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Federal Government Argues For Weaker Clean Water Protections

Bush administration moves to undercut established clean water protections
September 10, 2003
Washington DC —

A brief filed today with the U.S. Supreme Court by the federal government argues that municipal water management districts can pipe dirty water into cleaner water without any permit under the federal Clean Water Act. The U.S. Solicitor General filed an amicus brief in the case, South Florida Water Management District v. Miccosukee Tribe, No. 02-626, which would have serious impacts on federal protections for the nation's waters, as well as on the imperiled Florida Everglades.

"Today the federal government sided with polluters who want to avoid any responsibility for the dirty water they dump into our drinking water supplies, our natural lakes, streams and wetlands," said David Guest, managing attorney for Earthjustice's Tallahassee office. "Trying to establish this exemption would overrule a string of legal precedents that protect clean water."

The case before the Supreme Court concerns contaminated water that the South Florida Water Management District pumps across a levee between urban and agricultural areas and the Everglades. The water contains pesticides, herbicides, and fertilizer from agriculture, as well as oil, grease, and heavy metals from roads and urban developments. The local water management district is arguing that no Clean Water Act permit is needed because the water it pumps into the Everglades was not polluted by the pumps themselves.

Two lower courts disagreed, siding with the Miccosukee Tribe of Indians and Friends of the Everglades, an environmental group, who argued that pumping dirty water into clean water meets the definition of a discharge of pollutants under the Clean Water Act, and therefore requires a National Pollutant Discharge Elimination System (NPDES) permit. The water district has now asked the Supreme Court to decide whether conveying dirty water into clean water should be considered an "addition" of pollution under the Act.

"For thirty years, the Clean Water Act has provided broad protection against water pollution," said Jim Murphy, Wetlands and Water Resources Counsel at the National Wildlife Federation. "It is completely at odds with the Clean Water Act's intent and plain meaning to allow dirty water to be discharged into a separate clean waterbody without Clean Water Act safeguards. Any attempt to argue otherwise severely undermines the ability of responsible agencies and citizens to protect the health of our nation's waters."

The decision by the United States to side with the water management district in its Supreme Court battle comes on the heels of the State of Florida's decision in June to weaken pollution rules for the Everglades, including allowing a twelve year delay in requiring a stop to phosphorus pollution (which kills native Everglades vegetation). That decision, like this one, was criticized widely as conflicting with an $8 billion 30-year government civil works project launched in 2000 to restore the Everglades, the nation's largest subtropical wetlands and home to 68 endangered and threatened species.

"The Bush administration's approach would allow phosphorous pollution to poison the Everglades," said Nancy Stoner, director of the Clean Water Project at NRDC [Natural Resources Defense Council]. "Jeb Bush should call his brother and tell him this idea is as bad as drilling for oil off the coast of Florida."

In addition to allowing damage to the Everglades, the federal government's position in South Florida Water Management District v. Miccosukee Tribe would, if adopted by the Supreme Court, have broad implications for the jurisdiction or reach of the country's primary water pollution control law, impacting a host of other lakes and rivers around the United States. Many water districts or similar entities collect polluted surface runoff waters and dump them into clean waters.

In the brief filed today, the U.S. Solicitor General argues that no Clean Water Act permit should be required if a water management district is pumping water from one place to another -- no matter how polluted the water is or how much damage is caused.

"Water management districts should not be allowed to contaminate the Everglades or places like Lake Okeechobee without at least complying with the Clean Water Act like everybody else," said Manley Fuller, President of the Florida Wildlife Federation. "When the District recently dumped polluted canal water into Lake Okeechobee, it contaminated the Lake so much that residents in some cities were forced to switch to bottled water. The pollution was so strong that the water could not be safely treated to drinking water standards. There is no excuse to create a new exemption from the Clean Water Act for this kind of pollution."

"Once again, the Bush administration is letting the American people down on behalf of polluters, in this instance, abdicating its responsibility to ensure that the nation's clean water law and regulations are upheld," said Robin Mann, Chair of the Sierra Club's National Clean Water Campaign.

Alan Farago, Florida Sierra Club's Everglades Chair, noted, "We adamantly support the protection of our waters from all threats. In this case we are forced to defend them from public officials whose care and compassion extends primarily to polluters. History will not be kind to the continuing assault on America's environment by the Bush administration."

Contacts

Howard Fox, Earthjustice, 202-667-4500 x 203

Manley Fuller, FWF, 850-567-7129

Jim Murphy, NWF, 202-797-6893

Nancy Stoner, NRDC, 202-289-2394

Robin Mann, Sierra Club, 610-527-4598

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.