Friends of Everglades v. South Florida Water

• Decision Date: 04 June 2009
• Docket Number: No. 07-13829.,07-13829.
• Citation: 570 F.3d 1210
• Parties: FRIENDS OF THE EVERGLADES, Florida Wildlife Federation, Plaintiffs-Counter-Defendants-Appellees Cross-Appellants, Fishermen Against Destruction of the Environment, Plaintiff-Counter-Defendant-Appellee, Miccosukee Tribe of Indians of Florida, Intervenor-Plaintiff-Counter-Defendant-Appellee Cross-Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Defendant-Counter-Claimant-Cross-Appellee, Carol Wehle, Executive Director, Defendant-Appellant, United States of America, U.S. Sugar Corporation, Intervenor-Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

570 F.3d 1210

FRIENDS OF THE EVERGLADES, Florida Wildlife Federation, Plaintiffs-Counter-Defendants-Appellees Cross-Appellants Fishermen Against Destruction of the Environment, Plaintiff-Counter-Defendant-Appellee Miccosukee Tribe of Indians of Florida, Intervenor-Plaintiff-Counter-Defendant-Appellee Cross-Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Defendant-Counter-Claimant-Cross-Appellee Carol Wehle, Executive Director, Defendant-Appellant United States of America, U.S. Sugar Corporation, Intervenor-Defendants-Appellants.

No. 07-13829.

United States Court of Appeals, Eleventh Circuit.

June 4, 2009.

James Edward Nutt, West Palm Beach, FL, for Wehle.

Ellen J. Durkee, Andrew J. Doyle, U.S. DOJ, ENRD, Apell. Sec., Washington, DC, for U.S.

Jonathan Alan Glogau, Tallahassee, FL, Daniel H. Thompson, Berger, Singerman, P.A., Tallahassee, FL, John A. Bryson, Holland & Hart, LLP, Washington, DC, Rick J. Burgess, Gunster, Yoakley & Stewart, P.A., Fort Lauderdale, FL, Timothy S. Bishop, Mayer, Brown, Rowe & Maw, LLP, Chicago, IL, for South Fla. Water Management Dist.

Dione C. Carroll, Miami, FL, for Miccosukee Tribe Indians of Fla.

David George Guest, Earth Justice Legal Defense Fund, Tallahassee, FL, for Florida Wildlife Federation.

Dexter W. Lehtinen, Lehtinen Riedi Brooks Moncarz, P.A., Miami, FL, John E. Childe, Palmyra, PA, Sonia Escobio O'Donnell, Jorden Burt, LLP, David P. Reiner, Reiner & Reiner, P.A., Miami, FL, Monica K. Reimer, Earthjustice, Tallahassee, FL, for Friends of the Everglades.

Catherine Derdeyn Little, Hunton & Williams, Atlanta, GA, William Perry Pendley, Lakewood, CO, Charles R. Sensiba, Van Ness Feldman, P.C., Washington, DC, Stephen R. Farris, Atty. Gen. of N.M., Santa Fe, NM, Steven Geoffrey Gieseler, Pacific Legal Found., Stuart, FL, Alan H. Kleinman, New York City, Kenneth G. Spillias, Lewis, Longman & Walker, PA, West Palm Beach, FL, Daniel E. Estrin, White Plains, NY, James Patrick Longest, Jr., Durham, NC, Richard P. Mather, Sr., Pa. Dept. of Environmental Protection, Harrisburg, PA, Lauren Elizabeth Brown, Waterkeeper Alliance, Irvington, NY, Peter D. Nichols, Trout, Raley, Montano, Witwer & Freeman, PC, Denver, CO, Kenneth Hayman, Fla. Dept. of Environmental Protection, Tallahassee, Fl, P. Stephen Gidiere, III, Balch & Bingham, LLP, Birmingham, AL, Sam Kalen, Van ness Feldman, P.C., Washington, DC, for Amici Curiae.

Appeals from the United States District Court for the Southern District of Florida.

Before DUBINA, Chief Judge, CARNES, Circuit Judge, and GOLDBERG,^* Judge.

CARNES, Circuit Judge:

This appeal turns on whether the transfer of a pollutant from one navigable body of water to another is a "discharge of a pollutant" within the meaning of the Clean Water Act, 33 U.S.C. § 1362(12). If it is, a National Pollution Discharge Elimination System permit is required. 33 U.S.C. §§ 1311(a), 1342(a). The Act defines "discharge of a pollutant," but the meaning of that definition is itself disputed. During the course of this litigation, the Environmental Protection Agency adopted a regulation addressing this specific matter. The issue we face, after we dispose of a preliminary Eleventh Amendment question, is whether we owe that EPA regulation deference under Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

I.

