Posted by Jonathan Adler:
Court Upholds "Unitary Waters" Regulation:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244165636
Earlier today the U.S. Court of Appeals for the Eleventh Circuit
issued a potentially significant environmental decision in [1]Friends
of the Everglades v. South Florida Water Management District. The
court upheld the Bush Administration's controversial regulation
adopting a "unitary waters" theory of the waters of the United States
for purposes of Clean Water Act permitting. Under the regulations,
upheld on Chevron step two grounds, the transfer of water from one
water body to another does not cause the "discharge" of a pollutant
under the Act. As far as I am aware, the Eleventh Circuit is the first
circuit court to consider whether this regulation adopted a reasonable
interpretation of the Act.
Excerpts from the opinion are below.
([2]show)
This appeal turns on whether the transfer of a pollutant from one
navigable body of water to another is a �discharge of a pollutant�
within the meaning of the Clean Water Act, 33 U.S.C. § 1362(12).
If it is, a National Pollution Discharge Elimination System permit
is required. 33 U.S.C. §§ 1311(a); 1342(a). The Act defines
�discharge of a pollutant,� but the meaning of that definition is
itself disputed. During the course of this litigation, the
Environmental Protection Agency adopted a regulation addressing
this specific matter. The issue we face, after we dispose of a
preliminary Eleventh Amendment question, is whether we owe that EPA
regulation deference under Chevron U.S.A., Inc. v. Natural Res.
Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). . . .
The Clean Water Act bans the �discharge of any pollutant� without a
permit. 33 U.S.C. §§ 1311, 1342(a)(1). �Discharge� is defined as
�any addition of any pollutant to navigable waters from any point
source.� 33 U.S.C. § 1362(12). It is undisputed that the
agricultural and industrial runoff in the canals contains
�pollutants,� that Lake Okeechobee and the canals are �navigable
waters,� and that these three pump stations are �point sources�
even though they add nothing to the water as they move it along. .
. . . The question is whether moving an existing pollutant from one
navigable water body to another is an �addition . . . to navigable
waters� of that pollutant. The district court decided that it is,
but that decision came before the EPA adopted its regulation. . . .
Having concluded that the statutory language is ambiguous, our
final issue is whether the EPA�s 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. Chevron, 467 U.S. at
843, 104 S. Ct. at 2782. In making that determination, we �need not
conclude that the agency construction was . . . the reading the
court would have reached if the question initially had arisen in a
judicial proceeding.� . . . Because the EPA�s construction is one
of the two readings we have found is reasonable, we cannot say that
it is �arbitrary, capricious, or manifestly contrary to the
statute.�
Sometimes it is helpful to strip a legal question of the
contentious policy interests attached to it and think about it in
the abstract using a hypothetical. Consider the issue this way: 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 marblemover �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,
we 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,� 33 U.S.C. § 3362(12), 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, we must give effect
to it.
([3]hide)
References
1. http://www.ca11.uscourts.gov/opinions/ops/200713829.pdf
2. file://localhost/var/www/powerblogs/volokh/posts/1244165636.html
3. file://localhost/var/www/powerblogs/volokh/posts/1244165636.html
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