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Pumping Pollution into Our Waterways

UPDATE: On December 11, 2006, a federal judge in Miami ruled that the South Florida Water Management District must comply with the Clean Water Act.

As we await the decision of the court in our lawsuit challenging the pollution of Lake Okeechobee, Florida's largest drinking water source, the Environmental Protection Agency has proposed rewriting Clean Water Act regulations in an attempt to say that pumping polluted water into clean water doesn't need a permit -- the very issue at stake in the Lake Okeechobee case. In other words, EPA is trying to head off a potential win for clean water in our case (and other water transfer cases) by changing the rules.

For years, our Tallahassee-based attorneys have been challenging the destructive process of pumping water from industrial agriculture and urban runoff sources into Lake Okeechobee. This transfer of billions of gallons of polluted water pumped into Lake Okeechobee leads to toxic algae blooms, depleted fish and wildlife populations and poisoned drinking water supplies for many south Florida communities.

Huge pumps along Lake Okeechobee periodically discharge a black, pollutant-laden plume that can reach up to nine miles into the lake. The lake is the second largest freshwater lake wholly within the United States. While irrefutable evidence shows that water transfers can contaminate drinking water supplies and pose grave threats to public health, EPA has still pushed this rule forward in a rush to guarantee the right of polluters to continue destroying our nation's waters.

The trial concluded this May and Earthjustice attorneys are hopeful that we may win a legal decision that will end this practice of pollution pumping into Lake Okeechobee. During the course of the case, EPA took the highly unusual step of intervening on the side of polluters -- so it is not a complete surprise that the agency has followed up by proposing this rule that would exempt an entire class of water polluters from the Clean Water Act, allowing pollution and contaminants to be dumped directly into drinking water sources as well as lakes and streams by water transfer operations. In fact, our attorneys believe that the rule was rushed through the agency in a race to beat the  impending federal court decision on the backpumping of water into Lake Okeechobee, a claim EPA has not denied.

However, a very recent positive development may foreshadow some trouble for EPA's attempt to deregulate the pumping of polluted water. Just this week, the United States Court of Appeals for the Second Circuit issued a decision stating that the interpretation advocated by EPA in its proposed rule conflicts with the Clean Water Act's prohibition on adding pollution to waters with a permit ensuring compliance with water quality standards. This Second Circuit decision involves water transfers that deliver drinking water to New York City. The court's decision in that case flies directly in the face of EPA's new transfer rule. The court wrote that, "The power of the states to allocate quantities of water within their borders is not inconsistent with federal regulation of water quality."

Our Lake Okeechobee litigation will continue forward and we will work to oppose this rule to ensure that our victories in court are not overturned by EPA's regulatory rollbacks.