Significant Development – Federal Court Affirms EPA Water Transfer Rule

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With the backdrop of today’s confirmation hearing of Scott Pruitt, Trump’s nominee for the  U.S. EPA, the 2nd Circuit Court of Appeals rendered a decision today affirming EPA’s long-standing water transfer rule that exempts water transfer from the Clean Water Act permitting program.  The case originates from a citizen suit action against the City of New York, whose 9 million residents receive their drinking water from the Catskill Mountain watershed, which is conveyed through an underground tunnel.  This is a significant case with far-reaching implications for many communities around the Nation who are dependent upon water transfers.

Here is a link to the court’s 91-page decision, which held that EPA’s rule is reasonable in the light of the ambiguity of the statute.  In so ruling, the court noted

The Act does not require that water quality be improved whatever the cost or means, and the Rule
preserves state authority over many aspects of water regulation, gives regulators flexibility to balance the need to improve water quality with the potentially high cost of compliance with an NPDES program, and allows for several alternative means for regulating water transfers.  While we might prefer an interpretation more consistent with what appears to us to be the most prominent goals of the Clean Water Act, Chevron tells us that so long as the agency’s statutory interpretation is reasonable, what we might prefer is irrelevant.