Transfer of Polluted Water Into Clean Water Is Incompatible With Statute, States Say

Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...

By Amena H. Saiyid

Dec. 26 — Unregulated transfer of polluted water into clean water is incompatible with the Clean Water Act's basic goals of protecting the quality of individual water bodies, nine states and one Canadian province jointly told a federal appeals court.

In a brief filed Dec. 23 with the U.S. Court of Appeals for the Second Circuit, the states of Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, New York and Washington as well as the province of Manitoba claimed that a 2008 Environmental Protection Agency rule that excludes inter-basin transfers from the National Pollutant Discharge Elimination System permitting requirement is contrary to the Clean Water Act and prior court rulings.

“Removing dirty inter-basin transfers from NPDES permitting would be incompatible with the Act’s clean-water goals and basic structure, which protects the individualized water quality of each navigable waterway and provides downstream States with unique administrative remedies to protect their waters against pollutants originating from transfers in upstream States,” they wrote in their joint filing.

The states and Manitoba want the Second Circuit to uphold the remand of the water transfers rule handed down in March 2014 by the U.S. District Court for the Southern District of New York.

The district court remanded the 2008 water transfer rule to the EPA, saying the agency didn’t provide a reasoned explanation for its interpretation of transfers under the Clean Water Act.

EPA, Others Seek Review of Remand 

The EPA, New York City, western states, Alaska and several water districts asked the Second Circuit in June to review the remand of the rule, which allows water that has been transferred from one point to another without being subjected to intervening industrial, municipal or commercial use to be permanently exempted from the NPDES permitting requirements.

Water transfers include routing water through tunnels, channels or natural stream courses for public water supplies, irrigation, power generation, flood control and environmental restoration.

Environmental groups—including Riverkeeper Inc., the Catskill Mountains Chapter of Trout Unlimited Inc., Earthjustice representing the Sierra Club, the Florida Wildlife Federation and Friends of the Everglades—are defending the district court's ruling.

Transfers Lead to Contamination 

In their brief, also dated Dec. 23, the environmental groups warned that the EPA rule will allow salt water to be transferred into fresh water, sediment-laden water to be sent into clear drinking water reservoirs, warm water to be pumped into cold water habitats, chemical-laden waters to be dumped into waters used in farm and ranch irrigation and invasive species to be transferred into waters not yet infested.

They said Congress in the Clean Water Act expressly excluded agricultural stormwater and return flows from irrigation water as well as water injected into a well to facilitate production of oil or gas.

“Since Congress specifically excluded these categories of discharges from the discharge prohibition and regulation under the NPDES program, under the canon of expressio unius est exclusio alterius, all other point source discharges of pollutants must be presumed to be encompassed within the discharge prohibition and NPDES permit requirements,” the environmental groups said. The Latin phrase “expressio unius est exclusio alterius” indicates that items not on the list are assumed not to be covered by the statute.

The nine states and the Canadian province as well as the environmental groups want water transfers to be subjected, not exempted from NPDES permits.

States Remind Court of Earlier Rulings 

The states reminded the Second Circuit that it has twice held that the Clean Water Act contains no exception for discharges resulting from transfers of contaminated water from one body of water to another.

The EPA for its part continues to maintain that the water transfers rule is a “reasonable interpretation” of a statute that is ambiguous. Relying on the deference granted to the executive branch under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), the EPA said it used its discretion to exempt water transfers from NPDES permits.

States that support the EPA stance say that a remand of the water transfer rule would impose unnecessary regulatory burdens, requiring them to issue more permits. They also see it as an infringement of Western state water rights. The Second Circuit has given the EPA until Jan. 26 to file a response brief to the environmental groups' claims.

Decade-Long Dispute

The 2008 rule exempting water transfers from NPDES permit requirements was prompted by disputes over transfers of phosphorus-contaminated water from canals in the Everglades into Lake Okeechobee by the South Florida Water Management District, as well as transfers within the New York City drinking water supply's Catskill/Delaware watershed and other water transfers by municipal water systems and corporations.

The Second Circuit has already ruled twice on the EPA's attempts to avoid issuing permits for water transfers, once in 2001 and again in 2006. The Supreme Court ultimately denied review in 2007.

A related challenge involving transfer of water from one part of the waterway within the Los Angeles Flood Control District also was taken up by the U.S. Court of Appeals for the Ninth Circuit, which ruled in favor of requiring NPDES permits (L.A. Flood Control Dist. v. NRDC, 133 S. Ct. 710, 75 ERC 1641, 2013 BL 4614).

The Supreme Court in January 2013 overturned the Ninth Circuit decision, saying discharging polluted water from one part of a waterway to another part of the same waterway doesn't require a permit under the Clean Water Act L.A. Flood Control Dist. v. NRDC, 133 S. Ct. 710, 184 L. Ed. 2d 547, 75 ERC 1641, 2013 BL 4614, (2013);.

The Supreme Court in overturning the Ninth Circuit decision, cited its 2004 ruling in S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians,541 U.S. 95, 105, 58 ERC 1001 (2004)).

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The joint brief filed by the nine states and Canadian province in Catskill Mountains chapter of Trout Unlimited v. EPA is available at http://www.bloomberglaw.com/public/document/Catskill_Mountains_Chapter_of_v_United_States_Environmental_Pr_Do.

The joint brief filed by the environmental groups in Catskill Mountains chapter of Trout Unlimited v. EPA is available at http://www.bloomberglaw.com/public/document/Catskill_Mountains_Chapter_of_v_United_States_Environmental_Pr_Do/1.