U.S. Supreme Court Reviews Everglades
Water Transfers Ruling

Western water officials carefully watch case

The U.S. Supreme Court recently heard arguments in a case many western water managers fear could bode unfavorable consequences for the operation of water transfer projects in their region.

The immediate issue is whether a pumping station in South Florida needs a Clean Water Act permit to pump storm water runoff into the Everglades. The Miccosukee Indian Tribe argue that such a permit is, in fact, needed, to protect the wetlands from runoff that often contains contaminants, much of it from agriculture areas using phosphorus-rich fertilizers.

The South Florida Water Management District, operators of the pumping station, disagree, arguing that its operation is not the actual source of the pollutants; it is merely transferring water from one side of a levee to another. In other words, the district functions as a neutral conveyor of water, not a polluter subject to Environmental Protection Agency and state regulation.

Last year a U.S. Court of Appeals upheld a lower court ruling in favor of the tribe stating that the pumping operators needed a National Pollutant Discharge Elimination System permit since they were piping water with various pollutants into the Everglades. The pumping company turned to the U.S. Supreme Court.
A decision favoring the tribe could set in motion a ripple effect, with implications to water managers throughout the nation, especially in the West where moving water to supply urban and other needs is a common practice. Western water officials fear a broad court decision for the tribal position could add expense and complications to the process of transferring water. For example, suppliers might need to treat water moved from one drainage to another.

Colorado’s attorney general summarized the concern in an amicus brief filed with the Supreme Court by Colorado and New Mexico: “At risk … is the continued ability to divert freely water from one basin for delivery in another basin in order to meet municipal, agricultural and industrial demands.”

Water transfers are a major western water supply strategy. Colorado relies heavily on water transfers, with both Denver and Colorado Springs piping Western Slope water over the Continental Divide. Consider also the Metropolitan Water District of Southern California. Much of its supplies are imported from northern California and the Colorado River basin.

Arizona dips into the Colorado River for one-third of its annual renewable water supplies, delivered via the Central Arizona Project. What permitting requirements could be imposed to allow Colorado River water, naturally high in salinity and with sediments from runoff, to enter receiving bodies of water? What additional measures might be required to blend CAP water with Agua Fria water in Lake Pleasant? Or to recharge water downstream of Waddell Dam? Or to mix CAP water with Salt and Verde river water?

Sides in the legal controversy are largely drawn along regional lines. The arid and semi-arid West’s reliance on transfer strategies to supply critical water needs allies the region with the water district. Along with the Bush Administration, which filed a brief in support of the water district, Western water districts and 11 Western states, led by Colorado and New Mexico, support the district’s position.

On the other side, Eastern and Midwestern states, having a relative abundance of water, are concerned about protecting their water supplies from polluting industries. Viewing the tribe’s position as protective of water quality, these state have generally aligned with the Miccosukee. Fourteen mostly Eastern states, led by New York and Pennsylvania, are supporting the tribal position in the case. Also aligned with the tribe are the Association of State Wetlands Managers and various environmental groups.
Justice Department lawyer Jeffrey P. Minear argued in court that the CWA does not apply in this case since the pumper is merely moving polluted water and not adding pollution to the water. Further, he said costs would be substantial if permitting were required.

Those on the other side of the issue say that allowing the water district to continue pumping without a federally approved pollution-control plan would undermine CWA protection, not only for the Everglades but also for other situations throughout the country. Environmentalists fear that a ruling against the tribe could leave the door open for further pollution, with water suppliers pumping contaminants from one basin to another.

Some observers disagree that a high court ruling in favor of the tribe will necessarily monkey wrench the western water transfer network. They are waiting to see how the Supreme Court decision is crafted, whether narrowly or broadly defined. With a narrow decision, the high court could concur with the appeals courts’ decision, that suppliers diverting water from one drainage must comply with CWA regulations, but, at the same time, leeway could be allowed for water suppliers to develop appropriate plans to best meet the rules. A decision in South Florida Water Management District v. Miccosukee Tribe is expected in the middle of the year.

“Takings” Ruling Could Affect Species Protection in West

Efforts to save two rare fish over a decade ago may have come at a very high cost. A federal judge awarded $26 million to a group of California farmers whose water was withheld to protect the fish. If upheld, the decision could also impose a cost on environmentalists who would then have a more difficult course to navigate to protect fish throughout the West.

At issue was the government’s decision to withhold billions of gallons of water from farmers in California’s Kern and Tulare counties between 1992 and 1994 in efforts to protect endangered winter-run chinook salmon and threatened delta smelt.

A ruling by Court of Federal Claims Senior Judge John Wiese stated that the government’s halting of water constituted a “taking,” that it was an intrusion on the farmers’ private property rights. The Fifth Amendment to the Constitution prohibits government from taking private property unless fair payment is provided.
Property right advocates chalk up the ruling as a victory. They view it as a vindication of their position that the federal government has been over zealous in regulating in favor of environmental protection.

Environmentalists fear the decision will have a ripple effect throughout the West, its implications felt whenever the federal government and property owners face off over efforts to save endangered species, a conflict that occurs relatively frequently. The decision could affect the implementation of the Endangered Species Act, especially the way water diversions are made.

Environmentalists claim the case represents a stealth attack on the ESA, upping the cost of protecting species to the point they become too costly to save. Other environmental areas would need to be neglected to pay the high price tag for preserving species.

The decision could have serious consequences to several western states. For example, California could face billions of dollars of claims, the result of courts having halted water diversions for environmental purposes. Also, in New Mexico an issue could be brewing, with the Bureau of Reclamation seeking court approval to take water from farmers and cities to protect the endangered Rio Grande silvery minnow. (See AWR, p. 7, July - Aug., 2003)

The question now is whether the Justice Department will take the next step and appeal the decision.

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