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Court Upholds "Unitary Waters" Regulation:

Earlier today the U.S. Court of Appeals for the Eleventh Circuit issued a potentially significant environmental decision in 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.

Repeal 16-17 (mail):
Near the end of the ruling, the court used the following in explaining the term "navigable waters" and why the EPA was entitled to Chevron deference:

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 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, we cannot say that either side is unreasonable
6.4.2009 11:00pm
rosetta's stones:

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.


What would a lawyer do if the word "hypothetical" was ever removed from the language, and no replacement permitted? I'm asking hypothetically, of course. Lawyers often use hypotheticals to confuse and create either doubt or certainty where it doesn't exist.

And in this case, their hypothetical sucks because they are trying to confuse and create certainty where there is none. Their hypothetical does not consider the hydraulic implications in play here. The buckets are not located at the same elevation, and although it's not entirely clear from their confused, wordy opinion, it appears that one bucket is 60' higher than the other, and the polluted water is being pumped up into the bucket at the higher elevation. Why would we pump pollutants up from a watershed, up into a clean watershed, particularly a lake that's being used as a potable water source?

The court cites this finding from another court case:



The EPA gave two reasons why no permit was required: (1) the
changes caused by the dams were not pollutants; and (2) even if they were,
releasing water through a dam did not add those pollutants to the water, because
the water would have reached the downstream river anyway, and its passage
through the dam did not change it.



However, the polluted water in this case would not reach the upper bucket, unless it was pumped up there. The upper water would be pristine of those pollutants, unless some lawyer is arguing that water flows uphill. Don't laugh, I've seen 'em do it.

This is the EPA running amuck, and the court is honoring their regulatory decision, perhaps doing their job correctly in a legal sense, but still we wind up in a bad place I believe. It's bad engineering practice, as I read it. We should not be bringing pollutants up to a higher hydraulic elevation into a clean watershed, not if they are of significant mass, certainly.

Clearly, the ag interests and residential interests down low are using the higher bucket as a convenient retention pond, rather than paying to build their own, or paying to channel the water further downstream. 400,000 gallons per minute is a huge volume of water. Not sure the mass of pollutants in that flow, or the magnitude of environmental impact on the upper bucket, but as a practice... this is not good.

The EPA are boobs. Next stop... carbon dioxide as a "pollutant".

I can't believe we subsidize sugar, and then also let the sugar guys pump polluted water back up into a potable water reservoir. Ridiculous. Those sugar guys should be bankrupted, with no bailouts. Wasn't Crist gonna buy a bunch of their land a while back, with state money? What a dope, he shoulda just flooded 'em out.

This is a case where we can say that government sucks... at all levels, and in every branch. Jackpot, baby.
6.5.2009 12:06am
Gabriel McCall (mail):
rosetta's stones: I don't think the case is as straightforward as you do. The key language of the law is this bit:


any addition of any pollutant to navigable waters from any point source


Both Lake Okeechobee and the canals are navigable waters. But the crucial question is whether each one is a separate example of a "navigable water", or whether they are both part of a single collective "navigable waters".

If each navigable body of water is considered separately, then moving pollutants from one to another is indeed an act of polluting navigable waters. However, if the term "navigable waters" overarchingly includes all navigable bodies of water, then once a pollutant is in "navigable waters", moving it around between individual bodies does not change the amount of pollution in "navigable waters" overall.

Similarly, if a law was passed saying that you could not bring a motorcycle on to the United States Interstates, does exiting from I-95 onto I-64 create a new offense? Maybe yes, maybe no- the motorcycle was not on I-64, but it was on "the Interstates".

