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Exception to EPA Water-Transfer Rule Holds Fast

ATLANTA (CN) - The 11th Circuit refused to review a rule that exempts transfers of U.S. waters from Clean Water Act permit requirements.

In 2002, Friends of the Everglades and one other environmental group filed a federal complaint against the South Florida Water Management District over its water transfers from polluted canals in the Everglades agricultural area into Lake Okeechobee. The groups argued that the water transfers introduced pollutants into the lake, and thus were subject to the requirements for a permit.

But the water district countered that its transfers did not alter the existing level of pollutants in U.S. waters, and so they did not require a permit.

Though a federal judge agreed with the environmental groups that a permit was necessary, the EPA created a permanent exemption from permits for pollutants discharged from water transfers, except where the transfer itself introduced new pollutants to the water being transferred.

Friends of the Everglades, several other environmental organizations, nine states, a Canadian province and the Miccosukee Tribe challenged the new rule in the Southern District of New York and the Southern District of Florida.

Before the Florida court could rule on the consolidated actions, the plaintiffs asked the 11th Circuit to review their petitions regarding the water-transfer rule, in response to the Environmental Protection Agency's argument that federal appeals courts alone had jurisdiction over the exemption.

A three-judge panel concluded, however, that the 11th Circuit lacked jurisdiction to hear the petitions.

Concluding that the water-transfer rule was "a reasonable interpretation of an ambiguous provision of the Clean Water Act," the court had lifted the injunction against the water district in 2009.

The Clean Water Act gives the EPA authority to issue permits to control the discharge of pollutants in navigable waters, but also allows it to grant exemptions from the requirements for a permit.

In addressing the plaintiffs' request for review, the panel explained that it had no jurisdiction to review the agency's rule, which is not "an effluent limitation" that restricts pollutants, but an exemption that allows the discharge of pollutants from water transfers.

"The water-transfer rule imposes no restrictions on entities engaged in water transfers," Judge William Pryor wrote for a three-member panel. "The effect is the opposite: the rule exempts governments and private parties engaged in water transfers from the procedural and substantive requirements of the [EPA] administrator's permit program."

What's more, the water-transfer rule neither issues nor denies a permit, but instead permanently exempts a category of activities from permits, the ruling states.

The judges declined to exercise hypothetical jurisdiction, noting that the Supreme Court cautioned federal courts against deciding a case on the merits where they lack statutory and constitutional jurisdiction.

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