November 01, 2016

What a Long Strange Trip It’s Been: The Saga of EPA’s Water Transfers Rule

Patrick Parenteau and Laura Murphy

On December 1, 2015, the U.S. Court of Appeals for the Second Circuit heard arguments in Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. Environmental Protection Agency (No 8:08-cv-05606), an appeal from the Southern District of New York’s ruling that overturned and remanded the Water Transfers Rule (WTR) to the Environmental Protection Agency (EPA). The WTR exempts inter-basin transfers from National Pollutant Discharge Elimination System (NPDES) permit requirements, even if the source water contains pollutants, provided the water has not been subjected to intervening industrial, municipal, or commercial uses. 40 C.F.R. § 122.3(i). The Second Circuit has twice held that the Clean Water Act (CWA or Act) contains no exception for discharges resulting from transfers of contaminated water from one body of water to another. Nevertheless, the Second Circuit panel did not seem to approach this case as a slam dunk.

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