State Coalition Takes Issue with CWA Loophole

Attorney General Andrew M. Cuomo on Oct. 2 announced that he is fighting an illegal ruling by the U.S. Environmental Protection Agency (EPA) that could hurt New York's fishing industry and contaminate drinking water.

Cuomo is leading a coalition of nine states in suing EPA for creating an illegal loophole in the federal Clean Water Act by refusing to control the transfer of polluted water from one waterbody to another. The introduction of polluted water to another waterbody causes a host of environmental problems, from harming critical fishing streams to spreading invasive species in the Great Lakes; courts have held that these water transfers require regulation under the Clean Water Act. Despite court rulings, on June 9, 2008, the EPA issued a regulation exempting water transfers from the Clean Water Act's requirements.

"The Bush EPA continues to create environmental loopholes that will degrade New York's waterways, prevent fishermen and others from enjoying our streams, and put the Great Lakes at risk," said Cuomo. "Some of New York's most prized waterbodies – including the Long Island Sound, Lake Champlain, and the Hudson River – could be harmed by the EPA's illegal rule. As long as the actions of the Bush EPA break the law and threaten our environment, we will continue to fight back."

The EPA's new illegal Clean Water Act loophole would allow numerous, important sources of pollution to go uncontrolled. For example, sediment-laden water could be sent into clear drinking water reservoirs; chemical-laden waters could be dumped into waters used in farm irrigation; warm waters could be pumped into cold water habitats (such as trout streams); salt water could be transferred into fresh water; and invasive species can be introduced into waters not yet infested.

The challenge was filed in U.S. District Court for the Southern District of New York, with a companion filing in the U.S. Court of Appeals for the Second Circuit. Joining Cuomo in the action are the states of Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, and the Government of the Province of Manitoba, Canada. The suit seeks to have the court invalidate EPA's June 9, 2008 regulation and declare the water transfer loophole illegal.

In the last two months, Cuomo, supported by large state coalitions, has won two key rulings from federal appellate courts forcing the Bush EPA to live up to its Clean Water Act responsibilities. On Sept. 18, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of New York in an action challenging the EPA's failure to control toxic stormwater discharges from construction sites. On July 23, the same court ruled for New York in an action challenging EPA's failure to control the release of invasive species in ballast water discharges from cargo ships.

This case is being handled by Watershed Inspector General Philip Bein, and Assistant Attorneys General Kevin Donovan and Michael Myers of the Environmental Protection Bureau, under the supervision of Special Deputy Attorney General for Environmental Protection Katherine Kennedy.

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