November 15, 2018

Water Transfers

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Current Status | Background information | Decisions/court documents | Related Publications
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Water Transfers

 

Current Status

     
  

 

Supreme Court Denies Petition to Review Reinstatement of Water Transfers Rule. On February 26, 2018, the Supreme Court denied a petition for certiorari to review the decision of a split panel of the Second Circuit in Catskill Mountains Chapter of Trout Unlimited v. EPA. In Catskill Mountains Chapter of Trout Unlimited, the majority ruled to reinstate EPA’s 2008 Water Transfers Rule, holding that interbasin water transfers are exempt from CWA permit requirements. The Court applied Chevron to uphold the Rule, which states that water transfers—defined as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use”—are not subject to NPDES permitting. Critics of the rule argue that it allows for the transfer of polluted water into clean water bodies without an NPDES permit.

 

     
  

2nd Circuit denies reconsideration of water transfer decision: On April 18, 2017, the 2nd Circuit denied a motion for en banc review of its recent decision upholding EPA’s Water Transfer Rule in Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA. [See prior discussion elsewhere in this web site.]


 
  

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, No. 14-1823, 2017 WL 192707 (2d Cir. Jan. 18, 2017) – In a significant 2-1 ruling, the Second Circuit applied Chevron to uphold EPA’s Water Transfers rule, which states that water transfers—defined as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use”—are not subject to NPDES permitting.

     

Decisions/court documents

     
  

2nd Circuit denies reconsideration of water transfer decision: On April 18, 2017, the 2nd Circuit denied a motion for en banc review of its recent decision upholding EPA’s Water Transfer Rule in Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA. [See prior discussion elsewhere in this web site.]


 
  

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, No. 14-1823, 2017 WL 192707 (2d Cir. Jan. 18, 2017) – In a significant 2-1 ruling, the Second Circuit applied Chevron to uphold EPA’s Water Transfers rule, which states that water transfers—defined as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use”—are not subject to NPDES permitting.


 
  Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, No. 14-1823, U.S. Court of Appeals for the Second Circuit -  March 6, 2017, the Miccosukee Tribe of Indians of Florida, several states, and a number of environmental groups filed petitions asking the Second Circuit for en banc review of a 2-1 panel decision that revived an EPA rule allowing water to be transferred between basins without a permit, even if the water is contaminated.
     

Related Publications

     
   The future of Chevron? Second Circuit water transfer decision opens door to review
Trends May/June 2017

 
   NR&E Fall 2016 Issue
Topic: Water Conflicts

 
   LA County Flood Control District v. NRDC, Inc.: A rejection of joint and several liability under the Clean Water Act?
Trends May/June 2013

 
   Facts can be pesky things: SCOTUS takes up LA County Flood Control District v. NRDC
Trends January/February 2013

 
   The Clean Water Act Handbook, Third Edition
     

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