U.S. Supreme Court leaves in place lower court ruling on Water Transfers Rule

On Feb. 26, 2018, the U.S. Supreme Court left in place a ruling by the U.S. Circuit Court of Appeals for the 2^nd District in New York on the 2008 Water Transfers Rule of the U.S. Environmental Protection Agency. The Water Transfers Rule, issued under President George W. Bush’s administration and continued under President Barack Obama’s administration, allows cities, states and other entities to move water between water bodies, such as lakes and rivers, without getting a discharge permit, which the Petitioners in the case argued was necessary under the landmark 1972 Clean Water Act.

The Plaintiffs included the states of New York, Connecticut, Delaware, Illinois, Maine, Michigan, and Washington, and the Canadian province of Manitoba. Several environmental groups, which had filed a separate lawsuit, had their case consolidated with the case presented to the U.S. Supreme Court. The Plaintiffs argued that such water transfers could inevitably add pollutants to cleaner waterways and were a clear violation of the Clean Water Act, which states a prohibition to “any addition of any pollutant to navigable waters from any point source” unless permitted. The 2^nd Circuit Court rejected their arguments on Jan. 18, 2017, and the U.S. Supreme Court decision leaves that ruling in place.

The 2^nd Circuit Court in their ruling from January 2017 stated that the Clean Water Act “does not require that water quality be improved whatever the cost or means, and the Rule preserves state authority over many aspects of water regulation, gives regulators flexibility to balance the need to improve water quality with the potentially high costs of compliance with an NPDES [National Pollutant Discharge Elimination System] permitting program, and allows for several alternative means for regulating water transfers.”

The dispute revolved around several issues, including power plants operating certain dams being exempt from NPDES permits under section 402 of the Clean Water Act. In the Second Circuit Court’s ruling, they specifically addressed this, with the court opinion stating that hydropower dams are generally not subject to NPDES permits.