EPA wants Supreme Court to take case dealing with timing of suits challenging regulations

U.S. EPA on Friday asked the Supreme Court to review a Florida water case that the agency says set a dangerous precedent for how long environmental groups may wait before filing lawsuits challenging regulations.

At issue in the case is EPA's policy for water transfers between two sources. For years, advocates have asked various courts to force the agency to issue National Pollution Discharge Elimination System, or NPDES, permits for water moved from canals to Lake Okeechobee in southern Florida.

NPDES permits are required for point sources of discharges into U.S. waters and typically require permit holders to meet effluent pollution limits.

In 2008, EPA issued its Water Transfers Rule, which states that such transfers do not need NPDES permits.

But a jurisdictional dispute quickly arose: Can environmental groups challenge the regulations in federal district court -- which would give them six years to do so -- or must they go straight to the 11th U.S. Circuit Court of Appeals within 120 days?


EPA says the groups, including Friends of the Everglades, must go straight to the 11th Circuit. The agency says the transfers rule falls under a Clean Water Act provision that provides direct appellate review.

The Atlanta-based 11th Circuit ruled in EPA's favor with regard to cases that arose before the transfers rule was issued in 2008.

After that, however, the 11th Circuit also heard environmental challenges that went directly to the appeals court, skipping district court.

Last October, the circuit ruled in a way EPA didn't like: The judges said it didn't have jurisdiction to hear the direct appeal, arguing that the judicial review section of the Clean Water Act that EPA cited did not apply to the transfers rule.

In documents filed to the Supreme Court, Solicitor General Donald Verrilli said the case is of "exceptional importance" because of the timelines presented by the two legal routes. If the 11th Circuit ruling stands, citizen groups would have six years to challenge Clean Water Act rules such as the transfers regulations, and that would cause significant uncertainty for the regulated community.

The judicial review section of the Clean Water Act "ensures that if a reviewing court finds a covered EPA action to be legally deficient, the agency can address the defect promptly, before substantial interests have formed," Verrilli argued.

"Under the 11th Circuit's decision, by contrast," he went on, "NPDES permitting regulations such as the Water Transfers Rule would potentially be subject to judicial challenge over a much longer period of time and in a variety of fora."

Further, he added that such a litigation framework would inevitably lead to conflicting rulings from various district courts.

Industry groups have also asked the Supreme Court to take the case.

In a separate petition, the U.S. Sugar Corp. echoed the importance of the jurisdictional dispute.

"This is a critical question in terms of the certainty that a rule provides to the regulated community," said Timothy Bishop of Mayer Brown LLP, which represents the sugar association. "And without a clear answer a lot of resources are being wasted litigating the preliminary issue of where to litigate."

Click here to read the EPA petition.

Click here to read the sugar industry petition.

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