Aug 20, 2007

SFWMD Files Appeal in Water Transfer Case

As drought-plagued farmers with 45-percent watering restrictions fumed, Southern Florida Water Management District honored a US District Court order to not pump phosphate-laden canal water into Lake Okeechobee until it obtains a National Pollutant Discharge Elimination System permit for the transfer.

On June 15, the US District Court for the Southern District of Florida ordered SFWMD to apply for a NPDES permit to operate pumping stations S-2, S-3 and S-4 on the southern rim of Lake Okeechobee. Earlier the court had ruled in favor of a suit brought by Friends of the Everglades, the Miccosukee Indian Tribe and the Florida Wildlife Federation, charging that SFWMD was discharging polluted waters into the lake and needed the CWA permit.

The pumps are used for regional flood control and water supply, according to SFWMD, and are already operating under a five-year state permit from the state of Florida, which SFWMD says establishes pollutant targets, limits phosphorus, includes comprehensive monitoring and restricts the transfer of water from the agricultural area into the lake.

Meanwhile, warnings were sounded by Florida Agriculture and Consumer Services Commissioner Charles H. Bronson, whose Aug. 7 press release said Florida's economic losses "are expected to surpass $1 billion over the next two years if the current situation is not altered."

USEPA is also interested in the outcome of SFWMD's appeal of the ruling. On August 5, 2005, the agency issued a legal memorandum entitled "Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers." This memo confirmed EPA's interpretation that Congress intended water transfers to be subject to oversight by water resource management agencies and state non-NPDES authorities, rather than the NPDES permitting program.

In June 2006, USEPA proposed a NPDES Water Transfers Rule, which would exclude water transfers from needing a NPDES permit and defines a water transfer as an activity that conveys waters of the United States to another water of the United States without subjecting the water to intervening industrial, municipal, or commercial use. This exclusion does not apply, though, to pollutants that the water transfer itself may introduce to the water being transferred.

The courts, however, have not agreed, and a final rule is expected by the end of the year.