"Meaningfully Distinct" Waters, the Unitary Waters Theory, and the Clean Water Act: Miccosukee v. South Florida Water Management District

De Muizon, Priscillia
August 2005
Ecology Law Quarterly;2005, Vol. 32 Issue 3, p417
Academic Journal
The Miccosukee Tribe of Indians and Friends of the Everglades brought suit against a water management district in southern Florida, alleging that it was in violation of the Clean Water Act for failing to obtain a National Pollution Discharge Elimination System (NPDES) permit for a pump which propels polluted water from a drainage canal into the Everglades. On appeal, the United States Supreme Court remanded the case for further developpment of the record on whether the canal and water conservation area are "meaningfully distinct" bodies of water for permitting purposes. On remand the defendants will be able to pursue the "unitary waters theory" advanced by the United States as amicus curiae late in the stages of litigation, which posits that all navigable waters of the United States are one, and that movement of water (and pollutants) from one navigable water body to the other does not require an NPDES permit. This note explores the potential implications of the unitary waters theory and concludes that the lower court will reject it on remand. It also discusses the related but discrete issue of whether the two water bodies in question are "meaningfully distinct." Finally, it argues that an NPDES permit for the pump will not actually solve what is at the heart of this dispute--pollution of the Everglades, and that efforts should instead be focused the state and federal projects already working to decrease the nonpoint source pollution that is poisoning this national treasure.


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