In this survey period, 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, the Eleventh Circuit held that the Environmental Protection Agency’s adoption of the “unitary waters” definition of navigable waters under the Clean Water Act was reasonable even though that approach had been universally rejected by the courts as an interpretation of the statute prior to the agency’s rule. In Miccosukee Tribe of Indians of Florida v. United States, 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.

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. 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 2005 gave the federal circuit courts of appeal exclusive jurisdiction over permitting challenges to facilities or projects within its scope.

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, the defendant must have done affirmative acts that resulted in contamination; mere passive conduct was insufficient. 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.