Environmental Law - Travis M. Trimble

• Publication year: 2010

Environmental Lawby Travis M. Trimble^*

In this survey period,¹ the United States Court of Appeals for the Eleventh Circuit decided two cases addressing the scope of agency discretion to interpret statutes. In Friends of the Everglades v. South Florida Water Management District,² the Eleventh Circuit held that the Environmental Protection Agency's adoption of the "unitary waters" definition of navigable waters under the Clean Water Act³ was reasonable⁴ even though that approach had been universally rejected by the courts as an interpretation of the statute prior to the agency's rule.⁵ In Miccosukee Tribe of Indians of Florida v. United States,⁶ the Eleventh Circuit upheld the United States Fish & Wildlife Service's opinion that a water project in Florida would not jeopardize the survival of an endangered bird despite the project's adverse effects on the bird's habitat because the opinion was supported by adequate evidence.⁷

The United States District Court for the Middle District of Florida held, in the latest round in the three-state battle for rights to the Chattahoochee River's water, that the Army Corps of Engineers had violated federal law by the de facto reallocation of water stored in Lake Lanier in north Georgia for use as a municipal water supply.⁸ The United States District Court for the Southern District of Florida, on an issue of first impression in the Eleventh Circuit, held that the court lacked subject matter jurisdiction over claims challenging federal and state agency permitting decisions regarding a natural gas pipeline because the Energy Policy Act of 2005⁹ gave the federal circuit courts of appeal exclusive jurisdiction over permitting challenges to facilities or projects within its scope.¹⁰

Finally, the United States District Court for the Northern District of Georgia held that in order for a defendant to have "contributed to" the handling or disposal of waste for purposes of liability under the citizen-suit provision of the Resource Conservation and Recovery Act,¹¹ the defendant must have done affirmative acts that resulted in contamination; mere passive conduct was insufficient.¹² Nevertheless, the district court ruled that the defendant's conduct created an issue of fact as to whether it could be liable as an "operator" under the Comprehensive Environmental Response, Compensation and Liability Act.¹³

I. CLEAN WATER ACT

In Friends of the Everglades v. South Florida Water Management District,¹⁴ the United States Court of Appeals for the Eleventh Circuit held that the Environmental Protection Agency (EPA) acted reasonably in adopting a regulation¹⁵ exempting from the permitting requirements of the Clean Water Act¹⁶ transfers of water from one body of navigable water to another.¹⁷ The dispute concerned a dike and canals that were constructed to collect rainwater and runoff from sugar fields and industrial and residential areas near Lake Okeechobee in southern Florida. The canal water became polluted with agricultural and industrial contaminants contained in runoff. The Water District periodically pumped water containing those contaminants from the canals into the lake via pump stations in the dike.¹⁸ The plaintiffs sought an injunction requiring the Water District to obtain a National

Pollutant Discharge Elimination System (NPDES) permit¹⁹ for the discharge of canal water into the lake via the pumps.²⁰ The parties did not dispute that (1) the canal water being pumped into the lake contained pollutants, (2) both the canals and the lake are navigable waters, or (3) the pumps were point sources, all within the meaning of the Clean Water Act.²¹ At issue was whether "moving an existing pollutant from one navigable water body to another is an 'addition . . . to navigable waters' of that pollutant," thus requiring an NPDES permit.²²

Prior to the Eleventh Circuit's consideration of the issue on appeal, the EPA adopted a regulation addressing the issue specifically.²³ The regulation, interpreting the definition of discharge in the Clean Water Act,²⁴ provides that "water transfers," defined as "an activity that conveys or connects waters of the United States [i.e., navigable waters] without subjecting the transferred water to intervening industrial, municipal, or commercial use," are not subject to NPDES regulation under the Clean Water Act.²⁵ Thus, the issue before the Eleventh Circuit was whether this regulation was entitled to Chevron deference²⁶ from the court—that is, "whether the regulation is a reasonable construction of an ambiguous statute."²⁷ More precisely, the issue the court addressed was whether the term navigable waters in the statutory definition means any discrete body of water otherwise defined as "navigable"—in which case a pollutant would be added to a navigable water body each time it were moved from one such body of water to another, as in this case—or all navigable waters as a whole—in which case a pollutant could only be added once.²⁸

