In a possibly serious set-back to water suppliers, on March 28 Judge Kenneth Karas of the U.S. District Court for the Southern District of N.Y. vacated and remanded EPA's 2008 rule excluding water transfers from regulation under the Clean Water Act NPDES permitting program. Unless the ruling is stayed, water suppliers may be required to obtain NPDES permits to convey untreated water from one body to another.
EPA's Water Transfers 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. Therefore, water transfers require no NPDES permits. Under EPA's reasoning, when a pollutant is conveyed along with waters of the United States and nothing new is added to those waters, no permit is needed. Further, in promulgating the rule, EPA asserted that Congress did not intend the Clean Water Act to govern such transfers of water.
In challenges to federal rules, courts often defer to the agency that promulgated the rule. However, in his March 28 decision in Catskills Mountains Chapter of Trout Unlimited, et al v. EPA, et al, Judge Karas ruled that EPA's analysis of Congress' intent and the Clean Water Act itself are flawed and, therefore, EPA's policy is arbitrary and capricious. Karas, a George W. Bush appointee, also wrote that EPA's analysis of the Clean Water Act "ignore[d] the statute’s environmental goals." The judge also described EPA's assertion that most of the thousands of water transfers in the United States do not result in any substantial impairment as "entirely unsupported...by any kind of analysis—scientific, technical, legal, or otherwise—that would allow the Court to accept...EPA’s [policy.]"
The case in question is a consolidation of two challenges to the EPA rule, one by several environmental groups and recreational water users and the other by the States of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri and Washington. The decision is the latest in a long line of cases beginning in 2000 with the Catskills Mountains Chapter of Trout Unlimited's suit against the City of New York and the 2002 Miccosukee Tribe of Indians' suit against the South Florida Water Management District (SFWMD). In previous litigation, AMWA filed amicus briefs in support of New York City and SFWMD.
New York City and SFWMD were intervenors in the case and have the right to appeal the decision. Meanwhile, EPA must now decide whether to appeal the decision or comply with Karas’ remand order and reevaluate the rule.