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Federal Judge Vacates Water Transfers Rule

In a possibly serious setback to water suppliers, Judge Kenneth Karas of the U.S. District Court for the Southern District of New York on March 28th 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 waterbody to another.
EPA’s Water Transfers Rule defines a water transfer as an activity that conveys or connects waters of the U.S. without subjecting the transferred water to intervening industrial, municipal or commercial use.
In his 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 also wrote that EPA’s analysis of the Clean Water Act “ignore[d] the statute’s environmental goals.”  The judge 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. EPA must now decide whether to appeal the decision or comply with Karas’ remand order and reevaluate the rule.
[Reprinted, with permission, from ECOSWire]