EPA issued a rule on June 13, 2008 (73 Fed. Reg. 33697) clarifying that transfers of water from one watershed to another without subjecting the transferred water to intervening industrial, municipal or commercial uses do not subject those transfers to NPDES permitting requirements.
According to the rule, water transfers occur routinely in many different contexts across the United States. These transfers occur through tunnels, channels or pumps for such uses as providing public water supply, irrigation, power generation, flood control and environmental restoration. The question of whether or not an NPDES permit is required for water transfers arose because the transfers of water from water body to another typically move pollutants from the donor water to the receiving water. The rule is seen as a response to the U.S. Supreme Court’s decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).
There, the Supreme Court vacated an Eleventh Circuit decision which held that a Clean Water Act permit was required for transferring water from one navigable water to another. The Court remanded the case for further fact finding as to whether the two waters in question were “meaningfully distinct.” If they were not, an NPDES permit would not be required. The Court declined to resolve the question of whether water transfers require NPDES permits when water bodies at issue are meaningfully distinct. EPA’s rule concludes that water transfers from one water body to another do not result in the “addition of a pollutant,” but rather were intended by Congress to be regulated by state water resource management agencies and state non-NPDES authorities rather than the permitting program under Section 402 of the Clean Water Act.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.