Clean Water Act Regulates One Pot of Soup: The Unitary Waters Theory Adopted

By Law Clerk Nicole Widdis

The Eleventh Circuit Court of Appeals, in an order filed today, was the first court to interpret a recent Environmental Protection Agency (EPA) regulation, the Water Transfers Rule (40 C.F.R. § 122.3(i)), which affects the Clean Water Act National Pollution Discharge Elimination System (NPDES).

The case before the Court involved litigation brought by environmental groups and the Miccosukee Tribe of Indians claiming the South Florida Water Management District was violating the Clean Water Act by pumping waters polluted by a “loathsome concoction of chemical contaminants into Lake Okeechobee.” The EPA joined the case on the side of the Water District arguing that a NPEDS permit was not necessary. The trial court concluded the District violated the Clean Water Act and ordered the executive director of the Water District to apply for a NPDES permit.

The big issue in the case and on appeal was the meaning of the word “addition.” The Clean Water Act bans the discharge of any pollutant without a permit, and “discharge” is defined as “any addition of any pollutant to navigable waters from any point source.” Unfortunately for the courts and many litigants, the Clean Water Act did not define “addition.”

The EPA argued that no permit was necessary for the water district in this case, because the water was already polluted when it passed through the pumps (the point sources) into the lake, and that “navigable waters” means all of the United States navigable waters as a whole. Thus, according to the EPA no pollutants were added to the navigable waters as they passed through district managed pumps to the lake. The metaphor used by the U.S. Supreme Court describing this “unitary waters theory” is a soup pot. When you scoop soup into a ladle and then pour it back into the pot you have not “added” any soup to the pot. Under the unitary waters theory, all of the United States navigable waters are one pot of soup.

Previous courts rejected the unitary waters theory. The difference here is that the 11th Circuit could include consideration of the Water Transfers Rule recently adopted by the EPA to support a unitary waters theory. In order to apply the Water Transfers Rule, the Court had to determine whether the language of the Clean Water Act was “ambiguous.” Both sides of the controversy argued reasonable but conflicting interpretations of the “navigable waters” language. Does it mean one collective group of water, or does it mean any distinct body of water? The Court determines that since it could mean either, the language was ambiguous.

Because of the ambiguity, the Court was required to defer to EPA’s Water Transfers Rule enacted by the EPA, because it matched one of the reasonable interpretations of the statute. Thus, unless and until the EPA rescinds their rule or Congress overrides it, all bodies of navigable water in the United States are to be considered one body of water for the purpose of NPDES permits.

Since South Florida Water District was not adding the pollutants to the water initially, and was merely transferring polluted water from one place to another, the District was not required to obtain a permit, something the environmental groups in the case find contrary to the purpose of the Clean Water Act.

Eleventh Circuit Case: Friends of the Everglades, Florida Wildlife Federation et al. v. South Florida Water Management District, et. al. D.C. Docket No. 02-80309-CV-CMA, Order filed June 4, 2009.