ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
Friends of the Everglades v. South Florida Water Management District I
NACWA won a significant legal victory June 4, 2009 when a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Atlanta ruled in Friends of the Everglades v. South Florida Water Management District (FOE v. SFWMD) that transfers of natural, untreated water from one water body to another do not require a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA). The court’s opinion echoes the position taken by NACWA and the New York City Department of Environmental Protection, a member agency, in a brief filed with the court in December 2007. The court’s decision relied on EPA’s June 2008 Water Transfers Rule, which is based on the unitary water theory holding that transfers of pollutants between navigable waters is not an “addition” of pollutants requiring an NPDES permit. The Eleventh Circuit determined that EPA’s regulation was a reasonable interpretation of the CWA’s ambiguous language regarding what an addition of a pollutant might mean under the statute. The court’s ruling reinforces NACWA’s longstanding position that such transfers of water between water bodies are not appropriate for NPDES regulation. The environmental plaintiffs in FOE v. SFWMD have indicated they will appeal the court’s decision to the full Eleventh Circuit and possibly to the U.S. Supreme Court. NACWA will continue to track the case and report on any developments.
Friends of the Everglades v. South Florida Water Management District II
The U.S Court of Appeals for the Eleventh Circuit issued an order in October 2012 dismissing consolidated petitions related to EPA’s 2008 Water Transfers Rule (WTR). This rule provides that transfers of water do not require a discharge permit under the CWA, so long as the transfers themselves do not subject the transferred water to any intervening commercial, industrial, or municipal use. A number of environmental activists groups challenged the rule, and those challenges were consolidated in the Eleventh Circuit. However, the court dismissed the case on jurisdiction grounds, finding that the appropriate venue for such challenges is at the federal district court level. NACWA has long supported the WTR and joined on New York City’s amicus brief in the case in support of the rule. EPA is currently considering its options as a result of the Eleventh Circuit ruling, but a number of environmental groups are already seeking to move forward with challenges to the rule in district court. NACWA will continue to track developments and will work to defend the rule as necessary.
NACWA signed on to a municipal brief submitted in November 2011 in the litigation, defending the rule and supporting the exemption of transfers of natural, untreated water from the National Pollutant Discharge Elimination System (NPDES) permitting framework. The brief, drafted by NACWA member New York City, was filed with the U.S. Court of Appeals for the Eleventh Circuit in Atlanta and sides with EPA in asking the court to uphold the challenged water transfers rule. This case differs from the previous FOE v. SFWMD litigation (see above) in that it stems from a direct challenge to the rule filed by environmental groups. The municipal brief argued that Congress never intended for transfers of untreated water to be subject to the NPDES permitting system and that EPA’s water transfers rule was a proper interpretation of the Clean Water Act. Additionally, the brief indicated that there are more appropriate regulatory mechanism under federal and state law for addressing diversions of untreated water than through NPDES permits. The arguments presented in the brief are consistent with the positions NACWA has taken in two prior litigation matters regarding the water transfers issue and represent a continuation of NACWA’s involvement on this issue. Other municipal organizations joining on the brief included the National League of Cities, the New York Conference of Mayors, the American Water Works Association, and the Association of Metropolitan Water Agencies.