EPA Excludes Water Transfers From Clean Water Act Permit Requirements

June 2008

On June 13, 2008, the Environmental Protection Agency (EPA) finalized a rule to exclude water transfers from regulation under the Clean Water Act's National Pollutant Discharge Elimination System (NPDES) permitting program because transfers do not result in the “addition” of pollutants to U.S. waters. (National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule, 73 Fed. Reg. 33,697 (June 13, 2008) (to be codified at 40 C.F.R. pt. 122).) EPA's rule defines water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.

Background
The Clean Water Act requires NPDES permits in order to discharge pollutants into navigable waters, and “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.” The Act does not define “addition.” In 2004, the U.S. Supreme Court addressed the question of whether water transfers could result in the “addition” of pollutants to navigable waters. (South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).) In Miccosukee, the Court vacated a decision by the 11th Circuit which had held that a NPDES permit was required for transferring water from one navigable water to another. But the Court did not rule directly on the water transfer issue, and instead remanded the case for further fact-finding.

On August 5, 2005, EPA issued a legal memorandum that addressed the question of whether a water transfer's movement of pollutants from one water to another is the “addition” of a pollutant contemplated by the Clean Water Act. The memorandum concluded that Congress generally expected water transfers would be subject to oversight by water resource management agencies and non-NPDES State authorities. On June 7, 2006, EPA proposed a draft regulation based on the analysis contained in the memorandum to expressly state that water transfers are not subject to NPDES permits. EPA's final rule, published in the Federal Register on June 13, 2008, largely parallels its draft rule.

EPA's Final Rule
EPA's final rule excludes water transfers from NPDES permit requirements because transfers do not result in the “addition” of pollutants to U.S. waters. Usually, water transfers route water through tunnels, channels, and/or natural stream water features, and either pump or passively direct it for uses such as providing public water supply, irrigation, power generation, flood control, and environmental restoration. The routing of waters in this manner typically moves pollutants from the donor water body to the receiving water body. EPA concluded that this movement does not constitute an “addition” within the meaning of the Clean Water Act.

EPA reasoned that, taken as a whole, the statutory language and structure of the Clean Water Act indicate that Congress generally did not intend to subject water transfers to NPDES permits. Programs to manage water allocation existed at the State and local levels when Congress enacted the Clean Water Act to protect water quality, and Congress clearly expressed the Act's policy not to unnecessarily interfere with existing allocation programs. (Clean Water Act § 101(g).) Because subjecting water transfers to a federal permitting scheme could unnecessarily interfere with State and local decisions allocating water rights, EPA stated that Congress did not intend to require NPDES permits for transfers. Moreover, “addition” is a general term that is undefined by statute. Consequently, EPA concluded that it was reasonable to interpret “addition” as not including the mere transfer of water.

EPA assistant administrator of water Ben Grumbles stated: “Clean water permits should focus on water pollution, not water movement. EPA is committed to working with our state, tribal, and local partners to reduce environmental impacts associated with transfers and will continue to use all appropriate tools such as standards, best management practices, and watershed plans.”

EPA's final rule codifies California's existing practice of not requiring NPDES permits for water transfers. It should be noted, however, that if the transfer itself introduces new pollutants instead of merely routing pollutants that already exist in the water, a permit may be required.

The final rule is effective on August 12, 2008.

EPA's National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule