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B. LEGAL 1. Water Newsletter The legal staff continues to inform the Commissioners, their advisers and other interested parties about developments in the courts, Congress and certain Federal agencies through the Water Newsletter. Current information can be found in the newsletter. In addition, the legal staff has prepared legal memoranda on matters needing more detailed treatment. 2. Court Case Action has been taken in the following case of importance to the Upper Colorado River Basin States: South Florida Water Management District v. Miccousukee Tribe of Indians, 541 U.S. _,158 L.Ed.2d 264,124 S.Ct. _ (2004). In this case, petitioner South Florida Water Management District operates a pumping facility that transfers water from a canal into a reservoir or impoundment area a short distance away. Respondents Miccosukee Tribe of Indians and the Friends of the Everglades brought a citizen suit under the Clean Water Act (CWA) contending that the pumping facility is required to obtain a discharge permit under the National Pollutant Discharge Elimination System (NPDES). The district court agreed with respondents and granted their motion for summary judgment. A panel of the United States Court of Appeals for the Eleventh Circuit affirmed, basing its holding (as did the district court) on the determination that the canal and reservoir are two distinct water bodies. The Supreme Court vacates the decision of the Eleventh Circuit and remands the case to the district court for further development of the factual record as to the accuracy of that determination. The Court finds that petitioner and the Federal government, as amicus curia, raised three separate arguments, any of which would, if accepted, lead to the conclusion that the pumping station does not require a point source discharge permit under the NPDES program. The Court rejects petitioner's argument that an NPDES permit is not required for the pumping station because it does not "add" pollutants to the water, holding that under the definitions in the CWA, the pumping station is clearly a "point source" that need only convey the pollutant to "navigable waters" without generating a pollutant itself. The government contended that all water bodies that fall within the CWA's definition of "navigable waters" should be viewed unitarily for purposes of NPDES permitting requirements, so such permits are not required when water from a navigable water body is discharged, unaltered, into another navigable water body. Without accepting this legal argument, the Court states that because it finds it necessary to vacate the judgment of the Eleventh Circuit with respect to a third argument of petitioner, the .unitary waters" argument will be open for the parties on remand. Petitioner contends that the canal from which the waters come that the pumping station pumps into an impoundment area are not distinct water bodies at all but are instead two hydrologically indistinguishable parts of a single water body. The Court holds that further development of the record is necessary to resolve the dispute over the validity of the distinction between the canal and impoundment area, stating that after reviewing the full record, the district court might conclude that the canal and impoundment area are not meaningfully distinct water bodies, in which case the pumping station would not need an NPDES permit. 29 j I