As expected, the U.S. EPA has issued its final rule exempting water transfers from Clean Water Act regulation. Federal regulation of water transfers and conveyances has been a contentious issue for several years. This is due, in part, to the ongoing myth that while the federal government manages water quality pursuant to the Clean Water Act, water quantity and supply management is left exclusively to the states. Of course these old adages are no longer completely true (if they ever were). It’s just another excuse for the current EPA administration to narrowly interpret the Clean Water Act to avoid federal regulation whenever possible. The water transfers rule is simply the latest move by the EPA to undermine using the Clean Water Act to protect and restore the nation’s water as Congress intended.
The water transfers rule exempts water transfers and conveyances from regulation under the Clean Water Act as a point source of pollution into the receiving water. The rule defines a 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. Under the new rule, if a water district transferred water from a highly polluted waterbody (such as Onondaga Lake in upstate New York, which is loaded with hazardous waste and nutrient pollution) by pipeline to a relative clean and pristine waterbody (such as nearby Skaneateles Lake, perhaps the cleanest of New York’s famous Finger Lakes) the water transfer would not need a Clean Water Act permit for discharging pollution into the clean waterbody.
There are two major problems with this rule. First, the rule is not consistent with the plain language of the Clean Water Act, which prohibits the discharge of pollutants from point sources (such as pipes and other conveyances) without a permit. Several federal courts have already ruled that transferring water from one waterbody to another waterbody can result in the addition of a pollutant into the receiving waterbody and thus a Clean Water Act permit is required. Second, the rule completely ignores the potential harm of mixing water from different waterbodies. If the source waterbody has high levels of chemical pollution, invasive species, or even turbidity, it can seriously impact the water quality of the receiving water.
The final rule basically follows EPA’s prior 2005 interpretation policy and 2006 proposed rule on exempting water transfers. However, federal courts have not been persuaded by EPA’s position and interpretation of the Clean Water Act. In Catskills Mountains Chapter of Trout Unlimited v. City of New York, 451 F.3d 77 (2nd Cir. 2006), several fishing and conservation organizations brought suit against New York City and its water supply department for discharging turbid water from the Schoharie Reservoir into the Esopus Creek via the Shandaken Tunnel without a Clean Water Act permit. Water in the Schoharie Reservoir contains suspended solids, so the discharges into the Esopus Creek are more turbid than the water in the Esopus Creek itself (turbidity qualifies as a pollutant under the Clean Water Act). The Esopus Creek is a well-known fly-fishing destination and trout are especially sensitive to turbidity (my mother lives just up the road from the Esopus and I’ll be fishing it later this month). The court held that because the water is artificially diverted from its natural course and travels several miles from the reservoir through the tunnel and into the creek, the Shandaken tunnel qualifies as a point source of additional pollutants under the Clean Water Act and is subject to permit requirements. The court expressly rejected the EPA’s position as provided in its 2005 interpretation policy and subsequent 2006 proposed rule. The Supreme Court declined to hear the case (see City of New York v. Catskill Mountains Chapter of Trout Unlimited, 127 S.Ct. 1373 (2007)).
Similarly, in Friends of the Everglades v. South Florida Water Management District, No. 02-80309 (S.D. Fla. 2006), environmental groups brought suit to prohibit the pumping of agricultural runoff into Lake Okeechobee without an Clean Water Act permit. Agricultural runoff has very high levels of phosphorus and other nutrient pollutants. The district court held that the pumping requires a Clean Water Act permit, since it discharges additional pollutants into a navigable waterbody. Again, the court rejected the EPA’s interpretation of the Clean Water Act and instead relied on the express language in the statute.
These prior cases should set up a successful challenge to the EPA water transfers rule. Earthjustice, which represented the environmental groups in the Florida case, has already attacked the rule in a press release, and I expect them to formally challenge it in court soon. The Great Lakes Environmental Law Center may also file a challenge, perhaps working with other interested parties in the region that share our concern for the integrity of natural waterbodies and risks of water transfers.
