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.
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