SOUTH FLORIDA WATER MANAGEMENT DISTRICT v. MICCOSUKEE TRIBE OF INDIANS et al.

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Syllabus
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
v. MICCOSUKEE TRIBE OF INDIANS et al.
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 it 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 re-
quires an NPDES permit because it moves phosphorus-laden water
from C–11 into WCA–3, but the District contends that S–9’s operation

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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 determi-
nation 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 dis-
tinct water bodies. Pp. 104–112.
(a) Each of three arguments advanced by the District and the Federal
Government as amicus would, if accepted, lead to the conclusion that
S–9 does not require an NPDES permit. P. 104.
(b) The Court rejects the District’s initial argument that the NPDES
program covers a point source only when pollutants originate from that
source and not when pollutants originating elsewhere merely pass
through the point source. The definition of a point source as a “convey-
ance,” § 1362(14), makes plain that the point source need only con-
vey the pollutant to navigable waters. The Act’s examples of point
sources—pipes, ditches, tunnels, and conduits—are objects that trans-
port, but do not generate, pollutants. And one of the Act’s primary
goals was to impose NPDES permitting requirements on municipal
wastewater treatment plants, which treat and discharge pollutants
added to water by others. Pp. 104–105.
(c) The Government contends that all water bodies that are navigable
waters under the Act should be viewed unitarily for purposes of
NPDES permitting. Because the Act requires NPDES permits only
when a pollutant is added to navigable waters, the Government con-
tends that such permits are not required when water from one navigable
body is discharged, unaltered, into another navigable body. Despite the
relevance of this “unitary waters” approach, neither the District nor
the Government raised it before the Eleventh Circuit or in their briefs
respecting certiorari, and this Court is unaware of any case that has
examined the argument in its present form. Thus, the Court declines
to resolve the argument here. However, because the judgment must
be vacated in any event, the unitary waters argument will be open to
the parties on remand. Pp. 105–109.
(d) The District and the Government believe that the C–11 canal and
WCA–3 impoundment area are not distinct water bodies, but are two
hydrologically indistinguishable parts of a single water body. The
Tribe agrees that, if this is so, pumping water from one into the other
cannot constitute an “addition” of pollutants within the meaning of the
Act, but it disputes the District’s factual premise that C–11 and WCA–3
are one. The parties also disagree about how the relationship between
S–9 and WCA–3 should be assessed. This Court does not decide here
whether the District Court’s test is adequate for determining whether
C–11 and WCA–3 are distinct, because that court applied its test prema-

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turely. Summary judgment is appropriate only where there is no genu-
ine issue of material fact, but some factual issues remain unresolved
here. The District Court correctly characterized the flow through S–9
as nonnatural, and it appears that if S–9 were shut down, the water in
the C–11 canal might for a brief time flow east, rather than west. But
the record also suggests that if S–9 were shut down, the area drained
by C–11 would flood, which might mean C–11 would no longer be a
distinct body of navigable water, but instead part of a larger water body
extending over WCA–3 and the C–11 basin. It also might call into
question the Eleventh Circuit’s conclusion that S–9 is the cause in fact
of phosphorous addition to WCA–3. Nothing in the record suggests
that the District Court considered these issues when it granted sum-
mary judgment. If, after further development of the record, that court
concludes that C–11 and WCA–3 are not meaningfully distinct water
bodies, S–9 will not need an NPDES permit. Pp. 109–112.
280 F. 3d 1364, vacated and remanded.
O’Connor, J., delivered the opinion of the Court, Parts I and II–A of
which were unanimous, and Parts II–B and II–C of which were joined by
Rehnquist, C. J., and Stevens, Kennedy, Souter, Thomas, Ginsburg,
and Breyer, JJ. Scalia, J., filed an opinion concurring in part and dis-
senting in part, post, p. 112.
Timothy S. Bishop argued the cause for petitioner. With
him on the briefs were Sheryl Grimm Wood and James E.
Nutt.
Jeffrey P. Minear argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Olson, Assistant Attorney General
Sansonetti, Deputy Solicitor General Hungar, Deputy As-
sistant Attorney General Clark, James C. Kilbourne, Ellen
Durkee, and Sylvia Quast.
Dexter W. Lehtinen argued the cause for respondents.
With him on the brief for respondent Miccosukee Tribe of
Indians were Juan M. Vargas, Claudio Riedi, Sonia Esco-
bio O’Donnell, Richard J. Ovelmen, and Dione` C. Carroll.
John E. Childe filed a brief for respondent Friends of the
Everglades.*
*Briefs of amici curiae urging reversal were filed for the State of Colo-
rado et al. by Ken Salazar, Attorney General of Colorado, Alan J. Gilbert,
Solicitor General, Felicity Hannay, Deputy Attorney General, and An-

