Assistant administrator for water Benjamin H Grumbles noted: ‘EPA’s Water Transfer Rule gives communities greater certainty and makes clear they have the flexibility to protect water quality and promote the public good without going through a new federal permitting process.
‘Clean water permits should focus on water pollution, not water movement. EPA is committed to working with our state, tribal, and local partners to reduce environmental impacts associated with transfers and will continue to use all appropriate tools such as standards, best management practices, and watershed plans.’
Thousands of water transfers take place across the US and are vital to the nation’s water supply and infrastructure systems. Whether a permit is needed under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) has been an issue in many court cases in recent years.
The final rule defines water transfers as ‘an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use’. Pollutants introduced by the water transfer activity itself to the water being transferred would still require an NPDES permit under the new rule.
In addition, the rule does not prevent states or tribes from using their own powers to control water transfers, including the use of non-NPDES permits. In 2004, the question of whether NPDES permits were necessary for water transfers went before the US Supreme Court in South Florida Water Management District v Miccosukee Tribe of Indians.
The court did not rule directly on the issue, which left unresolved the issue of whether such transfers needed an NPDES permit. EPA issued an interpretive statement in 2005 explaining that Congress intended water resource-management agencies and other state authorities to oversee water transfers, not the NPDES permitting programme. This rule codifies that position.