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November 07, 2012
Court says it lacks CWA jurisdiction

A federal appeals court found that it did not have the jurisdiction to rule in a case involving an EPA action that exempted water transfers from the requirement to obtain a Clean Water Act (CWA) permit.  According to the U.S. Court of Appeals for the 11th Circuit, the Agency’s action involved neither approval nor denial of a permit.  As the 11th Circuit interprets the CWA, this means that the case legally belongs in the hands of the district court.  The ruling effectively upholds a decision by the district court that a water management district must obtain the subject permit.

Level of pollutants unaltered

The case goes back to 2002, when environmental groups sought an injunction in federal district court to force the South Florida Water Management District to obtain a CWA permit to transfer water from the polluted canals of the Everglades Agricultural Area into Lake Okeechobee.  The environmental groups argued that the water transfer introduced pollutants into the lake and was therefore a discharge subject to the requirement to obtain a permit. The water district countered that when it transferred pollutants from the canals to the lake, it did not alter the existing level of pollutants in United States waters.  For that reason, the activities did not fall within the definition of "discharge" that requires permitting, claimed the water district.

EPA exemption rule

Before the district court entered its opinion in the case, the EPA issued a notice of proposed rulemaking to create a permanent exemption from the permit program for pollutants discharged from water transfers.  The Agency stated in the proposal that if the action was made final, it would be reviewable only in the U.S. Court of Appeals.  The EPA subsequently issued a final rule in June 2008 that exempted discharges from a water transfer from the requirement to obtain the subject permit. 

Subsequently, the district court found the EPA exemption rule illegal, stating that the CWA requires permitting for "water transfers between distinct water bodies that result in the addition of a pollutant to the receiving navigable water body."

Not an effluent limit

In its petition to have the 11th Circuit rule on the district court’s finding, the EPA noted that the CWA provides federal appeals court jurisdiction over any EPA action that promulgates an effluent limitation as well as any Agency approval or denial of a CWA permit. 

But the 11th Circuit disagreed that it possessed the statutory jurisdiction in this instance.  Primarily, the court explained, the water-transfer rule is not an effluent limitation, that is, a regulation that prohibits the discharge of a pollutant. 

“The water-transfer rule imposes no restrictions on entities engaged in water transfers,” states the 11th Circuit.  “The effect is the opposite: the rule exempts governments and private parties engaged in water transfers from the procedural and substantive requirements of the Administrator's permit program. The rule frees the industry from the constraints of the permit process and allows the discharge of pollutants from water transfers.”

The 11the Circuit concluded that it did not have the statutory authority to rule on an exemption from the requirement for a permit and therefore denied EPA’s petition to have the 11th Circuit decide on the legitimacy of EPA’s permit exemption rule. 

Click here to read the 11th Circuit’s opinion in Friends of the Everglades v. EPA .

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