Friends of the Everglades v. South Florida Water Management District, 2009 WL 1545551 (C.A.11 (Fla.)) ("Friends").

Friends involves a challenge to U.S. EPA's final Water Transfers Rule3 (the "Water Transfers Rule"), which is discussed in more detail in our 2008 Fourth Quarter Environmental Newsletter, available at: www.ralaw.com/publications/environmental_4Q.

By way of background, the Army Corps of Engineers dug canals in an area south of Lake Okeechobee's shoreline in Florida. These canals were intended to collect rainwater and runoff from the sugar cane fields and the surrounding industrial and residential areas. Due to this type of activity in the surrounding areas, the canals contain water with chemical contaminants, including nitrogen, phosphorous and un-ionized ammonia. The canals connect to Lake Okeechobee and are surrounded by the Hoover Dike. Built into the dike are pump stations that pump water from the lower levels in the canals outside the dike into the higher lake water. The South Florida Water Management District ("Water District") operates the pumping stations. The central issue in Friends is whether the act of pumping the water from the canals into the Lake Okeechobee requires the Water District to obtain a National Pollutant Discharge Elimination System ("NPDES") permit.

In Friends, the Eleventh Circuit Court of Appeals (the "Court") examined this issue in light of the regulatory scheme set forth by the Clean Water Act ("CWA"). The CWA 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." Pursuant to the court in Friends, the parties did not dispute that the runoff in the canals, being pumped into the Lake Okeechobee, contains pollutants and that the pump stations are point sources pursuant to the CWA.4 The question, then, was whether moving an existing pollutant from one meaningfully distinct navigable water body to another is an "addition . . . to navigable waters" of that pollutant pursuant to terms of the CWA.

This issue has previously been litigated in multiple courts. However, Friends is the first case to address this issue in light of the new Water Transfers Rule. Under the Water Transfers Rule, the term "water transfer" is defined as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. Thus, under this rule, an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial uses is exempt from the NPDES permitting requirements.

In Friends, the Court upheld the Water Transfers Rule as a reasonable, permissible construction of the statutory language set forth in the CWA. Furthermore, the Court determined that because the pumping action did not subject the transferred water to intervening industrial, municipal, or commercial uses, the Water District was not required to obtain an NPDES permit to operate the pumps transferring polluted water from the canals into Lake Ochochobee. While the Court notes that some case law precedent provides that a transfer of pollutants from one meaningfully distinct navigable body of water to another is an addition of pollutant to navigable waters requiring an NPDES permit, the U.S. EPA's promulgation of the Water Transfer Rule introduces an important consideration that altered the Court's analysis in this situation.

Notably, the parties in the Friends case may appeal the Court's decision. Moreover, there are cases pending in other courts which could address these issues and potentially reach a different result in the future.