EPA Proposes Water Transfer Rule
July 25, 2006
Roger W. Sims- Orlando
On June 7, 2006, the U.S. Environmental Protection Agency (EPA) issued a proposed rule providing that National Pollutant Discharge Elimination System (NPDES) permits are not required for transfers of water from “waters of the United States” to other “waters of the United States,” provided the transfer does not subject the water to intervening industrial, municipal or commercial uses. 71 Fed. Reg. 32887. Such transfers include routing water through tunnels, channels, or natural stream courses for public water supplies, irrigation, power generation, flood control and environmental restoration.
In 2004, the question of whether NPDES permits were necessary for water transfers went before the U.S. Supreme Court in South Florida Water Management District v. Miccosukee Tribe of Indians. The Court did not rule directly on the issue, generating uncertainty about the need for a permit. EPA concluded in 2005 that Congress intended water resource-management agencies and other state authorities to oversee water transfers, not the NPDES permitting program. The analysis by EPA is set forth in a memo from EPA Assistant Administrator for Water Ben Grumbles and EPA General Counsel Ann Klee dated August 5, 2005. The memo contains a detailed legal analysis and discussion of case law, and concludes that the exemption for water transfers is consistent with longstanding EPA practice and applicable law.
Some environmental groups object to the rule, noting that the exclusion does not apply to pollutants that the water transfer itself may introduce to the water. Some interested parties claim that EPA sped up its rule-making process in an effort to outflank pending court action and side with Florida’s sugar industry. Managing Attorney David Guest of the Earthjustice law firm’s Florida office said EPA’s proposed regulation would directly affect the 2004 case involving unhealthy flows of pollution into Lake Okeechobee, Florida’s largest freshwater lake.
The comment period for the proposed rule is open until July 24, 2006.
For more information, e-mail Roger W. Sims at
roger.sims@hklaw.com or call toll free, 1-888-688-8500.