On February 26, the Supreme Court rejected the requests by states and environmental advocates to review the legality of EPA’s rule exempting water transfers from the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permitting program. The court’s denial of the two requests marks the end of a long battle over the validity of the 2008 rule.
The Water Transfers Rule defines an exempt 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.” This includes “routing water through tunnels, channels, and/or natural stream water features, and either pump or passively direct it for uses such as providing public water supply, irrigation, power generation, flood control, and environmental restoration.”
Suits challenging the rule have been winding their way through the federal courts for many years. In January 2017, the U.S. Court of Appeals for the Second Circuit upheld the rule in Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. EPA, et al. That decision reversed an earlier District Court decision which, had it been allowed to stand, would have invalidated the rule and required EPA to do further rulemaking on the subject.
The rule has split the opinion of states, with Western states – as well as AMWA and many water providers – supporting the rule and a coalition of seven states, led by the State of New York, opposing it. Challenging the Second Circuit opinion, the New York-led states filed a petition for Supreme Court review, arguing, “[T]he Rule allows point-source operators to transfer toxic water into pristine navigable waters without any NPDES oversight -- an 'absurd result' that contravenes Congress’s goal to preserve water quality in individual navigable waters.” Three environmental groups filed a similar petition, which was also rejected.