NEW YORK — The U.S. Second Circuit Court of Appeals recently ruled in favor of the United States Environmental Protection Agency (EPA) in a case that dealt with the application of the Clean Water Act, a move officials in South Florida are praising.
The decision was the culmination of a legal process that included combining of a number of similar cases in play across the country.
At issue was whether permits would be needed in order to move water. The issue was brought up over concerns that water from a polluted system could be transferred to one that was not polluted.
Tania Galloni, a lawyer with Earthjustice, said in that situation, there is “nobody to oversee that. There's no permitting regulation."
Since 2008, the EPA has maintained that water transfers did not need to be permitted or regulated based on National Pollutant Discharge Elimination System, which had come into existence with the Clean Water Act. The EPA has said that waterways are covered by the ʺunitary watersʺ theory, which states that all water systems in the U.S., such as lakes, ponds, rivers and streams, are interconnected naturally.
The court ruled 2-1 in the case, with Judge Robert Sack and Judge Susan Carney voting for the EPA, and Judge Denny Chin dissenting. The majority in the case believed that the Clean Water Act did not address water transfers so it was not applicable to be used in this instance by the plaintiffs.
In his dissenting opinion, Chin takes aim at, among other points the majority makes, the ʺunitary watersʺ theory.
“Prior decisions of this Court and the Supreme Court make clear that the unitary waters theory is inconsistent with the plain and ordinary meaning of the text of the Act and its purpose," he wrote.
The appeals court ruling reversed a lower court ruling that had stated the precedent cited by the defendants — Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) — was not a valid defense because it would create an “unreasonable interpretation” of the Clean Water Act.
South Florida officials are applauding the court's decision. The South Florida Water Management District (SFWMD) thinks that the decision could save Florida taxpayers billions of dollars by avoiding what SFWMD Governing Board Chair Dan O’Keefe describes as a “complicated, litigious and costly endeavor."
Environmental groups in South Florida and across the area fear that the decision has the potential to create an environmental concern in the Everglades.
"You could have any kind of pollution transferred from one body of water to another body of water,” Galloni said.
To backup their claims, these groups point to issues like the one that occurred in Lake Okeechobee last summer when runoff, which had fertilizer in it, created pockets of blue-green algae.
A SFWMD spokesperon, Randy Smith, thinks this is a case of seeing smoke where there is no fire.
"Any assumption that backpumping is going to be increased because of the court ruling is absurd," he said.