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Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
Petitioner South Florida Water Management District op-
erates a pumping facility that transfers water from a canal
thony S. Trumbly, Senior Assistant Attorney General, by Patricia A. Ma-
drid, Attorney General of New Mexico, Glenn R. Smith, Deputy Attorney
General, and Stephen R. Farris, Assistant Attorney General, and by the
Attorneys General for their respective States as follows: Mark J. Bennett
of Hawaii, Lawrence Wasden of Idaho, Jon Bruning of Nebraska, Brian
Sandoval of Nevada, Wayne Stenehjem of North Dakota, Lawrence E.
Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah,
and Patrick J. Crank of Wyoming; for Idaho Governor Dirk Kempthorne
by L. Michael Bogert; for the City of Weston, Florida, by Susan L. Trevar-
then and Nancy E. Stroud; for the City of New York et al. by Michael A.
Cardozo, Leonard J. Koerner, Kenneth A. Rubin, and Alexandra Dapolito
Dunn; for the Florida Fruit and Vegetable Association et al. by Terry
Cole, John J. Rademacher, and John W. Costigan; for the Lake Worth
Drainage District et al. by Kenneth G. Spillias and Michelle Diffenderfer;
for the National Association of Home Builders by Virginia S. Albrecht,
Andrew J. Turner, Duane J. Desiderio, and Thomas Jon Ward; for the
National Hydropower Association by Sam Kalen and Michael A. Swiger;
for the National League of Cities et al. by Richard Ruda and James I.
Crowley; for the National Water Resources Association et al. by Robert V.
Trout, Peggy E. Montan˜ o, Jeffrey Kightlinger, Gregory K. Wilkinson,
Guy R. Martin, W. Patrick Schiffer, and Gregg A. Houtz; for the Nation-
wide Public Projects Coalition et al. by Lawrence R. Liebesman; for the
Pacific Legal Foundation by Robin L. Rivett and Frank A. Shepherd; and
for the Utility Water Act Group by Kristy A. N. Bulleit.
Briefs of amici curiae urging affirmance were filed for the State of New
York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J.
Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor Gen-
eral, Robert H. Easton, Assistant Solicitor General, Peter H. Lehner, Chief
Assistant Attorney General, and James M. Tierney, Assistant Attorney
General, and by the Attorneys General for their respective States as fol-
lows: Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Al-
bert B. Chandler III of Kentucky, G. Steven Rowe of Maine, Thomas F.
Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah W. (Jay)
Nixon of Missouri, Peter C. Harvey of New Jersey, Roy Cooper of North
Carolina, W. A. Drew Edmondson of Oklahoma, William H. Sorrell of
Vermont, and Christine O. Gregoire of Washington; for the Commonwealth
of Pennsylvania Department of Environmental Protection by Richard P.
Mather, Sr., Leslie Anne Miller, Peter G. Glenn, and K. Scott Roy; for the

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into a reservoir a short distance away. Respondents Micco-
sukee Tribe of Indians and the Friends of the Everglades
brought a citizen suit under the Clean Water Act contending
that the pumping facility is required to obtain a discharge
permit under the National Pollutant Discharge Elimination
System. The District Court agreed and granted summary
judgment to respondents. A panel of the United States
Court of Appeals for the Eleventh Circuit affirmed. Both
the District Court and the Eleventh Circuit rested their
holdings on the predicate determination that the canal and
reservoir are two distinct water bodies. For the reasons
explained below, we vacate and remand for further devel-
opment of the factual record as to the accuracy of that
determination.
I
A
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 and
ground water flowed south in a uniform and unchanneled
sheet. Starting in the early 1900’s, however, the State
began to build canals to drain the wetlands and make them
suitable for cultivation. These canals proved to be a source
Association of State Wetland Managers et al. by Patrick A. Parenteau
and Julia LeMense Huff; for the Coalition of Greater Minnesota Cities
et al. by Douglas L. Skor; for the Florida Wildlife Federation et al. by
David G. Guest and Monica K. Reimer; for the National Tribal Environ-
mental Council et al. by Tracy A. Labin, Robert T. Anderson, and William
H. Rodgers, Jr.; for the National Wildlife Federation et al. by James Mur-
phy and Howard I. Fox; for the Tongue & Yellowstone River Irrigation
District et al. by Jack R. Tuholske and Elizabeth A. Brennan; for Trout
Unlimited, Inc., et al. by Karl S. Coplan; and for Former Administrator of
the United States Environmental Protection Agency Carol M. Browner
et al. by Richard J. Lazarus.

