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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

EPA's Water Transfer Rule Opposed  Posted: August 31, 2006

August 7, 2006

Stephen L. Johnson, Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

RE: Comments on EPA’s Proposed Rule Exempting Water Transfers from the Clean Water Act, 71 Fed. Reg. 32887 (June 7, 2006).

Dear Administrator Johnson:

These comments are submitted by the undersigned organizations in opposition to the Environmental Protection Agency’s (EPA’s) proposal to exempt “water transfers” from the Clean Water Act prohibition on discharging pollutants into the waters of the United States without obtaining a national Pollutant Discharge Elimination System (NPDES) permit. (71 Fed. Reg. 32887 (June 7, 2006); Docket ID No. EPA-HQ-OW-2006-0141). This proposed rule is inconsistent with the letter and purpose of the Clean Water Act and, if finalized, will increase pollution of the nation’s water resources.

Contrary to the agency’s repeated assertions that the proposed rule is consistent with a “holistic” reading of the Clean Water Act, the proposal ignores the plain meaning of the Act’s explicit prohibition on discharging pollutants into the waters of the United States absent a federal permit ensuring that such discharges meet all of the requirements of the law. The proposal further subverts the clear and long-established primary purposes of the law, which are to eliminate water pollution and ensure that all of the nation’s waters are safe for fishing, swimming, and other existing and designated uses. Rather than an honest holistic reading of the law, the proposed rule represents a cynically distorted subversion of the true meaning of the Clean Water Act.

In 1972, Congress passed the Clean Water Act with a specific purpose, stated in the law’s very first sentence: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To that end, Congress “establish[ed] a comprehensive long-range policy for the elimination of water pollution.”

Passage of the Clean Water Act was prompted by public outcry over the state of the nation’s waters: the Cuyahoga River was so polluted with industrial waste that it caught fire in 1969, while Lake Erie supported toxic algae blooms forty miles long and was predicted to become biologically dead. These are just a few of the many water pollution problems that motivated Congress to pass what has often been referred to as one of the nation’s most comprehensive pollution control laws in history. Since the passage of the Clean Water Act, the country has made great strides in cleaning up these and thousands of other water pollution problems. This proposed rule, however, does nothing to further the stated goals of the Clean Water Act or further its progress in curbing water pollution. Instead, its promulgation stands to significantly undermine the gains the nation has made to improve water quality over the last three decades.

Transfers of water from one water body to another can, in some instances, add pollutants in the source water to the receiving water. In such cases, EPA’s proposal to exempt these transfers from the Clean Water Act is not only illegal but will result in increased pollution of the nation’s waters – thereby threatening drinking water supplies, recreational uses of waters, fishing and shellfishing, wildlife habitat, and other uses of these waters.

EPA itself does not dispute that unregulated “transfers” of polluted water can have severe water quality consequences. Rather, it chooses to simply ignore these consequences based on its gross misreading of the law and the history of “agency practice” of failing to properly regulate such discharges. Indeed, one of the most remarkable aspects of this proposed rulemaking is EPA’s complete failure to assess in any way whatsoever the effect this rule will have on water quality across the country or its impacts on public health, environmental protection, or the economic costs of spreading water pollution from one watershed or water body to another.

In sum, the proposed rule is contrary to the plain meaning of the Clean Water Act, the intent of Congress, and the interpretation of the law by the courts. Our organizations strongly oppose this illegal and unwarranted proposal. Therefore, we urge the EPA to withdraw this rulemaking from any further consideration.

I. This Rulemaking Will Allow Pollutants To Be Pumped Into The Nation’s Waters, Ignoring The Various Ways In Which Water Quality And Related Values Are Harmed By Water Transfers.

A. Public health can be threatened by water transfers.

There are public health threats associated with the proposed rule that the Agency fails to consider. When water is transferred from one body of water to another, pollutants may also be transferred. In such instances, this can harm drinking water sources and compromise public health.

