New Court Decision on Water Transfers Reinstates EPA’s Existing Rule

A recent court decision provides a new milestone in an ongoing legal dispute over whether water transfers, such as a water system might use to move raw water between reservoirs, should require a NPDES permit.  These water transfers situations have long been controversial, especially when the water quality differs between the source and the receiving water body.
To provide some certainty to the process, EPA developed a Water Transfers Rule which stated that such transfers did not require a permit if the water was not exposed to contamination through some intervening industrial or commercial use.  Back in 2014, a lower court decision in favor of environmental groups and others challenging the EPA rule, voided that rule and set the stage for a lengthy new permit process for many public water systems.
In its most recent action, a split decision on appeal, the United States Second Court of Appeals overturned the lower court ruling and reinstated the rule.  The majority cited what is known as the Chevron doctrine, a court interpretation which gives great deference to EPA in making such decisions.  The theory being that EPA is expected to make interpretations about the requirements of the law, absent any explicit direction by Congress, and the Water Transfers Rule fits within this doctrine.  It is not known at this time whether further appeals will be made in the case.