EPA Seeks To Exclude Water Transfers From Regulation Under NPDES Permitting Program

On June 1, EPA proposed a rule that would exclude transfers of surface water from the permitting requirements of the Clean Water Act's National Pollutant Discharge Elimination System (NPDES) program. Such transfers include routing water through tunnels, channels, or natural stream courses for public water supplies, irrigation, power generation, flood control, and environmental restoration.

"The Water Transfer Rule gives communities needed flexibility to protect water quality, prevent costly litigation and promote the public good," according to EPA Assistant Administrator for Water Benjamin H. Grumbles. "(T)his rule keeps the Clean Water Act focused on water pollution, not water allocation."

Thousands of water transfers currently in place across the country are vital to the water infrastructure. Whether a permit is needed under the NPDES has been an issue in numerous court cases in recent years. The proposed rule would define such transfers as the movement of water between bodies of water without subjecting the water to intervening industrial, municipal or commercial use.

The question of whether NPDES permits were necessary for water transfers went before the U.S. Supreme Court in South Florida Water Management District vs. Miccosukee Tribe of Indians (No. 02-626, March 23, 2004). The court did not rule directly on the issue, generating uncertainty about the need for a permit, the agency stated. EPA concluded in 2005 that Congress intended water resource-management agencies and other state authorities to oversee water transfers, not the NPDES permitting program. This proposed rulemaking would codify that conclusion.

Earthjustice, which has been litigating regulatory decisions that allow flows of pollution into Lake Okeechobee (Florida), said the proposed rule would exempt an entire class of water polluters from the Clean Water Act, allowing contaminants to be dumped into drinking water sources as well as lakes and streams by water transfer operations.

"In the face of irrefutable evidence that transfers of contaminated water pose grave public health threats, the EPA is trying to disguise disposal of polluted water as allocation of water for later public use. If it poisons you when you drink it, it's not allocation for public use," said Earthjustice attorney David Guest, from the organization's Tallahassee, Fla., office.

For additional information on the proposed rule, go to http://www.epa.gov/npdes/agriculture#water_transfer.

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