Polluted Water Can Be Pumped Into Fla. Lake

     (CN) – Transferring polluted water from one body of water to another without a permit does not violate the Clean Water Act in light of a new Environmental Protection Agency regulation, the 11th Circuit ruled. The ruling allows a water district to pump agricultural runoff into Lake Okeechobee in southern Florida without a permit.

     Friends of the Everglades, the Florida Wildlife Federation, Fishermen Against Destruction of the Environment and the Miccosukee Tribe filed suit against the South Florida Water Management District in 2002 for pumping agricultural runoff into Lake Okeechobee.
     Judge Carnes said the runoff contained a “loathsome concoction of chemical contaminants,” including nitrogen, phosphorous and unionized ammonia, that were then added to the lake.
     After a two-month bench trial, the district court granted the water district immunity under the 11th Amendment and dismissed it from the case, but declined to dismiss its executive director. The court concluded that operating the pumps stations without permits violated the Clean Water Act and issued an injunction requiring the executive director to apply for a permit.
     The defendants asked the Atlanta-based federal appeals court to overturn the injunction, while the plaintiffs appealed the water district’s dismissal.
     The three-judge panel dismissed as moot the attempt to revive claims against the water district. The plaintiffs can obtain the same remedies from enjoining the executive director, the judges ruled.
     The term “navigable waters” in the Clean Water Act’s phrase, “any addition of any pollutant to navigable waters from any point source,” is ambiguous, the court determined. The term can either refer to all the waters in the U.S. collectively, under the “unitary waters” theory, or individually. The use of the unitary waters theory to say that pollutants can be moved from one body of water to another without being regulated has been rejected in every appeals case, the 11th Circuit noted, but a new EPA regulation changed that.
     The June 2008 statute states that water transfers are not subject to permitting, defining transfer as connecting waters without “intervening industrial, municipal or commercial use.” The way the EPA adopted the unitary water theory for its regulation is not arbitrary or capricious, the appellate court determined, so the new regulation rules the case.
     Friends of the Everglades argued that the unitary water theory does not match the goals of the Clean Water Act, citing “horrible hypotheticals” of the regulation’s implementation, such as pumping the most polluted water in the county into the most pristine lake.
     “[W]e cannot say that either side is unreasonable,” Carnes wrote, but in the face of the law’s ambiguity, the “EPA’s regulation adopting unitary waters theory is a reasonable, and therefore permissible, construction of the language.”

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