Focus. Rule may affect Lake Okeechobee. (Photo courtesy of South Florida Water Management System)

The Environmental Protection Agency is seeking to clarify a regulatory issue that has been at the heart of recent court cases: Do transfers of water require federal clean water permits? The agency proposed a rule on June 1 stating that transfers from one body of water to another are not subject to National Pollutant Discharge Elimination System permits. A major Florida water district likes EPA’s plan, but an environmental group is crying foul.

Comments are due on EPA’s proposal in mid-July, but officials also are keeping an eye on a federal court in Florida, where a key water transfer case is pending. The suit was filed by the Miccosukee Tribe of Indians, which argued that the South Florida Water Management District violated the Clean Water Act by pumping phosphorus-tainted waters into Lake Okeechobee, the area’s largest source of drinking water. The case came before the U.S. Supreme Court, which in 2004 did not rule directly on the issue, but remanded it to the district court.

Nick Gutierrez, a water district governing board member, says if the plaintiffs win, it could mire water managers nationwide in permitting issues. “We move a lot of water throughout the 16 counties in our jurisdiction,” Gutierrez says. “It would be ludicrous for us to have to apply for a permit every time we moved water from one point to another.” He says EPA hasn’t required such permits and adds, “There’s no sense in interjecting a cumbersome and faraway federal bureaucracy into essentially local water transfer decisions.”

But Joan Mulhern, legislative counsel for Earthjustice, counters that because transfers involve movement of pollutants, they should trigger the Clean Water Act. Earthjustice represents the Miccosukee Tribe and other groups in the Florida case. “The argument that the EPA never intended this reading of the Clean Water Act is one of the most ridiculous claims I’ve ever seen the EPA make,” Mulhern says. “It ignores the reality that it will have a very negative affect on water quality in places where you’re pumping polluted water into clean water.”

State regulations require the Florida water district to meet a phosphorus discharge standard of 10 parts per billion, says Chip Merriam, the district’s deputy director of water resources. Since passage of the Everglades Forever Act in 1994, the district has undertaken a $1-billion-plus program to build a 60,000-acre marsh system to remove phosphorus from water naturally. Merriam says 80% of the volume that had gone into the lake now is filtered into the marsh system.

“We’re already doing the exact things that Earthjustice’s constituents want done,” he says. “We’re making a lot of progress without the added permitting.”