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Environmental Law Update

Environmental Law Update Editor: Rafe Petersen, Holland & Knight LLP, 2099 Pennsylvania Avenue, N.W., Suite 100, Washington, DC 20006-6801, rafe.petersen@hklaw.com.

  Environmental Law Update provides information on developments in environmental law as it applies to property, probate, and trust matters. The editors of Probate & Property welcome information and suggestions from readers.

 

U.S. Environmental Protection Agency Concludes That Water Transfers Are Not Subject to Clean Water Act

In August 2005, the U.S. Environmental Protection Agency (EPA) issued a memorandum interpreting the Clean Water Act’s applicability to water control facilities that convey or connect navigable waters. The purpose of the memorandum was to address issues left open by the Supreme Court’s 2004 decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), in which the Court wrestled with the question of whether the movement of water containing pollutants from one connected water body to another warrants a Clean Water Act (CWA) permit. In the memorandum, EPA concluded that Congress intended to leave the oversight of water transfers to state and local authorities and that federal National Pollutant Discharge Elimination System (NPDES) permits would not be required for such transfers. EPA also addressed the issue of connected water systems and whether transfers would constitute an “addition” of pollutants to a receiving water, noting that Congress, in enacting the CWA, gave great deference to state and local water management programs. Finally, EPA indicated that the agency intends to adopt rules on water transfers.

The issue of how the CWA allocates responsibility between the federal government and the state and local agencies is very contentious and has sparked litigation by numerous groups. EPA’s position, although not as binding as a regulation would be, has an effect on thousands of activities including transfers where water is directed through tunnels, channels, or streams to serve municipal flood control and water supply needs, agricultural irrigation, and other commercial uses, as well as major water diversion projects in Florida and the West.

South Florida Water Management District v. Miccosukee Tribe of Indians

In South Florida Water Management District v. Miccosukee Tribe of Indians, the Miccosukee Indian Tribe alleged that the South Florida Water Management District was illegally dumping pollutants into Florida’s Everglades without a necessary NPDES permit. The tribe asserted that the pumping of phosphorous-contaminated water from a canal into a water conservation area constituted an “addition of a pollutant from a point source.” Without the pump station, Broward County would flood. The water being pumped was highly polluted, however, containing levels of phosphorous up to 10 times higher than the applicable water quality standard.

In an 8-to-1 decision authored by Justice O’Connor, the Court reversed the Eleventh Circuit’s decision that the district’s operation of the S-9 pump required a permit to transfer water from the C-11 canal into Water Conservation Area (WCA) 3. While vacating the lower court’s decision, however, the Court found that further factual development was necessary to determine if the canal and WCA-3 were essentially the same water body.

The Court focused primarily on the question of whether or not a permit would be required if the C-11 canal and WCA-3 were considered the same body of water. This stems from the CWA’s definition of a pollutant discharge as any “addition” of any pollutant to navigable waters from any point source. The federal government (as amicus) contended that all water bodies that are “navigable waters” under the CWA should be viewed unitarily for purposes of NPDES permitting. Given that the CWA requires NPDES permits only when a pollutant is added to navigable waters, the government asserted that permits are not required when water from one navigable body is discharged, unaltered, into another navigable body. The Court noted that the government “suggests that we adopt the ‘unitary waters’ approach out of deference to a longstanding EPA view that the process of ‘transporting, impounding, and releasing navigable waters’ cannot constitute an ‘“addition”’ of pollutants to ‘“the waters of the United States.”’” The government, however, did “not identify any administrative documents in which EPA has espoused that position.” The Court found that “[b]ecause WCA-3 and C-11 are both navigable waters, adopting the unitary waters approach would lead to the conclusion that the District may operate S-9 without an NPDES permit. But despite its relevance here, neither the District nor the Government raised the unitary waters argument before the Court of Appeals or in their briefs respecting the petition for certiorari.” Thus, the Court directed the lower court to reconsider the district’s argument that the waters in the canal and in WCA-3 are essentially the same body of water and that moving water from one navigable body of water to another does not require a federal permit.

The EPA Memorandum

The memo was to EPA regional administrators from Benjamin Grumbles, EPA assistant administrator for water, and Ann Klee, EPA’s general counsel. Seizing on the Court’s invitation to provide an “administrative” position on the subject of jurisdiction over water transfers, Grumbles and Klee took the opportunity to “confirm the Agency’s longstanding practice and conclu[sion] that Congress intended for water transfers to be subject to oversight by water resource management agencies and State non-NPDES authorities, rather than the permitting program under section 402 of the CWA.” Memo at 3.

The memo makes clear that literally thousands of projects require water transfer, whether for the complex system of canals, levees, pumps, and reservoirs in Florida, or New York State’s municipal water system, or farmers receiving irrigation for their crops. The authors stated that they were aware of only a limited number of circumstances in which NPDES permits were required for such activities. But the memo makes clear that it does not apply to withdrawal of waters for industrial, municipal, or commercial use or the reintroduction of the intake water from such uses, which remain subject to permit requirements.

Reasoning from basic statutory interpretation and legislative history, Grumbles and Klee argue that the CWA recognizes that the states have primary responsibility for the “development and use (including restoration, preservation, and enhancement) of land and water resources. . . .” Memo at 5 (citing 33 U.S.C. § 1251(b)). Grumbles and Klee interpreted this as “Congress’ general direction against unnecessary Federal interference with State allocation of water rights.” Id. at 6. They conclude that subjecting such essential components of the nation’s infrastructure for delivering water to the CWA permitting process would unnecessarily interfere with state decisions on water rights.

The authors also noted that section 402 authority is predicated on a “discharge of a pollutant,” which requires an “addition” into the water in question. Again referring to the necessary deference to state and local agencies in water allocation issues, they concluded that it is “reasonable to interpret ‘addition’ as not generally including the mere transfer of navigable waters.” Memo at 7. Further, local agencies should not be “saddled” with curing regional water pollution problems that they themselves did not create.

Most important, the memo sets forth the test for determining whether an “addition” has occurred. Memo at 15. To be “meaningfully distinct” (and thereby outside of the scope of the CWA), (1) the waters must be distinct (that is, not hydrologically connected) and (2) the distinction between them must be “meaningful,” which involves, in part, analysis of whether the transfer would have a significant effect on water quality that is not being addressed by states and water resource agencies and analyses of the similarities of the quality of the two waters.

Conclusion

EPA’s interpretation of its jurisdiction is significant to thousands of water transfer projects nationwide. Although nonbinding until codified as a rule, this administrative position should cause the EPA staff to allow parties such as state water authorities, farmers, and commercial users to forgo the costly and time-consuming permit process. Yet prongs of the “meaningfully distinct” analysis will likely be subject to considerable disagreement when implemented. Further, it remains to be seen who will address the presence of these pollutants if not via the permitting process. For these reasons, it is probable that the memorandum and any rulemaking progeny will be litigated.

 

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