1. Contamination of drinking water sources

A significant example of a public health threat that can be caused by transfers of polluted water is the health threat created by backpumping polluted floodwaters off sugar cane fields into Lake Okeechobee. The backpumped water is high in pollutants including total organic carbons, total dissolved solids, color, phosphorus and nitrogen (nutrients), and is low in dissolved oxygen. The communities of Pahokee, South Bay, and Belle Glade rely on the Lake as their drinking water source. Unfortunately, the treatment process the towns were using included chlorine. Mixing chlorine with lake water laden with algae, nutrients, and other organic material can lead to the formation of toxic disinfectant by-products, such as trihalomethanes (THMs), which are known carcinogens and mutagens. High levels of trihalomethanes in the towns' drinking water have been linked to excessive backpumping into the lake.

In May, 2006, the U.S. Department of Health and Human Services, Agency for Toxic Substances and Disease Registry issued a warning to pregnant women in Pahokee and South Bay to limit their exposure to water pumped from Lake Okeechobee due to concerns over exposure to disinfection byproducts. While the cities on the south shore recently switched from chlorine to chloramines (a compound made by combining chlorine and ammonia), the byproducts of chloramine treatment of organic-laden water (also toxic but not yet regulated) can also cause cancer and mutagenic maladies such as birth defects. The higher the level of organics in the source water, the more disinfectant is used, and the more disinfectant byproducts are created. For these reasons, Dr. William Wise testified at the FWF trial that he was of the opinion that backpumping renders the public drinking water supplies in South Bay, Belle Glade and Pahokee unfit to consume.

The high levels of nutrients transferred into the lake through backpumping also fuel the growth of massive toxic blue-green algae blooms in the lake. This form of algae can release nerve and liver toxins which can be extremely difficult to remove through the normal drinking water treatment process. For example, chlorine kills the algae but in the process causes the algae to release all its toxins; chloramines have virtually no effect on either the algae or the toxins they produce.

2. Introduction of harmful biota/bacteria

Water transfers can also result in the introduction of harmful biota to the receiving waterbodies of water transfers. An example of this is the Davis Pond Project Area, located along the Mississippi River in Louisiana on the West Bank of St. Charles Parish. The Davis Pond Freshwater Diversion Structure was built to help prevent wetland loss along the Louisiana coastal zone by mimicking historic spring floods. Before the diversion was fully operational, limited outflows harmed the salinity levels and nutrient regimes in Barataria estuary. Furthermore, nutrient inputs from the water transfers appear to have resulted in an increase in the growth of harmful bacteria, as well as altered the phytoplankton community in three upper basin lakes. There can be both adverse environmental effects and human health concerns associated with the trophic transfer of cyanobacterial toxins.

Some cyanobacteria can produce toxins that harm wildlife and humans. Drinking or bathing in water contaminated with cyanobacteria can result in skin irritation, stomach cramps, vomiting, nausea, diarrhea, fever, sore throat, headache, muscle and joint pain, blisters of the mouth and liver damage. High levels of toxin-producing cyanobacteria can poison animals, birds and fish as well.

B. Environmental threats

There are significant environmental threats associated with transfers of water between different waterbodies in some instances. Transfers of water can result in changes to temperature, salinity, turbidity, pH, water quality and can introduce new species to the receiving water. The threats to wildlife are particularly significant in such cases.

1. Turbidity

Fish and other aquatic species can be especially sensitive to turbidity or sedimentation. In a recent court case between the Catskill Mountains Chapter of Trout Unlimited and New York City, the court found that the City did indeed need discharge permits for a water transfer that added silt to the Esopus Creek, which spills into the Ashokan Reservoir. The three-judge panel agreed with Trout Unlimited that turbidity impairs the use of the Esopus for fly-fishing and other recreational activities. Indeed, studies have shown that turbidity can be harmful to trout. For example, increases in turbidity in streams can result in a decrease in growth rates for trout species.

2. Introduction of Invasive Species

Water transfers can result in the transfer of invasive species as well. There are many documented examples of the harm caused by invasive species and the difficulties involved with eliminating them.

One of the most infamous examples is that of zebra mussels (Dreissena polymorpha) in the Great Lakes. Zebra mussels are tiny black-and-white striped bivalve mollusks that have invaded North American freshwater and estuarine systems, causing millions of dollars of damage in the Great Lakes region alone. In addition to the damage done in the Great Lakes region, the zebra mussels may harm additional aquatic species communities in North America. Invasive species can be easily transferred through conveyances between bodies of water, just as any other pollutant can be, and with significant biological impact.

