In Blow To South Florida Environmental Groups, Court Upholds EPA's No Pollution Permits Rule

Jan 25, 2017

A federal ruling issued last week on water transfers could affect the quality of water in South Florida, while potentially saving money for the area's taxpayers.

The U.S. Second Circuit Court of Appeals in New York on Jan. 18 upheld an Environmental Protection Agency (EPA) rule that no federal pollution permits are needed to move water from one body of water to another. The court ruled 2-1, with the majority writing that the EPA rule is valid because the Clean Water Act -- a key piece of federal water quality legislation -- does not address water transfers.

"While we might prefer an interpretation more consistent with what appears to us to be the most prominent goals of the Clean Water Act... so long as the agencyʹs statutory interpretation is reasonable, what we might prefer is irrelevant," wrote Second District Judge Robert Sack.

In a statement, the South Florida Water Management District (SFWMD) described the decision as "a major legal victory" that could save South Florida families "potentially billions" of dollars. SFWMD was one of the defendants in the lawsuit, which combined several similar cases against the EPA and water management districts.

"The court has affirmed that SFWMD can continue its crucial work without the burdens of additional federal regulation," SFWMD's governing board chair, Dan O'Keefe, said in the statement, which described the permitting process as "a complicated, litigious and costly endeavor."

But environmental groups in South Florida are concerned the ruling will exacerbate the spread of pollutants or excess nutrients in the Everglades ecosystem.

"This wholesale exemption means that you could have any kind of pollution transferred from one body of water to another body of water," said Tania Galloni, a lawyer for Earthjustice. "Say you have a polluted body of water and the water’s transferred into a pristine body of water…. There's nobody to oversee that. There's no permitting regulation."

Galloni said  her organization, which was one of the plaintiffs in the suit, is particularly concerned about the backpumping of nutrient-heavy water into Lake Okeechobee from farms south of the lake. The nutrients used in fertilizer can contribute to outbreaks of blue-green algae, like ones that  developed in Lake Okeechobee and along Florida's coasts this past summer.

But Randy Smith, a spokesman for the South Florida Water Management District, said backpumping only takes place in emergency situations, when heavy rains or flooding lead to high water in canals that could threaten human safety.

"Any assumption that backpumping is going to be increased because of the court ruling is absurd," Smith said.