Transforming Water Transfers: The Evolution of Water Transfer Case Law and the NPDES Water Transfers Proposed Rule

Abstract

Water transfers, the human-induced movement water from one place to another, have historically sustained development vast areas otherwise uninhabitable land in the western United States, and have recently become a popular method for alleviating water allocation problems and scarcity in the eastern United States. As demands on water resources continue to grow, however, critical questions have arisen regarding how best to provide adequate water quantity while preserving water quality. On June 7, 2006, the Environmental Protection Agency (EPA) published its National Pollutant Discharge Elimination System (NPDES) Water Transfers Proposed Rule. The proposed rule codified the Agency's position that the NPDES provision the Clean Water Act (CWA) is inapplicable to water transfers, and that the movement water during the transfer does not constitute an of a pollutant under the CWA, even when the source water contains pollutants the receiving water does not. The EPA asserts that its proposed rule will facilitate the implementation water transfers by exempting them from certain requirements under the Clean Water Act. The proposed rule was a response to the 2004 Supreme Court decision, South Florida Water Management District v. Miccosukee Tribe Indians, wherein the Court left open the critical question whether a permit would be required when a water transfer results in the addition pollutants into the receiving water. To explore the context and evaluate the implications the proposed rule, this Comment examines the development water transfer case law preceding the rule, analyzes the proposed rule in light this precedent and the Miccosukee case, and evaluates its viability based on the plain meaning applicable CWA provisions, statutory construction, and congressional intent.