Court reinstates EPA rule to allow pumping dirty water unchecked

In June, water flushed from Lake Okeechobee triggerd an algae bloom along the Treasure Coast that coated waterways with stinky algae. These boats were docked at Central Marine in Stuart.
In June, water flushed from Lake Okeechobee triggerd an algae bloom along the Treasure Coast that coated waterways with stinky algae. These boats were docked at Central Marine in Stuart. Palm Beach Post/AP

South Florida water managers can keep moving dirty water from farms and suburbs into the Everglades and Lake Okeechobee without obtaining federal pollution permits, a divided U.S. appeals court ruled this week in New York.

The ruling stems from a decades-long battle by the Miccosukee Tribe and environmentalists to stop water managers from moving water from one body of water to another — for supplies, flood control or other purposes — without first obtaining a federal pollution permit. Dirty water has been at the heart of Everglades restoration, where marshes can quickly get choked by water rich in nutrients. Similar cases eventually surfaced around the country, with sporting groups and environmentalists similarly fighting to keep dirty water from natural areas.

Wednesday’s decision, the result of consolidating a number of cases before New York’s 2nd Circuit court, means the South Florida Water Management District can continue moving water unchecked, which environmentalists directly blame for fouling the Everglades.

In a statement titled “Ruling frees taxpayers from costly permitting obstruction in the operations of South Florida’s water management system,” the district called the ruling a victory that would have save taxpayers “potentially billions.”

“The court has affirmed that the SFWMD can continue its crucial work without the burdens of additional federal regulation,” governing board chairman Dan O’Keefe said in a statement.

But environmentalists say the ruling allows the continued spread of pollution, with costly consequences. Last year, polluted water flushed from Lake Okeechobee fouled both the Caloosahatchee and St. Lucie estuaries, leaving the Treasure Coast coated with slimy, green toxic algae. Months of stinky water and lost earnings from tourism has prompted Florida Senate President Joe Negron to push lawmakers in the March session to split the cost of a $2.4 billion reservoir to speed up cleanup efforts.

“They are using the public works that taxpayers pay for to spread pollution around, and that’s not right,” Tania Galloni, a managing attorney for Earthjustice’s Florida office, said in a statement.

The U.S. Environmental Protection Agency has historically taken a hands-off approach to the transfer of water, but in response to the legal fighting in Florida it issued a memo in 2005 saying that Congress never intended for water moved from place to place to be subject to pollution permitting. Three years later, as debate continued, the agency clarified itself in a formal rule, saying emphatically that water transfers would not require a permit.

Environmentalists and sporting groups from around the country quickly began mounting legal challenges. In Florida, the Miccosukee Tribe had been fighting for nearly ten years to stop the district from pumping dirty stormwater from a canal along Griffin Road that it said was polluting its Everglades reservation. Further north, environmentalists argued that pumping dirty water into Lake Okeechobee was not only fouling the lake but sending pollution throughout the watershed.

Over the years, the district has argued that getting permits for the district’s massive grid, with hundreds of pumps and floodgates, would be a bureaucratic nightmare. It also argued that some pumps were installed before the Clean Water Act and should therefore be grandfathered in.

After a court rejected the EPA rule in 2014, calling it an unreasonable interpretation of the Clean Water Act, states and the EPA appealed.

In making its Wednesday ruling, the appellate court said it is obligated to defer to the EPA’s interpretation of the Clean Water Act — the 2008 rule — and then decide whether it is reasonable policy. Two of the three judges concluded that the Clean Water Act intended for the federal government and states to work together in a “complicated scheme” and preserved the state’s authority over where water is moved and how it is used. The nearly 3,000-page act, the judges said, failed to address permitting the transfer of water.

Earthjustice, which represented the Florida Wildlife Federation, Friends of the Everglades and the Sierra Club, plans on meeting with its clients to decide how to respond to the ruling, Galloni said.

“There’s a couple of options,” she said. “None of them are easy.”

An earlier version of this story incorrectly paraphrased a statement from the South Florida Water Management District. The district said the ruling will save taxpayers billions.

Follow Jenny Staletovich on Twitter @jenstaletovich.