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June 11, 2009 |
Eleventh Circuit Court of Appeals Upholds Bush-Era Rule that Allows Water Transfers Without an NPDES Permit On June 4, 2009, the U.S. Court of Appeals for the 11th Circuit held that the U.S. Environmental Protection Agency's (EPA's) 2008 rule exempting water transfers from National Pollutant Discharge Elimination System (NPDES) permitting requirements is reasonable and should be given deference. Friends of the Everglades, et al. v. South Florida Water Management District, et al., Case No. 02-80309-CV-CMA. The decision is the latest in a long-running dispute that had been the subject of several prior federal decisions, including a 2004 U.S. Supreme Court decision. Like the prior decisions, this case concerned the ability of the defendants to pump water from one relatively polluted water body, agricultural canals dug by the U.S. Army Corps, to another, the less polluted Lake Okeechobee. The plaintiffs contended that such water transfers represented the "addition" of a pollutant to Lake Okeechobee and, as a result, were prohibited without an NPDES permit by Section 402 of the Clean Water Act (CWA). EPA intervened in the case on the side of the defendants. EPA has long taken the position that, as a whole, the language and regulatory scheme of the CWA does not require permits for water transfers because such transfers do not involve the "addition" of a pollutant to navigable waters. Rather, EPA has advocated the "unitary waters theory" under which the collective navigable waters of the United States are likened to a pot of soup. The theory holds that (a) nothing new is added to the pot when a ladle of soup is removed from the pot and then poured back and (b) in the absence of an addition, no NPDES permit is needed. Prior case law has generally rejected the unitary waters theory. As an example, the district court in this proceeding decided that the transfer constituted an "addition" requiring an NPDES permit. The cases rejecting the unitary waters theory, however, came before EPA's 2008 rule expressly exempting certain water transfers from NPDES requirements (see 40 C.F.R. ý 122.3(i)). The central issue before the 11th Circuit was whether EPA's new water transfer rule represented a reasonable interpretation of the CWA and should be afforded judicial deference. The plaintiffs asserted the water transfer rule was unreasonable and not entitled to deference because, in their view, the CWA clearly prohibits any addition of pollutants to any navigable waters, and that the lack of ambiguity trumps the unitary waters theory embodied by EPA's rule. The court disagreed, holding that this provision of the CWA is ambiguous and that EPA's rule sets forth a reasonable interpretation of the CWA, which merits deference. For questions regarding this Environmental Update, please contact any of the attorneys in Schiff Hardin's Environmental Group. RECENT ENVIRONMENTAL PUBLICATIONS
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