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Transfer Of Water Violates Clean Water Act

By: Alfred E. Smith
12/18/06

In a decision of significant importance to water suppliers throughout the country, the United States District Court for the Southern District of Florida recently ruled that National Pollutant Discharge Elimination System ("NPDES") permits are required for water transfers that add a pollutant to the receiving water body, even where the transfer introduced no new pollutants to the water being diverted.

The case was filed by environmental groups, including Friends of the Everglades and Fisherman Against Destruction of the Environment. These plaintiffs sued the South Florida Water Management District claiming that the District violated the Clean Water Act by using three pump stations to convey water from several canals to the southern end of Lake Okeechobee. A number of parties intervened in the action, including the United States Environmental Protection Agency. The United States maintained it had a compelling interest in the litigation because for decades the U.S. Army Corps of Engineers built a network of levees, water storage areas, pumps and canal improvements in the area; and the pump stations at issue play an important role in flood control, water supply and water management efforts.

The court’s decision is at odds with the proposed rule adopted by EPA finding that water transfers do not require NPDES permits. The court ruled that an NPDES permit is required, even though the opinion acknowledged that the "diversions at issue transfer water without subjecting the water to any intervening industrial, municipal or commercial use;" and even though "the pump stations do not introduce anything to the water as it moves through the stations."

The court deferred final judgment pending further proceedings to consider plaintiffs’ request for injunctive relief. The opinion notes it is "unclear" what relief could be granted to Plaintiffs, noting that shutting down the pump stations would result in "massive flooding."

The decision could have significant implications on the cost and treatment requirements for water transfers, particularly in the arid western states where engineered diversions among water bodies are longstanding, necessary practices. Noting the Wallop Amendment and the historic deference given to States and local authorities in matters of water use and allocation, the court did, however, acknowledge that its decision was limited to the facts before it. The court stated that requiring permits for "analogous activities could potentially cripple water management activities throughout the country, particularly in the West;" and that "[n]othing in the Court’s decision will preclude parties who represent other states’ water interests from pursuing their day in court."

To view the court’s decision, 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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