On June 7, 2008, the federal Environmental Protection Agency (“EPA”) published a formal regulation clearing up lingering legal uncertainty over whether a water transfer is subject to permitting requirements of the federal Clean Water Act’s National Pollutant Discharge Elimination System merely because the transferred water is of different composition than the receiving water. It is not; no NPDES permit is required.
The rule, codified at 40 CFR §122.3, excludes from NPDES permitting requirements all water transfers that “connect waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use” unless the transfer activity itself introduces pollutants into the water being transferred.
The clarification provided by the new rule is important; water transfers occur routinely across the United States and are depended upon to provide needed water for municipal, irrigation, power generation, flood control and environmental restoration. Such transfers are particularly important in responding to drought or impending flood, where delays due to permitting procedures could result in devastating consequences.
The CWA prohibits the discharge of any pollutant from a “point source” into a navigable water unless the discharge is in compliance with the CWA. A point source is “any discernible, confined and discrete conveyance, such as a pipe, ditch, channel, tunnel, conduit, or other such facility. And a “pollutant” has been declared by several federal appellate court decisions to include water that is warmer or which has higher or different chemical and physical characteristics than the receiving water. In California, as in many states, much of the water infrastructure depends on moving water between distinctly different water sources.
The new rule rests on EPA’s 2005 legal interpretation of the Clean Water Act that the Clean Water Act as a whole and its own longstanding practice supports the conclusion that mere water transfer was intended by Congress to be governed by state authorities rather than by the NPDES permitting system. This interpretation has been widely criticized by environmental organizations which claim that it is inconsistent with the Clean Water Act and that courts need not defer to the EPA’s judgment in interpreting the Act. Because the exemption from NPDES permit requirement is now embedded in a formal regulation, it cannot be withdrawn or changed by EPA without the same formal procedure as accompanied adoption of the new regulation — notice, public comment, response and publication.
A legal challenge to the new regulation is, therefore, a virtual certainty. It need not wait until the first application of the regulation, but can be initiated immediately. Filing of a lawsuit must, however, be preceded by a 60-day notice to the EPA.
The NPDES exemption is extremely important to entities such as Placer County Water Agency that depend on trans-basin conveyance of water as the basis of their water supply. In PCWA’s case, the regulation clarifies that no NPDES permit is needed for its discharge of American River water into the Sacramento River drainage, for the discharge of Yuba-Bear water into the American River or Folsom Reservoir, or for the many “spills” of canal water into a drainage different than the one from which it originated or was initially intercepted. Similarly, discharges into the “randoms” – local drainages used for conveyance are now clearly exempt from NPDES permitting requirements.
While California’s water quality laws such as the Porter-Cologne Water Quality Act still apply, there is currently no indication that the State Water Quality Control Board or its Central Valley Regional Water Quality Control Board intends to pursue a permitting requirement.