Issues:
Whether the wetland area comprising of the Caernarvon Diversion is a “water of the
United States” as defined by the CWA?
Whether diverting Mississippi River water containing pollutants from the River into
the diversion is an “addition… to navigable waters” of that pollutant.
Is the Caernarvon Diversion in fact a navigable water way?
Whether the unitary waters theory applies, therefore making regulation under the
CWA inapplicable?
Rules:
Congress enacted the Clean Water Act to “restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C. §1251. To accomplish this
goal, the CWA prohibits “the discharge of any pollutant by any person,” unless in
compliance with §402 or §404.
“Discharge” is defined as “any addition of any pollutant to navigable waters from any
point source.” §1362(12)(A).
“Point source” is defined as “any discernable, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container…” §1362(14).
Under §402, the Administrator of the EPA may issue permits authorizing the discharge
of pollutants in accordance with specified conditions. §1342(a). “The authority to
administer the NPDES permit system may be delegated to a state or regional agency
where the state or regional regulatory scheme meets certain criteria.” §1342(b).
Under §404, the Secretary may issue permits “for the discharge of dredged and fill
material into the navigable waters.” §1344(a).
The NPDES permit regime requires compliance with numerous provisions such as
effluent limitations, water-quality standards, water monitoring obligations, public
reporting mechanisms, and certain discharge requirements. See §1342(a).
Facts:
Canals/trenches divert water from the Mississippi River into the Carnarvon Diversion
in order to facilitate wetland regrowth. It is undisputed that the agricultural, urban
and industrial runoff into the Mississippi River contain “pollutants,” that the
Mississippi is considered part of the “nations waters,” and that the canals/trenches
that divert the river water into the diversion are “point sources” within the meaning
of the Act.
The permitting requirement does not apply unless the waters are meaningfully
distinct. S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95 at 112 (2004).
Is this still good law?
Waters Transfer Rule/Unitary Waters theoriy
The “unitary waters” theory holds that it is not an ‘‘addition… to navigable waters’ to
move existing pollutants from one navigable water to another, and that all bodies of
water which fall within the CWA’s definition of “navigable waters” are inseparable
parts of a single whole. See ONRC Action v. U.S. Bureau of Reclamation. An addition
occurs, under this theory, only when pollutants first enter navigable waters from a
point source, not when they are moved between navigable waters.” Miccosukee, 541
U.S. at 110.
Between 1991 and 2006, “the unitary waters theory, its premise, or both, were considered
and rejected by the First, Second, Ninth, and Eleventh Circuit Courts of Appeal.” ONRC Action.
EPA’s water transfers rule is meant to “clarify that water transfers are not subject to
regulation under the [NPDES] permitting program. This rule defines water transfers as
an activity that conveys or connects waters of the United States without subjecting
the transferred water to intervening industrial, municipal, or commercial use. NPDES
Water Transfers Rule, 73 Fed. Reg. 33,697-708 (June 13, 2008) (codified at 40 C.F.R. §
122.3(i)).
In Friends of the Earth v. South Florida Water Management District, the 11th Circuit
found that the phrase “…” was ambiguous, and therefore gave Chevron deference to
the EPA’s interpretation found in the Unitary waters theory. The court accepted the
unitary waters theory that transferring pollutants between navigable waters is not an
“addition… to navigable waters,” because it is a permissible construction of that
language.
Π in that case argued that the agency was not entitled to Chevron deference because the
meaning of the “addition… to navigable waters” language is not ambiguous and forecloses on
the unitary waters theory. Court rejected, found there were multiple interpretations, the very
definition of ambiguous.
Cases relied upon by ∆’s that found “discharge of pollutant” language ambiguous, 11 th Cir.
Found cases inapplicable
National Wildlife Federation v. Consumer Powers Co., 862 F.2d 580 (6th Cir. 1988)
National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982)