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EPA Proposes Rule Clarifying That NPDES Permits Are Not Required for Water Transfers

By: Alfred E. Smith
06/02/06

On June 1, 2006, EPA announced that it is proposing a rule to clarify that water transfers are excluded from regulation under the Clean Water Act’s National Pollutant Discharge Elimination System ("NPDES") permitting program. The proposed rule defines a water transfer as "an activity that conveys waters of the United States to another water of the United States without subjecting the water to intervening industrial, municipal, or commercial use." Such transfers include, inter alia, routing water through tunnels, channels, or natural stream courses for public water supplies, irrigation, power generation, flood control, and environmental restoration. The exclusion would not apply to pollutants that the water transfer itself might introduce to the water being transferred.

The question of whether or not an NPDES permit is required for water transfers has been of widespread concern, particularly in the arid western States, where such transfers are longstanding practices necessary to provide a safe and reliable water supply to a rapidly growing population. The United States Supreme Court addressed the issue in South Florida Water Management District v. Miccosukee Tribe of Indians et al., 541 U.S. 95 (2004). However, the Court left the matter unresolved, remanding the case for further fact-finding as to whether the two waters in question were "meaningfully distinct."

On August 5, 2005, EPA issued an agency interpretation clarifying that water transfers do not require NPDES permits under section 402 of the Clean Water Act. EPA noted that this conclusion is consistent with longstanding Agency practice and that Congress "intended to leave oversight of water transfers to water resource management agencies and the States."

EPA’s recent announcement confirms the Agency’s initiation of a formal rulemaking process to expressly exclude water transfers from regulation under the NPDES permitting program. EPA will accept comments on the proposed rule for 45 days.

For more information, click here.

Alfred E. Smith, II is a Partner in Nossaman's Los Angeles office who specializes in environmental, water and complex commercial litigation. He represents public and private water purveyors, major water users, corporations and public agencies on matters including environmental compliance, water rights disputes, conjunctive use, public utility regulation, groundwater management and litigation over allegedly contaminated water and soil. Alfred is a graduate of the Harvard Law School, and he is an appointed member of the Association of California Water Agencies’ (ACWA) Legal Affairs Committee. He can be reached at (213) 612-7800 or asmith@nossaman.com.

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