In a brief filed Dec. 23, nine states and one Canadian province requested that the U.S. Court of Appeals for the Second Circuit affirm a district court’s determination that the 2008 Water Transfers Rule is an unreasonable and arbitrary interpretation of the Clean Water Act and should therefore be invalidated.
The U.S. Environmental Protection Agency’s Water Transfers Rule currently excludes inter-basin transfers from National Pollutant Discharge Elimination System (NPDES) permit requirements. This rule allows Waters of the U.S. to be routed through tunnels, natural stream courses, or other means for irrigation, flood control, and more without an NPDES permit if the water has not been subjected to intervening industrial, municipal, or commercial uses. EPA maintains that the Water Transfers Rule is a reasonable interpretation of statutory language that is ambiguous in the Clean Water Act.
However, nine states — Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, New York, and Washington — as well as the Canadian province of Manitoba filed the brief and say the rule explicitly disagrees with prior court rulings and the Clean Water Act. The groups say that water transfers can convey contaminants and invasive species that can affect the individual water quality of each navigable waterway. The Water Transfer Rule also removes administrative remedies upstream states can use to protect their waters against pollutants originating from transfers in upstream states.
In March 2014, the U.S. District Court for the Southern District of New York remanded the water transfer rule to the EPA, asking the agency to provide a reasoned explanation for its interpretation of transfers under the Clean Water Act. The states and Manitoba want the Second Circuit court to uphold the remand of the water transfer rule.
Environmental groups also filed a separate brief in support of requiring NPDES permits for water transfers.
In June of 2014, however, EPA, New York City, western states, and several water districts had asked the Second Circuit to review the remand of the rule. Were the Water Transfers Rule invalidated, states would have to issue more permits. Issuing permits for water transfers could also be seen as an infringement on Western water rights. Read more.