States Sue EPA to Invalidate Rule Allowing Water Transfers without NPDES Permits

     Nine states filed a lawsuit Oct. 2, 2008 challenging the EPA's June 9, 2008 rule establishing that Clean Water Act (CWA) NPDES permits are not required for transfers of water from one body of water to another because the transfers do not add pollutants to navigable waters from an outside source.  New York is the lead plaintiff joined by Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, and Washington.  (New York v. EPA, S.D.N.Y., No. 1:08-cv-08430, Oct. 9, 2008). Because of some uncertainty under the CWA as to whether the proper forum should be a federal District Court or Circuit Court, suits were filed in both the U.S. District Court for the Southern District of New York and in the U.S. Court of Appeals for the Second Circuit. The lawsuits allege that EPA created a loophole in the CWA by refusing to control the transfer of polluted water from one water body to another, citing federal court decisions which have held that such transfers require regulation under the CWA. The States alleged that the introduction of water from one water body to another water body can cause a host of environmental problems, from harming fishing streams to spreading invasive species in the Great Lakes. Additionally, the rule could allow waters with high sedimentation to be discharged into reservoirs for drinking water.

     EPA's June 9, 2008 rule was its legal interpretation of the CWA concluding that Congress generally did not intend to subject water transfers to regulation under the NPDES permit program. The EPA reasoned that there is no "addition" of a pollutant that would trigger the CWA requirement to obtain an NPDES permit for additions of pollutants to navigable waters since any pollutants are already in the waters being transferred and are not being added from the outside by a point source. The rule, at 40 C.F.R. Part 122, defines water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. [73 Fed. Reg. 33,697 (6/10/08)).  EPA noted that historically water transfers have occurred routinely for a variety of water resource needs, including routing water through tunnels, channels, or natural stream courses for public water supplies, irrigation, power generation, flood control, and environmental restoration. 

     This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.