WATER POLLUTION:

Supreme Court declines to take Fla. water transfer case

The Supreme Court decided today not to intervene in a Florida case concerning the strongly contested question of whether the Clean Water Act requires permitting in order to pump water from one body of water to another.

At issue is whether South Florida water managers can pump water from a canal into a lake without applying for a permit.

The legal issue was once before the Supreme Court but was not resolved.

By declining to take up the case, Friends of the Everglades v. South Florida Water Management District, the Supreme Court has again left the question unanswered.

The court does not explain why it denies petitions, but the most likely reason is that U.S. EPA is currently considering whether to revise its 2008 regulation exempting "water transfers" from permitting.

Justice Elena Kagan did not participate in the court's consideration of the case, most likely due to her previous role as U.S. solicitor general, the Obama administration's top legal advocate.

The South Florida water district has three pumping stations that pump water from canals into Lake Okeechobee.

Friends of the Everglades and other environmental groups argued that a permit should be required because the water is contaminated with various chemicals and the lake is a drinking water reservoir.

The water district maintained that no permit is required because the pumping stations are not the source of the pollution.

Although it was the defendant in the case, the district had wanted the Supreme Court to take up the issue in order to answer the legal question.

"We would rather have clarity and certainty," said James Nutt, the water district's lawyer.

In 2005, the Supreme Court took up essentially the same issue in another case, South Florida Water Management District v. Miccosukee Tribe of Indians, but did not definitively answer the question about whether waters can be treated as unitary.

In the latest case, the plaintiffs won at the district court level. On the appeal, the 11th U.S. Circuit Court of Appeals ruled against the plaintiffs in a June 2009 decision that cited the EPA regulation.

The federal government asked the Supreme Court not to take the case, arguing that the EPA regulation effectively resolved the ambiguity in the Clean Water Act.

Acting Solicitor General Neal Katyal wrote that the fact EPA is considering whether to revise the rule means "further review is not warranted at this time."

Sean Donahue, the Friends of the Everglades' attorney, said today that litigation is likely to continue unless EPA takes action.

"It's an important enough statute that it will continue to be brought up," Donahue said. "I'm hopeful it will be corrected."

The water district's Nutt said that even if EPA does look again at the regulation it would not necessarily be the final word because agencies can continually adopt new interpretations through the rulemaking process. "That's disconcerting," he said.

The Supreme Court's decision not to review the matter means that various related cases that were stayed pending its announcement will now continue.