I ended up reading about this case, which I was unaware of since it happened across the country from me, because of the Supreme Court's refusal to hear it. And I am appalled. For once, I am not appalled at the Supreme Court. And, as much as I hate to say it, I think the 11th Circuit reached the proper decision. No, in this case I am really annoyed at the EPA.
The issue at hand in this case is whether water transfers -- moving water from one "navigable body of water" to another -- require permits under the Clean Water Act. In this case, the transfer involved pumping water from the navigable (and very polluted) waters of Army Corps of Engineers drainage canals uphill through pumping stations to canals feeding into into the waters of Lake Okeechobee, which, in the natural order of things, would feed into the Everglades. As it is now, the land south of the lake has been drained (starting in the 1930s), but attempts to restore the Everglades (an incredibly sensitive habitat) involve undoing at least some of that.
In prior decisions, courts had rejected the "unitary waters" theory, which argues essentially that all navigable waters are part of a whole, and so an entity did not need a permit under the Clean Water Act before the transfer of the pollutants.
So... the EPA, while the case was winding its way through the court system, adopted a regulation which specifically exempted water transfers from the permitting requirements. Thanks, guys. And the 11th District, reluctantly but properly,* stated that this decided the case in favor of the Water Management District... and against the environment. And the Miccosukee Tribe, which had argued that the pollution threatened their way of life.**
Lake Okeechobee is already polluted: the levels of phosphorus in the lake are about four times the legal limit. Allowing for the dumping of still more pollutants into it will just make things worse.
The real problem underlying all of this is nonpoint source (NPS) pollution. In Florida (and California, as well), this often means agricultural runoff. (In New York, it would be more likely municipal runoff.) It is noteworthy that one of parties in this suit (on the side of the Water District, of course) was the United States Sugar Corporation. The canals, which drain farmland, were contaminated by pesticides and fertilizers. Agricultural concerns have an interest in having the disposal of runoff be as easy as possible.
Just to clarify, since the runoff is not regulated when it flows into the canal, this decision means that the runoff is not regulated at any point between the field and the lake. Yes, this is a big loophole: but, as the judge noted in his opinion, an even bigger loophole is the Act's refusal to regulate NPS to begin with, and its specific exemption for agricultural runoff and discharges from the definition of "point sources." As Judge Carnes said:
What this illustrates is that even when the preamble to legislation speaks single-mindedly and espouses lofty goals, the legislative process serves as a melting pot of competing interests and a face-off of battling factions. What emerges from the conflict to become the enactment is often less pure than the preamble promises. The provisions of legislation reflect compromises cobbled together by competing political forces and compromise is the enemy of single-mindedness.
This decision has the possibility of affecting far more than the state of Florida. It essentially means any navigable water, no matter how pristine or environmentally sensitive, is potentially at risk, if it receives flows from any other navigable water with pollutants.
That's scary. And all of this pushes the restoration of the 'Glades -- one of the lost or endangered natural wonders of North America -- further down the line.
And that's just sad.
* I have to say I rather like the opinion, aside from its outcome. The opinion's author, Judge Edward Carnes, wrote an understandable opinion that was not unsympathetic to the plaintiffs. He also quoted country singer John Anderson's ode to the lost Everglades, "Seminole Wind." That's just cool.
** SFWMD has tried to shaft the Miccosukee in regards to tribal remains, as well.
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