FEATURE ARTICLE

July 2009

To read this entire item of approximately 6000 words online now in PDF format: Click here to read this item if you are an existing subscriber to this publication. Click here to purchase the full text of this item to read now (price: $25). To subscribe to this publication and immediately access all its archives including this item, select the relevant publication under 'Catalogue' in the left-hand column PLEASE NOTE: to read PDFs on www.argento.com you must be using Version 5 of Acrobat Reader or Adobe Reader. If you have an earlier version you can download the latest free of charge by clicking here

Eleventh Circuit Charts a New Course on Water Transfers—What About the Water Transfer Rule?

On June 4, the U.S. Court of Appeals for the Eleventh Circuit issued its long-awaited decision in Friends of the Everglades v. South Florida Water Management District, ___F.3d___, Case No. 07-cv-13829 (11th Cir. June 4, 2009). Now, another long wait begins. In Friends of the Everglades, the Eleventh Circuit reversed a District Court ruling and held that the Clean Water Act (CWA) does not require a water district to secure a National Pollutant Discharge Elimination System (NPDES) permit before pumping polluted runoff water from drainage canals into Lake Okeechobee. In reaching its decision, the court looked to the U.S. Environmental Protection Agency’s (EPA) “water transfer rule,” a regulation the agency issued in June 2008—years after the litigation began—that specifically excludes inter-basin waterto-water transfers like the pumping activity in question. In the end, the court found that EPA’s rule reasonably addresses ambiguity in the CWA and allows the water transfers into Lake Okeechobee to continue without an NPDES permit. But with several lawsuits pending that challenge the water transfer rule itself, the question remains—how long will this last?