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of trouble; they lowered the water table, allowing saltwater
to intrude upon coastal wells, and they proved incapable of
controlling flooding. Congress established the Project in
1948 to address these problems. It gave the United States
Army Corps of Engineers the task of constructing a compre-
hensive network of levees, water storage areas, pumps, and
canal improvements that would serve several simultaneous
purposes, including flood protection, water conservation, and
drainage. These improvements fundamentally altered the
hydrology of the Everglades, changing the natural sheet flow
of ground and surface water. The local sponsor and day-to-
day operator of the Project is the South Florida Water Man-
agement District (District).
Five discrete elements of the Project are at issue in this
case. One is a canal called “C–11.” C–11 collects ground
water and rainwater from a 104-square-mile area in south
central Broward County. App. 110. The area drained by
C–11 includes urban, agricultural, and residential develop-
ment, and is home to 136,000 people. At the western termi-
nus 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 the Project we consider here. WCA–3 is
the largest of several “water conservation areas” that are
remnants of the original South Florida Everglades. The
District impounds water in these areas to conserve fresh-
water that might otherwise flow directly to the ocean, and
to preserve wetlands habitat. Id., at 112.
Using pump stations like S–9, the District maintains the
water table in WCA–3 at a level significantly higher than
that in the developed lands drained by the C–11 canal to the
east. Absent human intervention, that water would simply
flow back east, where it would rejoin the waters of the canal

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and flood the populated areas of the C–11 basin. That re-
turn flow 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 final two elements of the Proj-
ect at issue here. The combined effect of L–33 and L–37,
C–11, and S–9 is artificially to separate the C–11 basin from
WCA–3; left to nature, the two areas would be a single wet-
land covered in an undifferentiated body of surface and
ground water flowing slowly southward.
B
As the above description illustrates, the Project has
wrought large-scale hydrologic and environmental change in
South Florida, some deliberate and some accidental. Its
most obvious environmental impact has been the conversion
of what were once wetlands into areas suitable for human
use. But the Project also has affected those areas that
remain wetland ecosystems.
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 runoff or indirectly as ground
water, that rainwater absorbs contaminants produced by
human activities. The water in C–11 therefore differs
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 stimu-
lates the growth of algae and plants foreign to the Ever-
glades ecosystem.
The phosphorous-related impacts of the Project are well
known and have received a great deal of attention from state
and federal authorities for more than 20 years. A number

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of initiatives are currently under way to reduce these im-
pacts and thereby restore the ecological integrity of the Ev-
erglades. Respondents Miccosukee Tribe of Indians and the
Friends of the Everglades (hereinafter simply Tribe), im-
patient with the pace of this progress, brought this Clean
Water Act suit in the United States District Court for the
Southern District of Florida. They sought, among other
things, to enjoin the operation of S–9 and, in turn, the con-
veyance of water from C–11 into WCA–3.
C
Congress enacted the Clean Water Act (Act) in 1972. Its
stated objective was “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.”
86 Stat. 816, 33 U. S. C. § 1251. To serve those ends, the Act
prohibits “the discharge of any pollutant by any person” un-
less done in compliance with some provision of the Act.
§ 1311(a). The provision relevant to this case, § 1342, estab-
lishes the National Pollutant Discharge Elimination System,
or NPDES. Generally speaking, the NPDES requires dis-
chargers to obtain permits that place limits on the type and
quantity of pollutants that can be released into the Nation’s
waters. The Act defines the phrase “ ‘discharge of a pol-
lutant’ ” to mean “any addition of any pollutant to naviga-
ble waters from any point source.” § 1362(12). A “ ‘point
source,’ ” in turn, is defined as “any discernible, confined and
discrete conveyance,” such as a pipe, ditch, channel, or tun-
nel, “from which pollutants are or may be discharged.”
§ 1362(14).
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 Dis-
trict does not dispute that phosphorous is a pollutant, or that
C–11 and WCA–3 are “navigable waters” within the mean-
ing of the Act. The question, it contends, is whether the