I have to agree with the court that either reading is plausible.
6.5.2009 10:09am
Gabriel McCall (mail):
With that said, I agree with you that the result is bad from a policy and engineering standpoint. But judging policy and engineering is not the job of the courts. Those things have to be fixed elsewhere.
6.5.2009 10:14am
Gabriel McCall (mail):
As far as sugar goes, I'm sure the sugar guys would love to be able to operate without the tariffs and subsidies. Government control of the sugar market is not in the interests of the sugar producers; it's in the interest of the corn producers, specifically Archer Daniels Midland. Sugar is much more economically efficient a sweetener than corn; why then are our soft drinks sweetened with HFCS instead of sugar?
6.5.2009 10:23am
Nick P.:
If the canals are navigable waterways, why aren't the sugar companies liable for the runoff from their fields that creates the pollution in the first place? Does the law define the maximum diameter of a "point source?" Does a point source have to be a pipe, or can a field constitute a point source."
6.5.2009 10:27am
rosetta's stones:
GM,

I think I intuitively understand the concept of "unitary waters" that the court is applying here, although i haven't the legal understanding to speak to it in that sense.

That said, let me aver that "unitary waters" shouldn't be adjudged as unitary, common or like, based upon buckets and motor cycles, and semantics, which is what I believe the court is arbitrarily doing, in ignorance of the technical relationships of these water bodies. "Unitary waters" has gotta be a precise technical term, cognizant that waters are a system, composed of subsystems, which are composed of subsystems.... etc. Hydraulics matter, as well as any number of other issues. This court is using a simple "pH test", and then calling it good on everything. I disagree with this approach.

Their failure to recognize this, and to regress to some bucket analogy, is shameful. And buried in their decision, as they painstakingly blew smoke, and blew holes through each of the various sides' cites, is the relevant prevoius court decision which I mentioned above. It was the one directly applicable case concerning technical info that I found in that opinion, which should have been properly applied, and they failed to do so, and in fact misrepresented it:


C.
Both sides pitch several decisions to us. The Water District, arguing for
ambiguity, throws us National Wildlife Federation v. Consumers Power Co,, 862
F.2d 580 (6th Cir. 1988), and National Wildlife Federation v. Gorsuch, 693 F.2d
156 (D.C. Cir. 1982). In those cases the courts concluded that the “discharge of a
pollutant” language in the Clean Water Act was ambiguous and deferred to the
18
EPA’s view that dams did not add pollutants, which meant that no NPDES permits
were necessary. (RS NOTE: OK, SO FAR.)
862 F.2d at 584–85; 693 F.2d at 183.
The issues those cases
addressed, however, were different from the one before us
(RS NOTE: THIS A FALSE STATEMENT, I BELIEVE.).
In Gorsuch the National Wildlife Federation sued the EPA for failing to
require NPDES permits for dams. 693 F.2d at 161. The man-made dams and their
reservoirs caused changes in the water’s temperature, nutrient loads, and oxygen
content, and the affected water was then released through the dams into the rivers
below. Id.
The EPA gave two reasons why no permit was required:

(1) the
changes caused by the dams were not pollutants (RS NOTE: AGREED, THAT THIS PRECEDENT FOLLOWS IN THIS CASE, AS THE PUMPS DO NOT CHANGE THE CHARACTER OF THE POLLUTED WATER SIGNIFICANTLY.)
; and

(2) even if they were,
releasing water through a dam did not add those pollutants to the water, because
the water would have reached the downstream river anyway, and its passage
through the dam did not change it (RS NOTE: THE FLORIDA POLLUTED WATER WOULD NOT HAVE REACHED THE UPPER RESERVOIR UNLESS IT WAS PUMPED UP THERE, SO IT FAILS THE EPA'S 2nd TEST HERE, AND THE COURT INCORRECTLY APPLIED THIS PRECEDENT. SHAME ON YOU JUDGES, WITH YOUR "BUCKET" ANALOGY, CLOUDING THIS ISSUE.).



Id. at 165.

The D.C. Circuit concluded that
neither the language of the statute nor its legislative history conclusively
supported either side’s position about what “discharge of a pollutant” meant under
the circumstances of that case, so the court deferred to the EPA’s position (RS NOTE; FINE, AND THEY MAY BE LEGALLY CORRECT HERE, BUT YOU STILL HAVE TO SWALLOW THE ABOVE LOGICAL AND TECHNICAL DISCONNECT.).


