Friends of the Everglades v. So. Fla. Water Mgmt.

Jun 4: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13829. According to the Appeals Court, the appeal turns on whether the transfer of a pollutant from one navigable body of water to another is a “discharge of a pollutant” within the meaning of the Clean Water Act (CWA). If it is, a National Pollution Discharge Elimination System (NPDES) permit is required. CWA defines “discharge of a pollutant,” but the meaning of that definition is itself disputed. During the course of the litigation, U.S. EPA adopted a regulation addressing the specific matter. The Appeals Court said, "The issue we face, after we dispose of a preliminary Eleventh Amendment question, is whether we owe that EPA regulation deference under Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).

In its decision, the Appeals Court reasoned, "Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting 'any addition of any marbles to buckets by any person.' A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover 'add[ed] any marbles to buckets'? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the
Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.

"Like the marbles rule, the Clean Water Act’s language about 'any addition of any pollutant to navigable waters from any point source,' 33 U.S.C. § 3362(12), is ambiguous. The EPA’s regulation adopting the unitary waters theory is a reasonable, and therefore permissible, construction of the language. Unless and until the EPA rescinds or Congress overrides the regulation, we must give effect to it." The Appeals Court ruled, "In the defendants’ appeal, we reverse the district court’s judgment that the operation of the S-2, S-3, and S-4 pumps without NPDES permits violates the Clean Water Act. We dismiss as moot the plaintiffs’ cross-appeal from the dismissal of the Water District on Eleventh Amendment grounds."

The public interest law firm, Earthjustice issued a release on the opinion saying, "This is the exact opposite interpretation than that reached by the Second Circuit Court of Appeal only two years ago. Further consideration by the whole appeals court panel seems appropriate." Earthjustice said it plans to file for an en banc rehearing, which would be heard by a full panel of judges.

Access the complete opinion (click here).