The court held that the EPA's interpretation of navigable waters means one entity as a whole for the purpose of determining when a discharge that has occurred was reasonable.²⁹ Following the standard of review of an agency regulation mandated by Chevron,³⁰ the court first applied the "traditional tools of statutory construction" and concluded that (1) the statutory language itself was ambiguous because it could reasonably be read either way;³¹ (2) the context in which the term navigable waters is used in the statute did not resolve the ambiguity;³² and (3) the broader context of the statute read as a whole did not resolve the ambiguity.³³ The court concluded that "because the EPA's construction is one of the two readings we have found is reasonable, we cannot say that it is 'arbitrary, capricious, or manifestly contrary to the statute'" under Chevron.³⁴

II. ENDANGERED SPECIES ACT

In Miccosukee Tribe of Indians of Florida v. United States,³⁵ the United States Court of Appeals for the Eleventh Circuit held that language in House Report 697³⁶ contained in the legislative history of the Endangered Species Act of 1973 (ESA),³⁷ which requires a federal agency to "give the benefit of the doubt to the species" when evaluating the effects of its projects under the ESA,³⁸ did not render the Fish and Wildlife Service's biological opinion regarding the effect of part of an Everglades restoration project on the endangered Everglades snail kite³⁹ arbitrary and capricious.⁴⁰ The Eleventh Circuit reasoned that the language means only that an agency could not base a decision not to act to protect a species on inadequate scientific information.⁴¹ The court held that the Service had adequate information and had considered it in this case.⁴² Regardless, the court ultimately held, in part, that when given Chevron deference,⁴³ the Service's "incidental take" statement, which allowed for certain detrimental impacts to the kite's habitat, was defective because it used habitat impact measurements rather than population count to determine when an incidental taking would begin to jeopardize a species and trigger the need for further evaluation by the agencies involved.⁴⁴

The Army Corps of Engineers, one of the federal agencies involved in the case, maintains "thousands of miles of canals and levees supported by scores of pumps, gates, and dams" around the Everglades to control flooding in southern Florida.⁴⁵ One of the gates in this system—designated "S-12"—is located in the critical habitats of two endangered bird species: the Everglades snail kite and the Cape Sable seaside sparrow. Both species depend on the water level for survival. The sparrow's critical habitat lies, in part, to the south of the S-12 gate, and the kite's lies, in part, to the north. Both species require stable periods of moderate to low water levels in their respective habitats to feed and to nest. As part of a long-term project to restore the Everglades, the Corps began to conduct tests of water flow that involved periodic and regular flooding into the Everglades through the S-12 gate. These periodic floods resulted in a precipitous decline in the sparrow population. In 1999 the Service determined that continued periodic flooding through the S-12 gate would result in the extinction of the sparrow, but preventing water from flowing through the gate to protect the sparrow would adversely affect the kite. As a compromise, the Corps and the Service developed an "Interim Plan," which was approved in 2002, to provide for a water release schedule that would protect the sparrow. In connection with this Plan, the Service issued a biological opinion concluding that the Plan would not jeopardize the kite. Under the Plan, the Corps allowed the water to back up north of the S-12 gate. Consequently, the water backed up into the kite's critical habitat and on the Miccosukee Tribe's land.⁴⁶

As a result of earlier litigation by the Tribe,⁴⁷ the Service issued another biological opinion in 2006.⁴⁸ Again, the Service concluded that while the Plan would adversely affect the kite to some extent, the Plan would not jeopardize the kite's survival.⁴⁹ The Service attached an incidental take statement to the biological opinion,⁵⁰ which acknowledged the adverse effects and stated that the Service and Corps would reconsult about the Plan's impact on the kite if the water level at a specified point in the kite's habitat dropped more than a certain amount in a specified period during any year.⁵¹ The Tribe challenged the Service's 2006 biological opinion and associated incidental take statement concerning the Plan.⁵² The district court granted summary judgment to the Service on all of the Tribe's claims, and the Tribe appealed.⁵³

A. The Tribe's Procedural Attack on the Service's Biological Opinion

The Tribe first contended that the biological opinion was unlawful because the opinion "fails to follow proper procedures, which require using the best available scientific data, giving the benefit of the doubt to the...