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operation of the S–9 pump constitutes the “discharge of [a]
pollutant” within the meaning of the Act.
The parties filed cross-motions for summary judgment on
the issue of whether S–9 requires an NPDES permit. The
District Court granted the Tribe’s motion, reasoning as
follows:
“In this case an addition of pollutants exists because
undisputedly water containing pollutants is being dis-
charged through S–9 from C–11 waters into the Ever-
glades, both of which are separate bodies of United
States water with . . . different quality levels. They are
two separate bodies of water because the transfer of
water or its contents from C–11 into the Everglades
would not occur naturally.” App. to Pet. for Cert.
28a–29a.
The Court of Appeals affirmed. It reasoned first that “in
determining whether pollutants are added to navigable wa-
ters for purposes of the [Act], the receiving body of water is
the relevant body of navigable water.” 280 F. 3d 1364, 1368
(CA11 2002). After concluding that pollutants were indeed
being added to WCA–3, the court then asked whether that
addition of pollutants was from a “point source,” so as to
trigger the NPDES permitting requirement. To answer
that question, it explained:
“[F]or an addition of pollutants to be from a point
source, the relevant inquiry is whether—but for the
point source—the pollutants would have been added to
the receiving body of water. We, therefore, conclude
that an addition from a point source occurs if a point
source is the cause-in-fact of the release of pollutants
into navigable waters.
“When a point source changes the natural flow of a
body of water which contains pollutants and causes that
water to flow into another distinct body of navigable
water into which it would not have otherwise flowed,

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that point source is the cause-in-fact of the discharge of
pollutants.” Ibid. (footnote omitted).
Because it believed that the water in the C–11 canal would
not flow into WCA–3 without the operation of the S–9 pump
station, the Court of Appeals concluded that S–9 was the
cause-in-fact of the addition of pollutants to WCA–3. It ac-
cordingly affirmed the District Court’s grant of summary
judgment, and held that the S–9 pump station requires
an NPDES permit. We granted certiorari. 539 U. S. 957
(2003).
II
The District and the Federal Government, as amicus, ad-
vance three separate arguments, any of which would, if ac-
cepted, 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 ap-
plication 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.
A
In its opening brief on the merits, the District argued that
the NPDES program applies to a point source “only when a
pollutant originates from the point source,” and not when
pollutants originating elsewhere merely pass through the
point source. Brief for Petitioner 20. This argument mir-
rors the question presented in the District’s petition for cer-
tiorari: “Whether the pumping of water by a state water
management agency that adds nothing to the water being
pumped constitutes an ‘addition’ of a pollutant ‘from’ a point
source triggering the need for a National Pollutant Dis-
charge Elimination System permit under the Clean Water
Act.” Pet. for Cert. i. Although the Government rejects

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the District’s legal position, Brief for United States as Ami-
cus Curiae 21, it and the Tribe agree with the factual propo-
sition that S–9 does not itself add any pollutants to the water
it conveys into WCA–3.
This initial argument is untenable, and even the Dis-
trict appears to have abandoned it in its reply brief. Reply
Brief for Petitioner 2. A point source is, by definition, a
“discernible, confined, and discrete conveyance.” § 1362(14)
(emphasis added). That definition makes plain that a point
source need not be the original source of the pollutant; it
need only convey the pollutant to “navigable waters,” which
are, in turn, defined as “the waters of the United States.”
§ 1362(7). Tellingly, the examples of “point sources” listed
by the Act include pipes, ditches, tunnels, and conduits, ob-
jects that do not themselves generate pollutants but merely
transport them. § 1362(14). In addition, one of the Act’s
primary goals was to impose NPDES permitting require-
ments on municipal wastewater treatment plants. See, e. g.,
§ 1311(b)(1)(B) (establishing a compliance schedule for pub-
licly owned treatment works). But under the District’s in-
terpretation of the Act, the NPDES program would not
cover such plants, because they treat and discharge pollut-
ants added to water by others. We therefore reject the Dis-
trict’s proposed reading of the definition of “ ‘discharge of a
pollutant’ ” contained in § 1362(12). That definition includes
within its reach point sources that do not themselves gener-
ate pollutants.
B
Having answered the precise question on which we
granted certiorari, we turn to a second argument, advanced
primarily by the Government as amicus curiae in merits
briefing and at oral argument. For purposes of determining
whether there has been “any addition of any pollutant to
navigable waters from any point source,” ibid., the Govern-
ment contends that all the water bodies that fall within the
Act’s definition of “ ‘navigable waters’ ” (that is, all “the

