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USEPA Reconsiders Bush‐era Water Transfer Rule
Author(s) -
Brownstein Hyatt Farber Schreck
Publication year - 2009
Publication title -
journal ‐ american water works association
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.466
H-Index - 74
eISSN - 1551-8833
pISSN - 0003-150X
DOI - 10.1002/j.1551-8833.2009.tb09980.x
Subject(s) - plaintiff , clean water act , law , eleventh , rulemaking , agency (philosophy) , environmental law , united states regulation of point source water pollution , nonpoint source pollution , business , political science , pollutant , environmental science , water quality , sociology , chemistry , ecology , social science , physics , acoustics , biology , organic chemistry
This article discusses the U.S. Environmental Protection Agency's (USEPA's) controversial 2008 Water Transfer Rule. This Bush‐era rule exempts water transfers from National Pollutant Discharge Elimination System (NPDES) requirements under section 402 of the Clean Water Act (CWA), which bans the discharge of any pollutant from a point source without a permit (USEPA, 2008). Water agencies and the water industry generally support this rule, arguing that water transfers do not “add” pollution to water. Environmental groups counter that the CWA requires NPDES permits for water transfers because the transfers are otherwise adding polluted water to cleaner public lakes and streams and, in so doing, threatening drinking water supplies. The article presents the 2009 case, Friends of the Everglades v. South Florida Water Management District (2009) 570 F.3d 1210, as the first ruling of the U.S. Court of Appeals for the Eleventh Circuit to uphold USEPA's Water Transfer Rule. In response, the environmental group plaintiffs filed a petition asking the Eleventh Circuit to hold an en banc review of this case. On Oct. 13, 2009, the Department of Justice (DOJ), on behalf of USEPA, responded to the petition by rejecting the plaintiffs’ legal arguments and noting that the court was correct in granting the federal government deference to regulate, or refrain from regulating, water transfers (DOJ's Oct. 13, 2009 Response to Petition for Rehearing en banc). However, the DOJ included the caveat that USEPA “intends to reconsider” its existing regulatory exemption for water transfers (Id.).