Friday, June 5, 2009

Lake Okeechobee, "unitary waters theory", and how the hip bone is connected to the ankle bone

This is a decision issued yesterday, June 5, 2009, that affects all in Florida and it's very important to know about it. In an extremely well written and well reasoned opinion, the Eleventh Circuit Court of Appeals has issued an opinion with devastating impact on the Florida's Lake Okeechobee and the Florida Everglades. In South Florida Water Management District v. Friends of the Everglades, Slip Op. No. 07-13829 (11th Cir. June 4, 2009), the appeal turned on whether the transfer of a pollutant from one navigable body of water (the extremely polluted canals, from industrial runoff, connected to Lake Okeechobee) to another (Lake Okeechobee) is a “discharge of a pollutant” within the meaning of the Clean Water Act, 33 U.S.C. § 1362(12). The Eleventh Circuit concluded that it was not a "discharge of a pollutant" under the Clean Water Act, because the pollutant was already in a connected body of water and, therefore, a National Pollution Discharge Elimination System permit was not required. 33 U.S.C. §§ 1311(a); 1342(a). The Eleventh Circuit looked to the Act's definition of “discharge of a pollutant,” concluded the meaning of that definition is itself was disputed and that, during the course of this litigation, the Environmental Protection Agency (then under the Bush administration) adopted a regulation addressing this specific matter. That regulation adopted a "unitary waters theory" that all waters are, in essence, connected and, therefore, the movement of a polluted water from one river or canal to a another river or, in this case, to a lake, was not a "discharge of pollutant" because they were connected and therefore "unitary." Until the EPA had adopted that regulation in 2008, virtually ever appellate court in the country had rejected that theory. Disposing of a preliminary Eleventh Amendment question, the Eleventh Circuit decided that 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). The upshot of this decision is that, because of Chevron, wherein the Supreme Court decided we owe agency's deference on their interpretations of laws they are charged with enforcing, the EPA regulation will probably be given great deference and what is irrefutably the discharge of pollutants will continue until the regulation is rescinded or Congress overrides the regulation. In fact, the Eleventh Circuit says as much in the last paragraph of their opinion, almost inviting the EPA and Congress to do something about this horribly unscientific regulation.

To read the opinion, go to

The Law Lady. For more information, click here, where you can request to be placed on our Recent Decisions of Interest mailings.

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