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waters of the United States, including the territorial seas,”
§ 1362(7)) should be viewed unitarily for purposes of NPDES
permitting requirements. Because the Act requires
NPDES permits only when there is an addition of a pollutant
“to navigable 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 the two would not otherwise mix. See Catskill
Mountains Chapter of Trout Unlimited, Inc. v. New York,
273 F. 3d 481, 492 (CA2 2001); Dubois v. United States Dept.
of Agriculture, 102 F. 3d 1273 (CA1 1996). Under this “uni-
tary waters” approach, the S–9 pump station would not need
an NPDES permit.
1
The “unitary waters” argument focuses on the Act’s defi-
nition of a pollutant discharge as “any addition of any pollut-
ant to navigable waters from any point source.” § 1362(12).
The Government contends that the absence of the word
“any” prior to the phrase “navigable waters” in § 1362(12)
signals Congress’ understanding that NPDES permits would
not be required for pollution caused by the engineered trans-
fer of one “navigable water” into another. It argues that
Congress intended that such pollution instead would be ad-
dressed through local nonpoint source pollution programs.
Section 1314(f)(2)(F), which concerns nonpoint sources, di-
rects the Environmental Protection Agency (EPA) to give
States information on the evaluation and control of “pollution
resulting from . . . changes in the movement, flow, or circula-
tion of any navigable waters or ground waters, including
changes caused by the construction of dams, levees, channels,
causeways, or flow diversion facilities.”
We note, however, that § 1314(f)(2)(F) does not explicitly
exempt nonpoint pollution sources from the NPDES pro-
gram if they also fall within the “point source” definition.

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And several NPDES provisions might be read to suggest
a view contrary to the unitary waters approach. For exam-
ple, under the Act, a State may set individualized ambi-
ent water quality standards by taking into consideration
“the designated uses of the navigable waters involved.” 33
U. S. C. § 1313(c)(2)(A). Those water quality standards, in
turn, directly affect local NPDES permits; if standard permit
conditions fail to achieve the water quality goals for a given
water body, the State must determine the total pollutant
load that the water body can sustain and then allocate that
load among the permit holders who discharge to the water
body. § 1313(d). This approach suggests that the Act pro-
tects individual water bodies as well as the “waters of the
United States” as a whole.
The Government also suggests that we adopt the “unitary
waters” approach out of deference to a longstanding EPA
view that the process of “transporting, impounding, and re-
leasing navigable waters” cannot constitute an “ ‘addition’ ”
of pollutants to “ ‘the waters of the United States.’ ” Brief
for United States as Amicus Curiae 16. But the Govern-
ment does not identify any administrative documents in
which EPA has espoused that position. Indeed, an amicus
brief filed by several former EPA officials argues that the
agency once reached the opposite conclusion. See Brief for
Former Administrator Carol M. Browner et al. as Amici
Curiae 17 (citing In re Riverside Irrigation Dist., 1975 WL
23864 (Ofc. Gen. Coun., June 27, 1975) (irrigation ditches
that discharge to navigable waters require NPDES permits
even if they themselves qualify as navigable waters)). The
“unitary waters” approach could also conflict with current
NPDES regulations. For example, 40 CFR § 122.45(g)(4)
(2003) allows an industrial water user to obtain “intake
credit” for pollutants present in water that it withdraws
from navigable waters. When the permit holder discharges
the water after use, it does not have to remove pollutants
that were in the water before it was withdrawn. There is a