The unique geography of South Florida is once again before us. See Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1261-62 (11th Cir.2009). Lake Okeechobee is part of that geography. Historically, the lake had an ill-defined southern shoreline because during rainy seasons it overflowed, spilling a wide, shallow sheet of water overland to the Florida Bay. "But progress came and took its toll, and in the name of flood control, they made their plans and they drained the land."¹

In the 1930s the Herbert Hoover Dike was built along the southern shore of Lake Okeechobee. It was intended to control flooding but failed during the hurricanes of 1947 and 1948. Congress then authorized the Central and Southern Florida Flood Project; as part of it the Army Corps of Engineers expanded the Hoover Dike and built pump stations including S-2, S-3, and S-4. Under the modern version of that project, nearly all water flow in South Florida is controlled by a complex system of gates, dikes, canals, and pump stations.

The area south of Lake Okeechobee's shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar cane fields and the surrounding industrial and residential areas.² Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and un-ionized ammonia. The water in the canals is full of suspended and dissolved solids and has a low oxygen content.

Those polluted canals connect to Lake Okeechobee, which is now virtually surrounded by the Hoover Dike. The S-2, S-3, and S-4 pump stations are built into the dike and pump water from the lower levels in the canals outside the dike into the higher lake water. They do that by spewing water through the dike and into "rim canals" open to the lake. This process moves the water containing Agricultural Area contaminants uphill into Lake Okeechobee, a distance of some sixty feet. The pumps do not add anything to the canal water; they simply move it through pipes. At full capacity, the pumps within the S-2, S-3, and S-4 stations can each move 900 cubic feet of water per second—more than 400,000 gallons per minute. The South Florida Water Management District operates the pumping stations.

Two organizations, the Friends of the Everglades and the Fishermen Against the Destruction of the Environment, filed this lawsuit against the Water District in 2002. The plaintiffs (whom we will call collectively the Friends of the Everglades) sought an injunction to force the Water District to get a permit under the Clean Water Act's National Pollution Discharge Elimination System (NPDES) program before pumping the polluted canal water into the lake. The court allowed a number of interveners to enter the lawsuit. Asserting that the pollution of Lake Okeechobee threatens its way of life, the Miccosukee Tribe joined on the plaintiffs' side. The United States, "on behalf of" the EPA and the Corps, joined on the defense side, as did the U.S. Sugar Corporation. In an amended complaint, the plaintiffs added the Water District's executive director as a defendant.

In early 2006 there was a two-month bench trial in the United States District Court for the Southern District of Florida. See Miccosukee Tribe v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1192-94 (11th Cir.2009) (describing that trial). After the trial, the district court decided that the Water District was immune under the Eleventh Amendment and dismissed it from the case, but the court kept the executive director in the lawsuit under the Ex parte Young doctrine. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). It concluded that operating the S-2, S-3, and S-4 pump stations without an NPDES permit violated the Clean Water Act. In June 2007 the court granted an injunction against the executive director of the Water District that required her to "apply . . . for a NPDES permit forthwith." All of the defendants except the Water District appealed the part of the final judgment that enjoined the executive director, while the plaintiffs cross-appealed the part dismissing the Water District under the Eleventh Amendment.

II.

We begin with the cross-appeal, which contests the dismissal of the Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.

No party disputes that the executive director of the Water District has been properly sued under the Ex parte Young doctrine. That doctrine provides an exception to Eleventh Amendment immunity for lawsuits against state officials as long as the plaintiffs seek only prospective injunctive relief to stop ongoing violations of federal law. See Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dept. of Health & Rehab. Servs., 225 F.3d 1208, 1219 (11th Cir.2000). And that is all the plaintiffs in this case seek. That relief can be obtained as readily by enjoining the real-person executive director as it could be by enjoining both her and the Water District. See Fed.R.Civ.P. 25 (providing for automatic substitution of successors upon the death or end of term of the officer named as the original party). If anything, injunctions against real people are more easily enforced than those against corporate or government entities because real people can be put in jail.

At one time it appeared that the Eleventh Amendment issue might matter because the executive director had initially argued that some of the relief requested by the Friends of the Everglades was beyond the proper scope of the Ex parte Young doctrine. If true, that part of the requested relief would have been unavailable unless the Water District itself could be sued. But Jonathan Glogau, the attorney representing the Water District, conceded at oral argument that if the plaintiffs are entitled to the relief they seek, all of that relief can be obtained by enjoining the executive director.³ We are entitled to rely on that concession because James Nutt, the attorney representing the executive director, assured us at the beginning of the arguments that Glogau would speak on the Eleventh Amendment issue for the executive director as well as for the Water...