The Environmental Protection Agency says it intends to reconsider a final rule that excluded water transfers from regulation under the National Pollutant Discharge Elimination System permitting program.

An EPA statement e-mailed to BNA Nov. 1 said the agency plans to reconsider the water transfer rule published in June 2008 because it “has concerns about the water quality impacts of some water transfers.”

The rule defines a water transfer as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use (40 C.F.R. Part 122).

The agency recently formed an interagency workgroup to explore options for addressing the water transfer rule. The group includes representatives from EPA, the Department of Agriculture, the Department of the Interior, and the Army Corps of Engineers, according to a statement provided to BNA.

Appeals Court Decision.

The issue is the subject of litigation in the U.S. Court of Appeals for the 11th Circuit. The Justice Department notified the court Oct. 13 that EPA intends to reconsider the rule following a request for rehearing by the plaintiffs in the lawsuit.

“The court's decision allows EPA to retain, rescind, reconsider, or change the water transfers rule,” according to the DOJ document, which also argued that a rehearing should not take place.

“EPA in fact intends to reconsider the rule; however, as the court correctly concluded, unless and until EPA rescinds or changes the rule through notice and comment rulemaking (or Congress amends the act), the current rule must be given effect,” the Justice Department said.

In June, the appeals court reversed a federal district court ruling in 2006 that said pumping polluted water from canals in the Everglades into Lake Okeechobee without a permit violates the Clean Water Act (Friends of the Everglades Inc. v. South Florida Water Management District,11th Cir., No. 07-13829, 6/4/09).

In July, the plaintiffs filed for a rehearing before the full appeals court.

In the June 2008 final rule, EPA said Clean Water Act permits are not required for water transfers because the transfers do not add pollutants to navigable waters. The pollutants are already in the waters being transferred and are not being added from the outside by a point source, the agency said (73 Fed. Reg. 33,697; 111 DEN A-1, 6/10/08).

The lawsuit was originally filed in 2002 against the South Florida Water Management District by Friends of the Everglades and Fishermen Against the Destruction of the Environment. The groups sought an injunction to force the district to obtain a permit under the Clean Water Act's National Pollutant Discharge Elimination System program before pumping polluted canal water into Lake Okeechobee.

“EPA understands the importance of water transfers to the efficient operation of the nation's water distribution system and intends to tailor any new revisions to transfers with serious water quality impacts and to avoid unnecessary burdens on water providers and users,” the agency said in the statement provided to BNA.

Permits Not Required for Agricultural Runoff.

The agency said agricultural stormwater, which is polluted by nonpoint sources, would not be subject to permitting under the revised rule it plans to issue.

“No regulatory action EPA might take will change the provisions in the Clean Water Act which make clear that a permit is not necessary for either return flows from irrigated agriculture, or agricultural stormwater runoff,” EPA said.

“The public will have an opportunity to review and comment on any changes EPA might propose for this rule,” the agency said.

David Guest, a lawyer with Earthjustice and the lead attorney representing the plaintiffs in the case, told BNA Oct. 30, “The rule exempting all water transfers from the Clean Water Act was plainly targeted at our case.”

Guest said advocates hired by the South Florida Water Management District and by U.S. Sugar Corp. argued there would be “doomsday” without exemptions because there are 20,000 water transfer points in the country, including pumps and canals.

Guest called the figure “baloney.” He said the plaintiffs had conducted a state-by-state census that found fewer than 200 transfers in Western states, and a study by the U.S. Geological Survey found 200 transfers in Eastern states. Of these, only a handful presented serious problems, he said.

Few Permits Needed, Advocate Says.

“I think they came to the realization at EPA that the folks in litigation were puffing up the amount of permits needed to be issued,” Guest said.

EPA needs to address the issue because of potentially “very grave health problems,” resulting from pollutants in a small proportion of U.S. waters, he said.

Guest said the agency's response means that EPA can work with states to develop a rule “where harmless water transfers are not subject to permitting and dangerous water transfers are subject to proper Clean Water Act treatment.”

In a statement, the South Florida Water Management District said, “Florida's robust regulatory system already effectively ensures that water management activities comply with State law and adhere to the standards of the federal Clean Water Act.”

The district added, “As the District has maintained, Congress thirty-five years ago rightly entrusted the states to manage their waters for the benefit and protection of their citizens without burdening taxpayers with additional layers of federal oversight.”

Linda Eichmiller, executive director of the Association of States and Interstate Water Pollution Control Administrators expressed concern Oct. 29 that states would become overburdened by additional permitting requirements if transfers were required to obtain permits.

But Eichmiller's concern is not shared by all the states. In October 2008, nine states filed a lawsuit in the Southern District of New York alleging that EPA violated the Clean Water Act when it issued the rule saying permits are not required for transfers of water from one body of water to another (New York v. EPA, S.D.N.Y., No. 1:08-cv-08430, 10/2/08; 193 DEN A-8, 10/6/08).

By Linda Roeder

Copyright 2009, The Bureau of National Affairs, Inc.