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caveat, however: EPA extends such credit “only if the dis-
charger demonstrates that the intake water is drawn from
the same body of water into which the discharge is made.”
The NPDES program thus appears to address the movement
of pollutants among water bodies, at least at times.
Finally, the Government and numerous amici warn that
affirming the Court of Appeals in this case would have
significant practical consequences. If we read the Act to
require an NPDES permit for every engineered diversion of
one navigable water into another, thousands of new permits
might have to be issued, particularly by western States,
whose water supply networks often rely on engineered
transfers among various natural water bodies. See Brief for
Colorado et al. as Amici Curiae 2–4. Many of those diver-
sions might also require expensive treatment to meet water
quality criteria. It may be that construing the NPDES pro-
gram to cover such transfers would therefore raise the costs
of water distribution prohibitively, and violate Congress’
specific instruction that “the authority of each State to allo-
cate quantities of water within its jurisdiction shall not be
superseded, abrogated or otherwise impaired” by the Act.
§ 1251(g). On the other hand, it may be that such permitting
authority is necessary to protect water quality, and that the
States or EPA could control regulatory costs by issuing
general permits to point sources associated with water dis-
tribution programs. See 40 CFR §§ 122.28, 123.25 (2003).*
*An applicant for an individual NPDES permit must provide informa-
tion about, among other things, the point source itself, the nature of the
pollutants to be discharged, and any water treatment system that will
be used. General permits greatly reduce that administrative burden by
authorizing discharges from a category of point sources within a specified
geographic area. Once EPA or a state agency issues such a permit, cov-
ered entities, in some cases, need take no further action to achieve compli-
ance with the NPDES besides adhering to the permit conditions. See 40
CFR § 122.28(b)(2)(v) (2003).

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Indeed, that is the position of the one State that has inter-
preted the Act to cover interbasin water transfers. See
Brief for Pennsylvania Department of Environmental Pro-
tection as Amicus Curiae 11–18.
2
Because WCA–3 and C–11 are both “navigable waters,”
adopting the “unitary waters” approach would lead to the
conclusion that the District may operate S–9 without an
NPDES permit. But despite its relevance here, neither the
District nor the Government raised the unitary waters ap-
proach before the Court of Appeals or in their briefs respect-
ing the petition for certiorari. (The District adopted the
position as its own in its reply brief on the merits.) Indeed,
we are not aware of any reported case that examines the
unitary waters argument in precisely the form that the Gov-
ernment now presents it. As a result, we decline to resolve
it here. Because we find it necessary to vacate the judg-
ment of the Court of Appeals with respect to a third argu-
ment presented by the District, the unitary waters argument
will be open to the parties on remand.
C
In the courts below, as here, the District contended that
the C–11 canal and WCA–3 impoundment area are not dis-
tinct water bodies at all, but instead are two hydrologically
indistinguishable parts of a single water body. The Govern-
ment agrees with the District on this point, claiming that
because the C–11 canal and WCA–3 “share a unique, inti-
mately related, hydrological association,” they “can appropri-
ately be viewed, for purposes of Section 402 of the Clean
Water Act, as parts of a single body of water.” Brief for
United States in Opposition 13. 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. As the Second Cir-

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cuit put it in Trout Unlimited, “[i]f one takes a ladle of soup
from a pot, lifts it above the pot, and pours it back into the
pot, one has not ‘added’ soup or anything else to the pot.”
273 F. 3d, at 492. What the Tribe disputes is the accuracy
of the District’s factual premise; according to the Tribe, C–11
and WCA–3 are two pots of soup, not one.
The record does contain information supporting the Dis-
trict’s view of the facts. Although C–11 and WCA–3 are
divided from one another by the L–33 and L–37 levees, that
line appears to be an uncertain one. Because Everglades
soil is extremely porous, water flows easily between ground
and surface waters, so much so that “[g]round and surface
waters are essentially the same thing.” App. 111, 117.
C–11 and WCA–3, of course, share a common underlying
aquifer. Tr. of Oral Arg. 42. Moreover, the L–33 and L–37
levees continually leak, allowing water to escape from
WCA–3. This means not only that any boundary between
C–11 and WCA–3 is indistinct, but also that there is some
significant mingling of the two waters; the record reveals
that even without use of the S–9 pump station, water travels
as both seepage and ground water flow between the water
conservation area and the C–11 basin. App. 172; see also
id., at 37 (describing flow between C–11 and WCA–3 as
“cyclical”).
The parties also disagree about how the relationship be-
tween S–9 and WCA–3 should be assessed. At oral argu-
ment, counsel for the Tribe focused on the differing “biologi-
cal or ecosystem characteristics” of the respective waters,
Tr. of Oral Arg. 43; see also Brief for Respondent Miccosukee
Tribe of Indians 6–7; Brief for Respondent Friends of
the Everglades 18–22, while counsel for the District empha-
sizes the close hydrological connections between the two.
See, e. g., Brief for Petitioner 47. Despite these disputes,
the District Court granted summary judgment to the Tribe.
It applied a test that neither party defends; it determined

