Clean Water Act NPDES Water Transfer Issue: The Implications for the Water Supply and Water User Communities

• Date: 01 March 2009

3-2009 NEWS & A NALYSIS 39 ELR 10181

C O M M E N T S

Clean Water Act NPDES Water Transfer

Issue: The Implications for the Water

Supply and Water User Communities

by Lawrence R. Liebesman and Steve Kelton

Lawrence R. Liebesman is a partner and Steve Kelton is an associate at Holland & Knight LLP, Washington, D.C. e authors

thank Andrea Becker, University of Florida law student and summer intern at Holland & Knight LLP, for help with this Article.

The Clean Water Act (CWA)1 prohibits “the d ischarge of

any pollutant” into waters of the United States, except

as otherwise authorized under the Act.2 A “discharge

of a pollutant” is dened as “any addition of any pollutant to

navigable waters from any point source.”3 e national pollut-

ant discharge elimination system ( NPDES) permit program

regulates point source discha rges of pollutants into waters of

the United States. e issue of whether water transfers are sub-

ject to NPDES permit requirements has been surrounded by

considerable controversy. e question is of particular concern

to the water supply and user communities because transbasin

transfers of water from one water body to another for munici-

pal, agricultural, and commercial purposes, among other

activities, are essential for meeting those needs.

e U.S. Environmental Protection Agency (EPA) rst

addressed this issue in 1975 with an interpretation stating that

an NPDES permit was required when irrigation ditches dis-

charge into navigable water, even if the irrig ation ditches also

qualify as navigable waters.4 e opinion was based on EPA’s

interpretation of the plain meaning and legislative intent of

the C WA. However, that opinion dealt with a narrow issue

and did not address transfers that merely convey navigable

waters. e opinion also stated that to the extent the opinion

could be interpreted to apply more broadly to water transfers,

it was superseded by EPA’s subsequent interpretations speci-

cally addressing such transfers.

In 1977, the U.S. Congress amended the CWA, adding a

provision conrming the states’ primary authority over water

allocations.5 e amendments were followed by a 1978 EPA

memorandum stating that the amendments did not prohibit

EPA from taking actions required to protect water quality of

1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

2. Id. §1311(a).

3. Id. §1362(12)(A).

4. In re Riverside Irrigation Dist., Op. No. 21, 1975 WL 23864 (EPA O. Gen.

Counsel June 27, 1975).

5. Pub. L. No. 95-217, 91 Stat. 1566 (1977).

the nation’s waters even if such actions incidentally aected

state water rights and state usages of water.6

Subsequently, courts began to grapple with the issue of what

constitutes the “addition of a pollutant” in water transfers. In

National Wildlife Federation v. Gorsuch,7 the U.S. Court of

Appeals for the District of Columbia (D.C.) Circuit held that

an NPDES permit is required when the pollutant rst enters

the navigable water, but not when the polluted water later

passes through the dam from one body of navig able water to

another. us, the court reasoned that “addition” refers only

to situations in which the point source introduces a pollut-

ant into the water from the outside world.8 In 1988, the U.S.

Court of Appeals for the Sixth Circuit agreed with the Gor-

such court’s conclusion regarding a hydropower facility oper-

ating on Lake Michigan, holding that t he term addition may

be limited to situations in which the point source introduces a

pollutant into the water from the outside world.9

In contrast, decisions from the U.S. Courts of Appeals for

the First and Second Circuits have held that NPDES permits

were required for water transfers associated with the expansion

of a ski resort and the supply of drinking water.10 So far, Penn-

sylvania is the only st ate to require NPDES permits for water

transfers after a state court decision mandated the issuance of

such permits.11

e recent focus on this issue was largely precipitated by

litigation over the operations of the South Florida Water

Management District’s management of water transfers related

to the Everglades. In 2002, the U.S. Court of Appeals for

the Eleventh Circuit interpreted “addition of pollutants” to

include situations where water is pumped from one water stor-

6. Memorandum from omas Dorling, Assistant Administrator for Water and

Waste Management to Regional Administrators re: State Authority to Allocate

Water Quantities—Section 101(b) of the Clean Water Act (Nov. 7, 1978).

7. 693 F.2d 156, 175, 13 ELR 20015 (D.C. Cir. 1982).

8. Id.

9. National Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580, 584, 19 ELR

20235 (6th Cir. 1988).

10. See Dubois v. Department of Agric., 102 F.3d 1273, 1298-1300, 27 ELR 20622

(1st Cir. 1996); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of

New York, 273 F.3d 481, 494, 32 ELR 20229 (2d Cir. 2001).

11. Delaware Unlimited v. DER, 508 A.2d 348, 381 (Pa. Commw. Ct. 1986).