3. Salinity

The Bureau of Reclamation's Central Valley Project (CVP) diverts water from the Sacramento River by pumping it across the salty Sacramento-San Joaquin Delta, along with flows from the lower San Joaquin River that reach the Delta, and into a facility called the Delta-Mendota Canal, which takes the water south and into the Mendota Pool on the San Joaquin River. For several miles before the Pool, the San Joaquin River is generally dry (because of an upstream CVP facility, Friant Dam), except in flood conditions. Downstream of the pool, the San Joaquin flows again for several miles, with its flow almost entirely consisting of transferred water from the Delta.

This imported Delta water is used in agriculture. However, the water that arrives in Mendota Pool – which is not subject to a NPDES permit – and that makes up the San Joaquin's downstream flow is quite salty. Worse, much of it is used to irrigate land that is naturally high in salt, resulting in salty drainage into the San Joaquin River and in an ever-worsening salt impairment. Over 1 million tons of salt are imported into the San Joaquin basin each year as a result of this transfer-based project, and the affected portion of the San Joaquin is listed as impaired by, among other things, salinity.

C. Economic threats

The EPA has failed to give any consideration to the economic impacts of its proposed rule. As noted throughout these comments, water transfers can result in degraded water quality in the waters to which transfers are made. If those waters are sources of drinking water, then the municipalities that rely on those waters will have to spend more money to treat the water before delivering it to consumers.

For example, as mentioned above, the cities of Pahokee, South Bay and Belle Glade in Florida all get their drinking water from Lake Okeechobee. The levels of disinfectants the towns on Lake Okeechobee must use to clean the nutrient and algae-laden lake water creates a high risk of producing harmful disinfectant byproducts in the drinking water. Conditions have worsened to the point that the towns are considering abandoning the lake as a drinking water source. Instead they would draw their water from the low quality groundwater aquifer and treat the water using an extremely expensive reverse osmosis to remove the salts. The plant is estimated to cost approximately $50 million.

In addition, the EPA’s proposed rule could also significantly harm the fishing industry. Water transfers from polluted bodies of water to cleaner bodies of water lead to water quality degradation, including changes in salinity, water temperature and nutrient loads. Streams and rivers that support fish stocks are potentially at risk because of water transfers. For example, salmon and trout stocks are especially sensitive to changes in water temperature and water quality degradation and generally have specific requirements in order to breed. Significant changes to the streams in which they live can have detrimental effects. If water transfers are allowed to occur with a blanket exemption, this industry will surely suffer as a result, impacting the billions of dollars spent each year on fishing activities, and the bottom line of the commercial fishing industry.

The preceding examples of pollution resulting from water transfers are representative of any pollutant that may occur in waters of the U.S. and the impact that pollutants have on the public health, the economy and the environment. Allowing such pollutants to spread without oversight and Clean Water Act limitations will have wide-ranging impacts on waters, wildlife, communities, and businesses. In short, every stakeholder that could be affected by water pollution in general would no doubt be harmed by allowing pollutants to spread from one water to the next without oversight, as EPA has proposed.

II. The Proposed Rule Is Unlawful Under The Clean Water Act

This proposed rule violates the plain meaning and clear intent of the Clean Water Act: to reduce pollution devastating to our waters and public health. The agency’s misguided attempt at a “holistic” approach, purportedly backed up by legislative history, does not stand up to scrutiny. Further, the courts have already examined EPA’s authority to exempt classes of discharges from the requirements of the Clean Water Act, and determined that EPA lacks such authority.

A. Plain Meaning of the Clean Water Act

The requirements of the Clean Water Act are clear. Section 301 of the Act states that the “discharge of any pollutant by any person shall be unlawful” except in compliance with several other sections of the Act, including section 402, the NPDES permitting provision. In turn, the law defines “discharge of a pollutant” to include “any addition of any pollutant to navigable waters from any point source. . . .” When pollutant-laden water is discharged from a water transfer project via a pipe or other conveyance, it adds pollutants to the receiving waters. Accordingly, EPA’s proposal does not deny that transfers of water containing pollutants fall within the plain text of the statute, but instead argues that polluted water movements do not constitute “additions” when the statute is read “holistically.”

As discussed in more detail below, numerous courts have held that the transfer of polluted water into clean water constitutes the “addition” of a “pollutant” consistent with the Act’s plain language. In Catskill, the Second Circuit rejected the argument that “an addition to one water body is . . . an addition to all of the waters of the United States”, finding that

[s]uch a theory would mean that movement of water from one discrete water body to another would not be an addition even if it involved a transfer of water from a water body contaminated with myriad pollutants to a pristine water body containing few or no pollutants. Such an interpretation is inconsistent with the ordinary meaning of the word ‘addition.’

Also in Catskill, the court cited another Second Circuit case that “implicitly held the release of polluted water from one water body to a distinct, less-polluted water body to be an addition of pollutants to the latter.” Moreover, the First Circuit found in Dubois v. U.S. Dept. of Agriculture that the transfer of water from one distinct water body to another constituted an addition under the Clean Water Act. The proposed rule unacceptably ignores the plain meaning of the Clean Water Act and its interpretation by these courts.

B. EPA’s Selective and Self-Serving Interpretation is Neither “Holistic” Nor Permissible.

The “holistic” approach to interpreting the Clean Water Act purportedly relied upon by the agency to justify the proposed rule is ludicrous. The definition of holistic is “relating to or concerned with wholes or with complete systems rather than with the analysis of, treatment of, or dissection into parts.” The proposed rule itself states that “the ‘whole statute’ interpretation analysis means that ‘a statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent.’” Yet the proposed rule is not faithful to this stated principle: it utterly ignores Congress’ clearly stated intent and the overwhelming effect of the law’s various provisions: to reduce and eventually eliminate water pollution, not allow it to spread unchecked.

Far from a true holistic approach, the proposed rule picks and chooses a very few sections of the entire Clean Water Act and tries to knit them together to claim that those sections force the conclusion that the Act does not govern water allocations, and therefore cannot regulate discharges of pollutants when they occur due to the transfer of water from one body to another. This is quite a leap, especially given what those provisions actually do say – discussed in more detail below – and the complete absence of language in the statute exempting the discharge of pollutants from point sources from either the pollution prohibition in § 301 or the permitting provisions of § 402 of the Act.

Further, the proposed rule misinterprets those sections the agency has chosen to purportedly represent its “holistic” view of the law. While these provisions make clear that the EPA and the Clean Water Act do not replace states’ role in water allocation issues (such as how much water a state or other water user may take from a certain basin, etc.) they belie the agency’s assertion that the provisions also stands for the proposition that discharges of pollutants from such sources are not covered by the law.

EPA first points to § 101(b) of the Act, which states that:

It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this Act.

Presumably, the proposed rule references this section to bolster its “holistic” view that Congress intended water transfers to be a wholly state, not federal, matter. But that is not what the language says. In fact, the remaining sentences in § 101(b) provide examples of what Congress did intend: that states manage the construction grant program under this Act and implement the permit programs under sections 402 and 404, that the federal agencies provide technical and financial assistance to states, and so on. In no way does this provision support the EPA’s bizarre reading of the statute.

The proposed rule goes on to assert that § 101(g) “establishes Congress’ general direction against unnecessary Federal interference with State allocations of water rights.” Section 101(g) refers to states’ rights over quantities of water – in no way does this section abrogate the federal government’s right and responsibility under the Clean Water Act to ensure water quality.

In fact, Senator Wallop, a sponsor of the § 101(g) amendment that was added to the Act in 1977, made it very clear that the provision “does not interfere with the legitimate purposes for which the act was designed. The amendment speaks only – but significantly – to the rights of States to allocate quantities of their water and to determine priority uses. . . . Water quality and interstate movement is an acceptable Federal role and influence.” He then reiterated the legitimate purposes of the Clean Water Act: “This act remains an act to protect the quality of water and to protect critical wetlands in concert with the various states. In short a responsible Federal role.” Thus, it is clear that this section was never meant to be the exception for transfers to the prohibition on discharges of pollution that EPA claims it is.

In the proposed rule, EPA next cites § 510(2) and asserts that this section of the law, in addition to § 101(g), is further support for the notion that Congress did not intend the Clean Water Act to “unduly interfere” with water resource allocation. This is stranger still, because both the text of § 510(2) and its legislative history shows very clearly that this section deals only with the ability of States to pass water quality standards stricter than those of the federal government – there is no mention of water allocations in § 510(2).

