EPA Issues Rule Clarifying That Clean Water Act Permits Not Needed for Water Transfers
June 18, 2008
Steven Richard Kelton - Washington
Lawrence R. "Larry" Liebesman- Washington
On June 9, 2008, EPA issued a final rule that excluded “water transfers” from the Clean Water Act’s National Pollution Discharge Elimination System (NPDES) permit requirements. EPA defines “water transfer” as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.” The rule will take effect 60 days after publication in the Federal Register on June 13 (by August 12). This rule codifies a 2005 EPA policy that was issued following the U.S. Supreme Court’s decision in South Florida Water Management District v. Miccosukee Tribe. The rule covers transfers for many purposes such as public water supply, irrigation, power generation, flood control and environmental restoration.
Issues Affecting Control Over Water Allocation
EPA reviewed the Clean Water Act’s legislative history and case law in concluding that water transfers do not normally involve “additions” of pollutants that require Clean Water Act NPDES permits, unless there was an intervening industrial, municipal or commercial use. EPA noted that requiring NPDES permits for such transfers would upset the “balance Congress created between federal and state oversight of activities affecting the nation’s waters,” citing to various provisions of the Act such as section 101(g) which states that the Clean Water Act is not to be construed in a manner to unduly interfere with the ability of states to allocate water within their boundaries. The rule, however, does provide examples of when NPDES permits would be required. One such example is where a drinking water treatment facility withdraws water from streams, rivers and lakes and removes solids to make the water potable and then discharges the treated water. EPA noted that while courts in the D.C. Circuit have held that water flowing through dams and hydroelectric facilities does not require permits, courts in the First and Second Circuits have held that water transfers between “distinct” waters of the United States involve the “addition” of pollutants, therefore requiring permits for the transfer. Several environmental groups have announced that they will challenge this rule shortly so we can expect that EPA’s interpretation will ultimately be decided by the federal courts.
Demands for Water Are Increasing
This rule and the outcome of any future litigation will have a significant impact on water districts and other water users. Inter-basin water transfers through various diversion structures are a necessity for countless water districts around the country, especially in areas where the demand for water outpaces historic localized supply. Should the rule be overturned, requiring NPDES permits could have a profound effect on the ability of these agencies to provide water for many necessary uses such as drinking water and irrigation.
For more information, email Larry Liebesman at larry.liebesman@hklaw.com or Steve Kelton at steve.kelton@hklaw.com, or call toll free, 1.888.688.8500.