Everglades cleanup at stake in court case

A four-foot alligator basks in the bright sunshine on the steep bank of a canal, as five plump cormorants leisurely digest their lunch while perched on a string of orange floats.

Aside from the steady din of a nearby flood-control pump and the man-made configuration of the waterway, the scene appears a slice of idyllic Florida.

Indeed, from the east side of the S-9 pumping station at the edge of the Everglades, it is hard to imagine this as the grounds for a major environmental case before the US Supreme Court.

But appearances can be deceiving. A few hundred yards over the levee on the west side of the pumping station, the picture changes. The torrent of water spewing from the backside of the pump has churned up a foot-thick blanket of yellow-brown froth. Blobs of foam drift over murky, greenish-brown water and out into what once were the pristine environs of the Florida Everglades.

"I've watched this park go from a beautiful paradise to a polluted pit," says John Pate, who has spent 30 years here guiding fishermen to trophy-sized bass.

Wednesday, the US Supreme Court will be asked to decide whether the agency operating the S-9 pumps may be held responsible under the federal Clean Water Act for the polluted water it transports from the urban flood-control system on the east side of the levee into the environmentally sensitive Everglades on the west.

The case has major implications for the $8 billion Everglades restoration project, the largest environmental cleanup ever attempted. In addition, it could dramatically increase regulations applied to the movement of water nationwide, particularly in the water-scarce Western states.

"This may seem like a little pump case, but the reality is this case is going to have an impact throughout the country in how folks manage water," says Scott Glazier, a lawyer with the South Florida Water Management District, the flood-control agency that runs the S-9 pumping station.

The precise issue before the high court is whether the agency is required to obtain a permit under the Clean Water Act to continue pumping water from the flood-control canal into the Everglades. Water in the canal is tainted with urban runoff, including pesticides, heavy metals, and the nutrient phosphorus.

The case highlights the difficult balance between environmentalists seeking to prevent the flow of pollutants into the fragile Everglades ecosystem and the interests of 136,000 residents who rely on the S-9 pumping station to prevent widespread flooding of their homes and businesses.

The Everglades restoration plan, approved by Congress in 2000, seeks to balance those competing interests. But some in south Florida are worried about what they see as the slow pace of the cleanup.

The Miccosukee Indian Tribe, which lives in portions of the Everglades, filed suit under the Clean Water Act. The suit asks a federal judge to order the state flood-control agency to stop polluting the Everglades. "The biggest lesson of Everglades restoration is these agencies don't act without a court order," says Dexter Lehtinen, the Miccosukee Tribe lawyer who filed the suit.

Mr. Lehtinen, a former US attorney in Miami who is married to US Rep. Ileana Ros-Lehtinen (R), is something of a hero among environmentalists in south Florida. It was Lehtinen's lawsuit filed in 1988 - while he was still US attorney - that set the stage for the Everglades restoration project. Now he is determined to maintain pressure on the agencies involved in the cleanup - in part by asking the courts to enforce the Clean Water Act. "It is the Clean Water Act that makes restoration possible," he says.

Mr. Glazier of the flood-control agency disagrees. He says the Clean Water Act lawsuit is a distraction that is diverting scarce money and personnel from work on the restoration project. There are more than 20 other pumps in and around the Everglades that could be the target of identical lawsuits should the high court require a Clean Water Act permit to use the S-9 pump, Glazier says.

"If we lose this case, I am going to have a flood of litigation," Glazier says. "There is a huge potential loss here if the taxpayers are forced to spend all this money for us to run from site to site to site."

At the heart of the Supreme Court case is a relatively straightforward question: Do the permit requirements of the Clean Water Act apply only to those whose facilities actually cause pollution, or do they also apply to anyone whose actions help spread preexisting pollution?

Glazier says the Clean Water Act permit requirements are aimed at regulating industrial polluters, not flood-control agencies. Unlike a plant that dumps harmful substances into a river, the water-management district is merely moving water from one side of a levee to the other, he says.

But lawyers for the Miccosukee Tribe argue that it doesn't matter who caused the pollution: The Clean Water Act makes it illegal for anyone to direct polluted water into cleaner water unless they have first obtained a federal permit. The Clean Water Act prohibits "any addition of any pollutant ... from any point source."

Lawyers for the tribe note that except for the operations of the S-9 pump, the water in the flood-control canal would flow east toward the ocean. "Backpumping pollutants into the Everglades Protection Area which would not otherwise appear there is an 'addition' under any common, or technical, meaning of the word. That is all this court need consider to resolve this case," says Lehtinen in his Supreme Court brief.

Lawyers for the water district do not dispute that the S-9 pumping station causes polluted water to enter the Everglades. But they insist that a pump alone cannot "add" pollution because the water merely passes through the pump.

If the high court adopts the tribe's view of the law, they say in their brief, it will create "substantial regulatory burdens to hundreds of thousands of state and local water control facilities."