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Second Circuit Court of Appeals Joins the Eleventh Circuit in Upholding EPA’s ‘Water Transfers Rule’

The Second Circuit Court of Appeals recently held that the U.S. Environmental Protection Agency’s (EPA) “Water Transfers Rule,” which exempts water transfers from regulation under the National Pollutant Discharge Elimination System (NPDES) permitting program was reasonable and therefore reversed the District Court’s ruling to the contrary. [Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. Environmental Protection Agency, ___F.3d___, Case No. 14-1823 (2nd Cir. Jan. 18, 2017).]

The federal Clean Water Act (CWA) prohibits the “discharge of any pollutant by any person unless done in compliance with some provision of the Act.” Under the CWA, the discharge of a pollutant is “any addition of any pollutant to navigable waters from any point source.” The primary provision of the CWA provides that discharge may be allowed under a NPDES permit. With narrow exceptions, discharging a pollutant into “waters of the U.S.” or, alternatively, its “navigable waters,” is unlawful.

The Second Circuit’s ruling is consistent with that of the Eleventh Circuit (as it includes similar cases consolidated from other Circuits) in upholding EPA’s Water Transfers Rules, which essentially exempt water transfers from NPDES permitting system requirements. While it is unclear if other Circuit’s will follow suit, those currently involved in water transfers will likely be able to avoid substantial costs and liability risks associated with NPDES permits for water transfers. The court’s decision is accessible online at: available at: http://cases.justia.com/federal/appellate-courts/ca2/14-1823/14-1823-2017-01-18.pdf?ts=1484753412

(Danielle Sakai, Miles Krieger)

Environmental, Energy and Climate Change Law & Regulation