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EPA Proposes Regulatory Amendment to Exclude Water Transfers From NPDES Permitting

Beveridge & Diamond, P.C., June 8, 2006

On June 7, 2006, the Environmental Protection Agency (“EPA”) proposed to exclude certain water transfer-related discharges from federal regulation under the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  71 Fed. Reg. 32887 (June 7, 2006), available at http://www.epa.gov/fedrgstr/EPA-WATER/2006/June/Day-07/w8814.htm.  Pursuant to the proposed rule, the NPDES permitting requirements would not cover discharges from a water transfer if the transfer qualifies as “an activity that conveys waters of the United States to another water of the United States without subjecting the water to intervening industrial, municipal, or commercial use.”  Id. at 32895.  However, the proposed exclusion “does not apply to pollutants added by the water transfer activity itself to the water being transferred.”  Id.  

According to EPA, the proposal substantially mirrors its 2005 Interpretive Memorandum concerning the applicability of section 402 of the Clean Water Act (“CWA”) to water transfers and preserves the Agency’s longstanding approach to regulating point source discharges under the NPDES program.  Id. at 32892.  Thus, activities involving water withdrawal, use, and reintroduction, as well as discharges from waste treatment systems, are still subject to NPDES regulation, while the passage of water over structures such as dams is not.  Id.  Moreover, the water transfer exclusion would not affect the existing regulatory exemption of irrigated agriculture return flow from the definition of “point source” or alter the Agency’s position – espoused in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004) – that the CWA term “discharge of a pollutant” encompasses “point sources that do not themselves generate pollutants.”  Id

In consideration of the proposed rule, the Agency seeks comment on its definition of the term “water transfer.”  Specifically, EPA asks: “Does the definition properly achieve the Agency’s objective of excluding water transfers from NPDES permitting (as intended by Congress) while affirming section 402 jurisdiction over all other currently regulated activities? [And d]oes the proposed rule clearly distinguish between situations where the water transfer facility ‘adds’ pollutants to the water being transferred and thus must obtain a permit, and those situations where waters merely pass through the facility without the addition of any pollutant?”  Finally, EPA solicits comment on whether States should “have the discretion to issue a [NPDES] permit on a case-by case basis if a transfer would cause a significant impairment of a designated use and no State authorities are being implemented to adequately address the problem.”  Id. at 32892-93.  The Agency considered including such a provision in the proposed rule, but ultimately decided against it.  Id at 32893.  Nevertheless, EPA explains that, “regardless of whether it includes this designation authority in the final rule or not, States retain the authority under State law to regulate water transfers as they see fit, including requiring [non-NPDES authorized] permits for such transfers.  Comments on the proposed rule are due to EPA by July 24, 2006.

For additional information, please contact Richard Davis, rdavis@bdlaw.com, or Parker Moore, pmoore@bdlaw.com.

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