Environmentalists Lose Water Pollution Fight in Second Circuit

(CN) – An EPA rule allowing government agencies to transfer water between different bodies of water without pollution safeguards does not violate the Clean Water Act, the Second Circuit determined Wednesday.

In 2008, the EPA adopted the water transfers rule, formalizing a longstanding policy of allowing government agencies to transfer water between different bodies of water, such as rivers and lakes, without needing a Clean Water Act permit.

This allows agencies to move water without safeguarding for pollution transfer from one body of water to another.

The water running in New York City faucets – and cities nationwide – depends on a series of such permit-free water transfers.

Water intended for New York City dwellers travels from the upstate Schoharie Reservoir through an 18-mile-long tunnel that discharges sediment-filled water into the Esopus Creek – a river popular for trout fishing – into several more reservoirs and tunnels along the Hudson River until it reaches the metropolis.

A coalition of environmental groups, fishing enthusiasts, nine states, and one Canadian province, led by the Catskill Mountains Chapter of Trout Unlimited, sued the EPA over the rule, arguing that the agency’s interpretation of the Clean Water Act was unreasonable.

Numerous cities, tribes, states and private entities intervened to defend it.

A federal judge ruled for the environmentalists, finding the rule is not best designed to achieve the Act’s overall goal of protecting the nation’s water quality.

But a divided Second Circuit reversed the ruling.

“Although the tension between the ruleʹs reading of the Act and the statuteʹs overall goal of improving water quality casts some doubt on the reasonableness of the rule, it may nevertheless be understandable and permissible if it furthers other objectives of the statute,” U.S. Circuit Judge Robert Sack wrote for the panel’s majority.

The Clean Water Act is far more flexible than plaintiffs’ reading would allow, Sack said, as it permits policies that might not improve water quality as much as another potential policy because it recognizes a variety of possibly conflicting goals.

The opinion notes that states may protect themselves against polluted water transfers via nuisance or trespass lawsuits. It does not mention that this protection would fail to prevent water pollution in the first place, which is extremely difficult to reverse.

The panel also found the EPA rule is reasonable given the cost of permits and Clean Water Act compliance.

“For instance, several intervenor-defendant water districts assert that it could cost an estimated $4.2 billion to treat just the most significant water transfers in the Western United States, and that obtaining an NPDES permit and complying with its conditions could cost a single water provider hundreds of millions of dollars,” Sack wrote.

The state of California told the court that requiring water transfer permits would put a major financial strain on its state water project, and the American Farm Bureau Federation said it would throw agricultural water flows into doubt and impose significant new costs on farmers.

“In light of the potentially serious and disruptive practical consequences of requiring NPDES [National Pollutant Discharge Elimination System] permits for water transfers, the EPAʹs interpretation here involves the kind of ‘difficult policy choices that agencies are better equipped to make than courts,’” the 91-page opinion concludes.

U.S. Circuit Judge Denny Chin disagreed.

“It would be an absurd result indeed for the Act to be read to allow the unlimited transfer of polluted water to clean water,” he wrote in his 35-page dissent. “Clean drinking water is a precious resource, and Congress painstakingly created an elaborate permitting system to protect it.  Deference has its limits; I would not defer to an agency interpretation that threatens to undermine that entire system.”

This closely-watched divided ruling’s next step just might be the Supreme Court.

Just one day prior to the Second Circuit’s ruling, the high court agreed to decide whether federal courts have jurisdiction to review the EPA’s Clean Water rule defining what waters are subject to federal protection.

A three-judge panel of the Sixth Circuit was sharply divided on the issue when it assumed jurisdiction last year.