"Back-Pumping" Of Agricultural And Urban Runoff Into Lake Not Subject to Clean Water Act Permit Requirements

June 11, 2009 | Roger McEowen

 

The Clean Water Act (CWA) prohibits the discharge of any “pollutant” into the “navigable waters of the United States” without a permit.  A “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.”  In other words, a pollutant cannot be added to navigable waters without a discharge permit.  But, can regulated waters that are unaltered be transferred through a point source from one location to another location without a permit?  That was the question in this case, and the EPA has historically said “no.”  In addition, in 2004, the U.S. Supreme Court said in 2004 that no permit is necessary where different water bodies are “meaningfully connected.”  In 2008, the Environmental Protection Agency (EPA) adopted a regulation that did not require a federal permit for transfers of “waters of the United States” to other “waters of the United States” where there has been no intervening industrial, municipal or commercial use.  But, the exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.  That type of water transfer requires a permit.    

This case involved “back pumping” by the South Florida Water Management District of polluted water from drainage canals into Lake Okeechobee in Florida.  The trial court ruled that the Water District had repeatedly violated the CWA by pumping polluted flood water (runoff that contained nitrogen, phosphorous and ammonia) into Lake Okeechobee where it allegedly damaged wildlife habitat, killed fish and fouled drinking water.  The trial court held that water transfers between distinct water bodies that result in the addition of a pollutant to the receiving navigable water body are subject to the CWA’s permit requirement.  

But, the appellate court disagreed.  The court said the statute clearly required the “addition” of a pollutant to navigable waters from a point source, and that the 2008 EPA regulation was not an arbitrary interpretation of the statute.  So, no permit is needed for waters that are connected without an intervening industrial, municipal or commercial use. Friends of the Everglades, et al. v. South Florida Water Management District, et al., No. 07-13829 (11th Cir. Jun. 4, 2009).