The debate on this provision on the House floor makes this even clearer. The following sample of the floor statements on the bill that became the 1972 Clean Water Act make this even more evident:

Congressman Madden: “The bill also retains the authority of the States to enact water quality standards and effluent limitations more stringent than Federal standards.”

Congressman Mizell: “States may establish more stringent emission standards than those required by Federal law, and. . . interstate water quality standards established by a State and not inconsistent with pre-existing Federal standards shall remain in effect.”

Congressman Clausen: “Our members are agreed that local and state governments should be able to set and force higher environmental standards where they so desire.” · Congressman Hammerschmidt: “[T]he bill specifies that states may establish more stringent emission standards than those required by Federal law.”

The committee reports in the House and Senate reaffirm this interpretation. The House report stated that “Section 510 retains the right of any State or interstate agency to adopt or enforce any standard of limitation as to discharges of pollutants or any requirement as to control or abatement of pollution which is not less stringent than those required or established under the” Clean Water Act. The Senate report confirms that “[t]his section states that the States retain the right to set more restrictive standards than those imposed by this Act.”

This section does not “support[] the notion that Congress did not intend administration of the CWA to unduly interfere with water resources allocations” – as EPA claims – and it is certainly not a license for states or the federal government to undermine the goals and requirements of the Clean Water Act, which is what this proposed rule attempts to do.

Finally, EPA turns to § 304(f) of the statute and states that this provision “reflects an understanding by Congress that water movement could result in pollution, and that such pollution would be managed by States under their nonpoint source program authorities, rather than the NPDES program.” However, that is not at all what this section of the law says.

Section 304(f)(1) directs the EPA to identify and evaluate nonpoint sources of pollution. Section 304(f)(2) then specifies that EPA must report on methods for controlling water pollution resulting from several types of activities, including “changes in the movement, flow, or circulation of any navigable waters or ground waters, including changes caused by the construction of dams, levees, channels, causeways, or flow diversion facilities.” This section nowhere states that the listed categories are exclusively nonpoint sources, much less suggest that point source discharges from these activities are exempt from the Act or § 402.

The legislative history of § 304(f) likewise demonstrates that EPA is misconstruing this section of the law and the relationship between the § 402 NPDES program and § 304. The Senate report states that “[a]ny State may create its own permit system, following Section 304 guidelines.” At most, § 304(f) demonstrates that Congress intended for the federal and state governments to work together to address water pollution from several important source categories that tend not to have the prototypical industrial wastewater discharges – and that the state functions provided for under this section are to be supervised and guided by the federal government. Referring to § 304 in the House debates, Congressman Wright said, “The Administrator is required to promulgate guidelines establishing the minimum procedures and other elements of a State permit program under section 402.”

In sum, contrary to EPA’s claim that, taken together, these sections of the Act demonstrate that Congress “was aware that there might be pollution associated with water management activities” but chose to somehow, by implication, leave this class of point source discharges of pollution outside the scope of the Act is completely unavailing. Neither separately nor together do any of these sections of the law support EPA’s purportedly “holistic” approach – or its attempt to ignore the true holistic purpose of the Act, which is to eliminate water pollution.

C. Agency Overreaching

1. EPA is exceeding agency authority by exempting an entire class of waters from the NPDES permitting requirement.

This rule proposes to exempt water transfers from the permitting requirements of § 402. However, the courts have already considered the question of whether EPA has the power to exempt entire categories of discharges from the permitting requirements of the Clean Water Act, and answered with a resounding “no.”

In Costle, a case in which EPA attempted to exempt “discharges from a number of classes of point sources” from § 402 requirements, the court stated that:

the wording of the statute, legislative history, and precedents are clear: the EPA Administrator does not have authority to exempt categories of point sources from the permit requirements of § 402. Courts may not manufacture for an agency a revisory power inconsistent with the clear intent of the relevant statute.

Given the plain meaning of the Clean Water Act – that an addition of pollutants to navigable waters without a permit is unlawful – EPA is exceeding its statutory authority when it attempts to exempt this category of discharges from § 402 permit requirements.

