Suit Filed Challenging EPA's "Water Transfer Rule"

Jun 27: As previously promised, Earthjustice filed suit in U.S. Circuit Court in Atlanta to challenge the Bush administration's controversial "water transfer rule" announced on June 9, 2008 [See WIMS 6/10/08]. Earthjustice indicates that the new rule "says polluters don't need to comply with the Clean Water Act when they transfer dirty water -- from canals contaminated by urban or agricultural pollution, for example -- directly into public lakes and streams." Representing Florida Wildlife Federation, Earthjustice contends in its lawsuit that such water transfers should be protected by the Clean Water Act. Earthjustice also said the rule is intended to effectively overrule a 2006 Federal court decision which declared the practice of unpermitted pollution pumping to be illegal (See Friends of the Everglades, Inc. v. S. Fla. Water Mgmt. Dist.).

According to EPA the final 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. This does not apply to pollutants introduced by the water transfer activity itself to the water being transferred. EPA indicates that water transfers are activities that divert water between waterbodies, typically through the use of pumps or passive redirection through tunnels, channels, and/or natural stream water features.

The Association of Metropolitan Water Agencies (AMWA) applauded the rule, calling it essential for ensuring adequate water supplies for communities. AMWA said the rule affirms how water transfers have been regulated for decades, and states will retain the authority they have always had to regulate transfers under state law, should they choose to do so. AMWA had said previously in support of the rule [See WIMS 8/16/06] that requiring NPDES permits for water transfers could impermissibly interfere with local water resource management decisions that Congress intended to protect. They said their position is also held by the Supreme Court. AMWA is an organization of the largest publicly owned drinking water systems in the United States. AMWA's membership serves more than 120 million Americans with drinking water from Alaska to Puerto Rico.

Earthjustice attorney David Guest, said, "The Bush administration has no right to create exemptions in the Clean Water Act that endanger public drinking water supplies. The public won't stand for this last-ditch move to protect polluters." Earthjustice indicated that the Federal court case challenged the practice of "backpumping" water from contaminated drainage canals into Lake Okeechobee a major drinking water supply. The federal court ruled that the polluted water, coupled with routine disinfection at public water plants, creates "toxic disinfection byproducts that can sicken humans."

They said that "transfers of contaminated water have already triggered numerous toxic algae blooms around the United States. The algae growths can make people sick and sometimes kill livestock or pets that drink the water. The drinking water supplies for millions of Americans across the country have been affected, including notable cases in Florida, Colorado, New Hampshire, and California. The dirty water is a health risk for pregnant women, and taxpayers are on the hook for hundreds of millions of dollars in additional treatment costs while polluters put more profits in their pockets."

Access a release from Earthjustice and links to background information (click here). Access the petition to vacate the EPA final rule (click here). Access links to the final rule, fact sheet and 19-page interpretation memo from EPA's website (click here). Access the EPA docket for the rulemaking for background information and comments (click here). Access the AMWA website for additional information (click here). [*Water]