Friends of the Everglades v. S. Fla. Water Mgmt. Dist. - 570 F.3d 1210 (11th Cir. 2009)

Rule:

In making a determination on whether an agency's regulation is a permissible construction of statutory language, a court need not conclude that the agency construction was he reading the court would have reached if the question initially had arisen in a judicial proceeding.

Facts:

In the 1930s the Herbert Hoover Dike was built along the southern shore of Lake Okeechobee. It was intended to control flooding but failed during the hurricanes of 1947 and 1948. Congress then authorized the Central and Southern Florida Flood Project; as part of it the Army Corps of Engineers expanded the Hoover Dike and built pump stations including S-2, S-3, and S-4. Under the modern version of that project, nearly all water flow in South Florida is controlled by a complex system of gates, dikes, canals, and pump stations. The area south of Lake Okeechobee's shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar fields and the surrounding industrial and residential areas. Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and un-ionized ammonia. Those polluted canals connect to Lake Okeechobee, which is now virtually surrounded by the Hoover Dike. The S-2, S-3, and S-4 pump stations are built into the dike and pump water from the lower levels in the canals outside the dike into the higher lake water. They do that by spewing water through the dike and into "rim canals" open to the lake. This process moves the water containing Agricultural Area contaminants uphill into Lake Okeechobee, a distance of some sixty feet. The pumps do not add anything to the canal water; they simply move it through pipes. The South Florida Water Management District operates the pumping stations.

Two organizations, the Friends of the Everglades and the Fishermen Against the Destruction of the Environment, filed this lawsuit against the Water District in 2002. The plaintiffs sought an injunction to force the Water District to get a permit under the Clean Water Act's National Pollution Discharge Elimination System (NPDES) program before pumping the polluted canal water into the lake. In early 2006 there was a two-month bench trial in the United States District Court for the Southern District of Florida. After the trial, the district court concluded that operating the S-2, S-3, and S-4 pump stations without an NPDES permit violated the Clean Water Act.

Issue:

Is the EPA’s new regulation, which accepts the unitary waters theory that transferring pollutants between navigable waters is not an "addition . . . to navigable waters," is a permissible construction of that language?

Answer:

Yes.

Conclusion:

In order to fully explain its logic, the court gave the following hypothetical: two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting "any addition of any marbles to buckets by any person." A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marble-mover "add[ed] any marbles to buckets"? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, the court cannot say that either side is unreasonable. Like the marbles rule, the Clean Water Act's language about "any addition of any pollutant to navigable waters from any point source," is ambiguous. The EPA's regulation adopting the unitary waters theory is a reasonable, and therefore permissible, construction of the language. Unless and until the EPA rescinds or Congress overrides the regulation, the court must give effect to it.