A ruling by the U.S. District Court for the Southern District of New York on March 28, invalidating a Bush-era EPA rule exempting transfers of water between two water bodies from National Pollutant Discharge Elimination System (NPDES) permitting requirements, could expose entities involved in such transfers—irrigation districts, drinking water utilities, stormwater systems, cities, counties and others—to citizen suits and other Clean Water Act (CWA) enforcement proceedings. Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 44 ELR 20068 (S.D.N.Y., No. 08-CV-5606, -8430, 3/28/2014). The Court remanded EPA’s 2008 rule to EPA for reevaluation.

In 2003, the Supreme Court ruled in South Florida Water Management District v. Miccosukee Tribe of Indians that water transfers from one part of a water body into another part of the same water body do not require a permit because there has been no “discharge” of a pollutant into waters of the U.S.  The EPA rule extended that rationale to transfers of water from one water body into another, finding that Congress intended to exempt water transfers from the NPDES program and from the CWA’s prohibition against unpermitted discharges of pollutants.  The Trout Unlimited ruling by Judge Kenneth R. Karas held that EPA misread the CWA.  Judge Karas ruled that even when the transferred water meets state water quality criteria, the transfer into a different water body risks introducing foreign species into non-native waters and disturbing the natural sediment, nutrient and other balances in the recipient water body.  A blanket exemption from NPDES permitting requirements, therefore, runs afoul of the prohibition in the CWA against the discharge of pollutants without a permit.

The Trout Unlimited ruling is the first District Court ruling adjudicating the legality of a CWA rule since the Supreme Court decided in Decker v. Northwest Environmental Defense Center that District Courts have jurisdiction to adjudicate legality of CWA rules under some circumstances.  The Eleventh Circuit had previously ruled in Friends of the Everglades v. EPA that the water transfer rule challenge should be heard in District Court, not originally in the Court of Appeals.

Because the water transfer exemption has been in place since 2008—though under constant challenge—there could be a large number of systems operating under the assumption that such transfers do not require a permit.  Judge Karas did not stay his ruling, so it could be used to support CWA citizen suits, or State enforcement actions, challenging such transfers without a permit.

For more information on the Trout Unlimited case, or for other questions regarding the Clean Water Act, contact Steve O’Day or Andy Thompson.