Working on behalf of the Michigan Council of Trout Unlimited, the Great Lakes Environmental Law Center is challenging the U.S. EPA’s new rule exempting water transfers from Clean Water Act regulation. The rule violates the plain language of the Clean Water Act and would open the door to more invasive species and water pollution. For these reasons, the Great Lakes Environmental Law Center has filed a petition in the U.S. Court of Appeals seeking an order vacating the new EPA rule.
The EPA rule, formally titled “National Pollutant Discharge Elimination System (NPDES) Water Transfer Rule,” exempts water transfers from one waterbody to another from the federal Clean Water Act’s permitting and regulatory requirements. Under the new rule, the nation’s rivers, streams, and lakes would be at risk from the unregulated exchange of pollutants from one waterbody to another, threatening healthy, pristine waters with the introduction of invasive species, toxic algae, chemical pollutants, excess nutrients, turbidity, and alteration of habitat (such as introducing warm water into a cold water stream or salt water into fresh water). Federal courts in New York and Florida have already ruled that the Clean Water Act applies to water transfers, rejecting the EPA’s arguments. Despite these clear court rulings, the EPA has refused to apply the Clean Water Act to regulate potentially harmful water transfers.
The Great Lakes Environmental Law Center filed the petition on behalf of the Michigan Council of Trout Unlimited, joined by Midwest Environmental Advocates on behalf of Clean Water Action Council of Northeastern Wisconsin. (Huge thanks to Great Lakes Environmental Law Center board chair Kathryn Loomis and Wayne Law student Jim Roush for their excellent work.) Separate challenges have been filed by the Pace Environmental Law Clinic on behalf of a coalition of environmental groups led by the Catskill Mountains Chapter of Trout Unlimited and by Earthjustice on behalf of the Florida Wildlife Federation. Nine states (including Michigan) and the province of Manitoba have also challenged the EPA rule. These separate challenges will all be consolidated in one court proceeding, and I fully expect the court to strike down the EPA’s rule and enforce the Clean Water Act to protect and restore the nation’s water as Congress intended.