does not constitute the "discharge of [a] pollutant" under the Act. The District Court granted the Tribe summary judgment, and the Eleventh Circuit affirmed. Both rested their holdings on the predicate determination that C-11 and WCA-3 are two distinct water bodies.

Held: The case is remanded for further proceedings regarding the parties' factual dispute over whether C-11 and WCA-3 are meaningfully distinct water bodies. Pp. 6-14.

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