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that C–11 and WCA–3 are distinct “because the transfer of
water or its contents from C–11 into the Everglades would
not occur naturally.” App. to Pet. for Cert. 28a. The Court
of Appeals for the Eleventh Circuit endorsed this test. 280
F. 3d, at 1368.
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 ap-
plied its test prematurely. Summary judgment is appro-
priate only where there is no genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U. S. 317 (1986). The rec-
ord before us leads us to believe that some factual issues
remain unresolved. The District Court certainly was cor-
rect to characterize the flow through the S–9 pump station
as a nonnatural one, propelled as it is by diesel-fired 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 flow east, rather than west, as it now does. But
the effects 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 flood quite
quickly. See 280 F. 3d, at 1366 (“Without the operation
of the S–9 pump station, the populated western portion of
Broward County would flood within days”). That flooding
might mean that C–11 would no longer be a “distinct body
of navigable water,” id., at 1368, but part of a larger water
body extending over WCA–3 and the C–11 basin. It also
might call into question the Eleventh Circuit’s conclusion
that S–9 is the cause in fact of phosphorous addition to
WCA–3. Nothing in the record suggests that the District
Court considered these issues when it granted summary
judgment. Indeed, in ordering later emergency relief from
its own injunction against the operation of the S–9 pump
station, the court admitted that it had not previously under-
stood that shutting down S–9 would “ ‘literally ope[n] the
flood gates.’ ” Id., at 1371.

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Opinion of Scalia, J.
We find that further development of the record is neces-
sary to resolve the dispute over the validity of the distinction
between C–11 and WCA–3. After reviewing the full record,
it is possible that the District Court will conclude that C–11
and WCA–3 are not meaningfully distinct water bodies. If
it does so, then the S–9 pump station will not need an
NPDES permit. In addition, the Government’s broader
“unitary waters” argument is open to the District on remand.
Accordingly, the judgment of the United States Court of
Appeals for the Eleventh Circuit is vacated, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Justice Scalia, concurring in part and dissenting in part.
I join Parts I and II–A of the Court’s opinion, which hold
that a point source is not exempt from the National Pollutant
Discharge Elimination System permit requirement merely
because it does not itself add pollutants to the water it
pumps. I dissent, however, from its decision to vacate the
judgment below on another ground, Part II–C, ante, and to
invite consideration of yet another legal theory, Part II–B,
ante. Neither of those actions is taken in response to the
question presented. I would affirm the Court of Appeals’
disposition of the question presented without reaching
other issues.
Parts II–B and II–C are problematic for other reasons as
well. In Part II–B, the Court declines to resolve the Gov-
ernment’s unitary-waters argument on the ground that it
was not raised or decided below. See ante, at 109. In my
judgment, a fair reading of the opinion and briefs does not
support that contention. See, e. g., 280 F. 3d 1364, 1368, n. 5
(CA11 2002) (“We reject the Water District’s argument that
no addition of pollutants can occur unless pollutants are
added from the outside world insofar as the Water District
contends the outside world cannot include another body of

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navigable waters” (emphasis added)); Brief for Appellant in
No. 00–15703–CC (CA11), p. 10 (“The S–9 pump station
merely moves navigable waters from one side of the Levee
to another”). That the argument was not phrased in the
same terms or argued with the same clarity does not mean
it was not made. I see no point in directing the Court of
Appeals to consider an argument it has already rejected.
I also question the Court’s holding in Part II–C that sum-
mary judgment was precluded by the possibility that, if the
pumping station were shut down, flooding in the C–11 basin
might ultimately cause pollutants to flow from C–11 to
WCA–3. Ante, at 111. To my knowledge, that argument
has not previously been made. Petitioner argued that
WCA–3 and C–11 were historically part of the same ecosys-
tem and that they remain hydrologically related, see Brief
for Petitioner 46–49, but that is quite different from arguing
that, absent S–9, pollutants would flow from C–11 to WCA–3
(a journey that, at the moment, is uphill). Nothing in Celo-
tex Corp. v. Catrett, 477 U. S. 317 (1986), requires a district
court to speculate sua sponte about possibilities even the
parties have not contemplated. Cf. Fed. Rule Civ. Proc.
56(e) (opponent of summary judgment must “set forth spe-
cific facts showing that there is a genuine issue for trial”).
I would affirm the judgment below as to the question pre-
sented, leaving the Government’s unitary-waters theory to
be considered in another case.