5 Id. at
175, 183.
5 Gorsuch predates Chevron but applied a substantially similar level of deference. See
693 F.2d at 181 (“We hold merely that EPA’s interpretation is reasonable, not inconsistent with
congressional intent, and entitled to great deference; therefore, it must be upheld.”).
19

In doing so, the Gorsuch court accepted the EPA’s position that colder
water and changes in its oxygen and dissolved nutrient content were not pollutants
at all (RS NOTE: BUT THE POLLUTANTS IN QUESTION ARE RECOGNIZED AS POLLUTANTS, AND BY THE COURT ITSELF, RIGHT IN THEIR OPINION: "Not surprisingly, those canals contain a loathsome concoction of chemical
contaminants including nitrogen, phosphorous, and un-ionized ammonia. The
water in the canals is full of suspended and dissolved solids and has a low oxygen
content.
Those polluted canals connect..." THIS IS SHAMEFUL. THAT COURT IS BOTH SHAMELESS AND FLAUNTING, AND CHECK OUT HOW THEY INSULTED BOTH PARTIES TO THE CASE, AND CALLED THEM "DEERS IN THE HEADLIGHTS" UP IN THE OPINION, OVER THE 11A ISSUE. BLUSTER, AND AN OPINION OF JUST SUCH A CHARACTER. IT'S WORSE THAN ONE OF MY SLAPDASH POSTS, ONLY I ***DO*** CLAIM RIGHT TO INSULT LAWYERS, THEY CAN'T!)


. Id. at 174. That rendered irrelevant whether the changed water was being
‘added’ to navigable water by its movement through a dam. In any event, the
water was moving from a river above a dam to the same river below it (RS NOTE: AGAIN, NOT SO IN THIS CASE).
Because
the facts of the case did not present the issue of whether the transfer of pollutants
from one body of water to a different body of water adds pollutants to the
navigable waters, the Gorsuch court could not have decided that issue.


.
.

I dissent.
6.5.2009 11:44am
Specast:
The court's "bucket of marbles" digression is a great example of an awful analogy. The hypothetical statute is unambiguous: the rule prohibits "any addition of any marbles to buckets by any person." It creates no exception for marbles that happen to have been taken from another bucket, nor does it suggest that the (otherwise clear) term "addition" is to be construed by reference to all buckets in the US, such that a district court, to determine whether an "addition" has occurred, must no other buckets have lost marbles. "Adding" a marble to the clean bucket is an obvious violation of an unambiguous statute.

Second, the analogy is inapt, having been designed to support the court's conclusion. : the CWA bans "discharges," while the analogy bans "additions."

I have a counter-analogy. San Diego County prohibits the depositing (or "discharging" if you like) of trash on public property. I show up one day with a dump truck and deposit a ton of the smelly, rotting trash on the lawn of City Hall. My defense? Every item of trash had been gathered earlier from other public property. I mere transferred it from one area to another, with no total addition of trash to the trash-property environment. Heck, I could even argue (unlike, I suspect, the defendants in the case above) that my actions made cleanup easier, because now all the trash is in one place.

Anybody wanna bet on whether that argument works?
6.5.2009 3:18pm
Craig Oren (mail):
The court's Chevron analysis overlooks an important step: judging whether the agency's policy choice at step 2 was reasonable. Instead, the court tautologically turned its step 1 decision -- the statute is ambiguous -- to mean that step 2 is satisfied. But that interpretation makes nonsense out of step 2. Step 2 resembles State Farm -- it calls for the agency to show that it has carefully considered the problem and that the rule is the product of reasoned decision-making.
6.5.2009 4:17pm
bender:
the operative question here seems to be whether the court has completely lost its marbles
6.5.2009 11:42pm
David M. Nieporent (www):
Second, the analogy is inapt, having been designed to support the court's conclusion. : the CWA bans "discharges," while the analogy bans "additions."
The CWA bans discharges, which are defined as additions. 33 U.S.C. § 1362(12). Thus rendering your objection irrelevant.
6.6.2009 10:32pm

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