District judge vacates water transfer rule
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April 09, 2014
District judge vacates water transfer rule

In an opinion that could expand the use of permitting under the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES) program, a federal district court judge vacated EPA’s water transfer rule, which was issued in 2008 during the G.W. Bush administration (Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. EPA

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In a long and multilayered opinion, Judge Kenneth M. Karas of the U.S. District Court for the Southern District of New York said that the water transfer rule illegally exempted transfers of waters between waters of the United States from NPDES permitting and remanded the rule to the Agency “to the extent that EPA did not provide a reasoned explanation for its interpretation.” 

 

Outside addition

EPA’s thinking at the time was that a discharged pollutant could be regulated only if it was added to a regulated water of the United States from the “outside world,” that is, from a source other than a water of the United States.  This meant that a water transfer from one U.S. water to a second water body could not be regulated even if the transfer conveyed pollutants that were not previously present in the second water body. 

The rule added that when water transferred between waters of the United States had been subjected to intervening industrial, municipal, or commercial use, NPDES permitting was then required.  But a water pumping station, pipe, canal, or other structure used solely to facilitate the transfer of the water is not an intervening use, according to the EPA.

Environmental groups challenged EPA’s rule in multiple cases that were bundled in the New York district court.  

Related cases

One issue raised by Judge Karas was whether a water maintained its status as a water of the United States when it is in transit between two U.S. waters.  This question has already been the subject of rulings by several U.S. appeals courts.  For example, in National Wildlife Federation v. Consumers Power Co. (1988), the 6th Circuit held that the water remained a water of the United States even if it passed through pipes and ditches on its way to the second water.  But in Dubois v. U.S. Department of Agriculture, (1996), the 1st Circuit held that water “lost its status as waters of the United States” when it “le[ft] the domain of nature,” i.e., when it left the navigable water body.  In general, Karas’s ruling favored the reasoning of the 1st Circuit.

Unitary water theory

In addition, Karas notes that the water transfer rule is related to the unitary waters theory, which effectively holds that water lifted from a water body and then dropped back into that body cannot constitute a discharge of pollutants from a point source.  Karas states that EPA’s interpretation relies on that theory even though the Agency does not explicitly depend on the theory in its water transfer rule.  That’s one reason the rule fails, according to Karas. 

“…[T]o the extent that EPA’s interpretation relies on the assumption of the correctness of the unitary waters theory – or at least the aspect of that theory that it is impossible to ‘join’ or ‘unite’ two navigable waters in a way that causes a ‘discharge’ – the Court rejects its interpretation because agencies deserve deference only for reasonably explained choices, and not for assumptions.”

State role

Karas also found that the water transfer rule placed an unreasonable burden on states when interstate transfers occurred.  The EPA had argued in the rule that removing interstate water transfers from the NPDES program was consistent with Congress’s general direction against unnecessary federal interference with state allocation of water rights and states’ flexibility on handling water transfers.  Supporters of the water transfer rule argued that interstate water pollution disputes could be resolved through other means, such as interstate water pacts and state common law nuisance claims.  Karas found that this line of thought ran contrary to the purpose of the CWA.

“EPA fails to explain how its decision is consistent with Congress’s specific intent that the NPDES program would provide a forum for resolving these disputes…and with Congress’s intent – in CWA section101(g) – that EPA ‘co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources,’” wrote Karas.

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