SECTION NEWS

During the Section’s Spring Meeting in New Orleans, Professor John H. Minan, who is on the law faculty of the University of San Diego, delivered a paper at the “Environmental Hot Topics” session on South Florida Water Management District v. Miccosukee Tribe of Indians,124 S. Ct. 1537 (2004). The case was decided by the U.S. Supreme Court a few days before the Spring Meeting , so discussion was both important and timely.

The Miccosukee case is the most recent in a series of Supreme Court decisions dealing with the proper statutory construction of the federal Clean Water Act (CWA), 33 U.S.C. §§ 1251–1387. In Miccosukee, the Court held that a “point source” does not have to be the originating source of the pollution in order to be regulated by the National Pollutant Discharge Elimination System (NPDES) permit program. This holding is a sensible application of the “point source” requirement of the CWA.

But this aspect of the case was not the reason why the case attracted a large number of amici briefs and broad public interest.

Under the CWA, a transfer of water containing pollutants from one body of water to another distinct body of water constitutes the “addition” of a pollutant subject to NPDES permit regulation. In Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir. 2001), the Second Circuit held that water transfers between reservoirs could trigger the application of the CWA. The potential application of NPDES permits to water transfers was an issue that drew widespread public interest.

The Supreme Court did not decide this important question. It reasoned that the record as to whether distinct water bodies were involved in the Miccosukee case was not clear. Thus, the case was remanded. Whether the NPDES permit requirement of the CWA applies to water transfers is a question of national importance. It must ultimately be answered by either Congress or the U.S. Supreme Court. Stay tuned.

Section Recognized for CLE Diversity

During the Section Officers Conference CLE meeting in Chicago on September 11, the Section was recognized for promoting diversity among CLE faculty in its programming. As the featured speaker, ABA President Robert Grey, Jr., stressed the importance of CLE to the Association, and his presence attested to that fact. Section CLE Director, Dale Rubin, represented the Section at the extremely helpful and informative SOC CLE session.

Meeting participants concluded that the most effective way to conduct CLE is through teleconferencing. The ABA Center for CLE works with over twenty-five entities to advise and produce tailored series, programming, and products. The CLE Center will assist sections in planning and conducting effective CLE teleconferencing sessions. Section representatives who had used teleconferencing repeatedly alluded to its risk-free, profit-making aspects. Attendees thought that subjects addressed by the State and Local Government Law Section would be ideal for this method of delivering CLE.

Section members with ideas for topics suitable for coverage in a teleconference, should contact Dale Rubin at dale. rubin@famu.edu.

Healthcare Summit a Unique Opportunity This December

Please be sure to join the ABA Health Law Section for the 2nd Annual Washington Healthcare Summit, December 6–7, 2004, at the Ritz-Carlton, Pentagon City. Co-sponsored by the ABA Section of State and Local Government Law, the summit was a huge success in its inaugural year because it provided a unique opportunity for attendees to hear from and interact with noteworthy government officials and experienced practitioners in the healthcare arena. Once again, the prime setting of the Washington, D.C. area provides a ready opportunity to hear from key government officials, and to interact with the many others who attend. Experienced private practitioners and in-house counsel to national healthcare organizations add much to the substance of the program. Attendees will receive important insights from such senior government officials as Senator Max Baucus as they receive the latest updates and practical insights on a broad range of the most important current health law topics, from the most recent developments in Congress to implementation of key healthcare agency initiatives emerging out of CMS, FTC, IRS, HHS, FDA, and many others. Sessions will include implementation of the groundbreaking Medicare Modernization Act and will also cover subjects such as fraud and abuse, antitrust developments in the healthcare industry, healthcare emergency preparedness, and the National Health Information Infrastructure. Participants will learn how continued developments in 2004 and 2005 practically affect compliance with state and federal law and provide guidance on these issues for healthcare counsel. For more information, contact the Health Law Section at 312/988–5532, or visit the Section website at http://www.abanet.org/health