2. EPA’s consideration of designating authority for states or other entities to regulate water transfers on a case-by-case basis is also unlawful.

EPA requests comment on a provision – not included as part of the agency’s proposal – that would allow states that have been delegated NPDES permitting authority “to designate particular water transfers as subject to the NPDES program on a case-by-base basis if a transfer would cause a significant impairment of a designated use.” EPA offers no statutory authority justifying this as an option. But that is not the only reason that this suggestion by EPA is unlawful: by implication, this proposal would mean that those states with such a designation would also be free to exempt or ignore the statute’s requirement that all such water transfers are illegal unless permitted under the NPDES program. As discussed above, EPA lacks the legal authority to promulgate any rule allowing any exemptions to the NPDES permitting system for discharges of pollutants into the nation’s waters, for water transfers or any other discharges. Therefore, EPA clearly lacks the power to delegate this case-by-case authority to the states.

While commenting on this aspect of the proposed rule, it is worth noting that this designation provision is extremely troubling for numerous reasons in addition to its illegality. For example, even suggesting the option of adopting this provision seems to be at least some acknowledgment by the agency that water transfers can cause significant impairment of designated uses of waters. However, the threshold EPA considered before it would allow the states to act would actually require states to wait until their waters are so polluted from water transfers that their designated uses are “significantly impaired.” In other words, EPA’s perverse designation idea wouldn’t even let states take any action until the pollution is so great that undoubtedly, in such situations, damage will be extremely expensive and difficult to reverse.

Though EPA decided not to propose establishing this designation provision (rightfully so, as it does not have the authority to do so any more than it has the authority to exempt an entire class of water transfer discharges in the first place) this suggested provision’s contemplation of serious water pollution threats from pumping polluted waters into cleaner ones itself provides additional justification for abandoning the rule that EPA has proposed in its entirety.

D. Violation of international agreements

In addition to violations under the Clean Water Act, the proposed rule also has the potential to violate international agreements. The Boundary Waters Treaty, signed in 1909, is an agreement between the United States and Canada “to help resolve disputes and to prevent future ones, primarily those concerning water quantity and water quality.” Article IV of the Treaty provides that “the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.” Some water transfers occur at or near the border and potentially affect the quality of Canadian waters. Allowing the transfer of polluted water into clean waters over the border, as this proposed rule would, is a clear violation of the Treaty.

Devils Lake provides a clear example of this rule’s potential to cause friction between the United States and Canada. Devils Lake is a 134,000 acre lake in northeastern North Dakota, with high levels of sulfates, Total Dissolved Solids (TDS), and other chemicals. Devils Lake has no natural outlet, and has risen significantly in recent years. Due to resulting flood damage, North Dakota and the Army Corps of Engineers (Corps) began developing plans to construct an outlet to drain the lake into the Sheyenne River, which continues into the Red River and north into Canada’s Lake Winnipeg.

In 1997, the Corps began consideration of the possibility of an outlet at the direction of Congress. EPA was harshly critical of the draft Environmental Impact Statement (DEIS) released by the Corps in association with its plan to pump Devils Lake water into the Sheyenne River, which eventually flowed to Canada. EPA rated the DEIS “inadequate,” and the proposed outlet “environmentally unsatisfactory.” EPA found that the outlet raised “several significant issues with respect to the no harm provision of the Boundary Waters Treaty.” EPA stated that “[b]ecause the water quality of Devils Lake is relatively poor for a number of key water quality parameters, removing water from Devils Lake and placing it in the Sheyenne River will adversely affect water quality in the Sheyenne and downstream in the Red River.” EPA’s “serious concerns” included the likelihood of violations of water quality standards, the Corps’ failure to analyze the impact on wetlands or alternatives that might be less environmentally damaging, failure to address whether the outlet would violate the Boundary Waters Treaty, and complete failure to assess the environmental costs to “Canadians and Canada’s natural resources."

The Canadian government also expressed significant opposition to the proposed outlet. Gary Doer, Manitoba’s premier, expressed agreement with EPA, saying “[t]he EPA statement is dead-on in its assessment of the Devils Lake outlet. They back up every one of our concerns about the potential effects downstream to Manitoba communities, our environment, and our economy. It’s about time.” The Corps eventually abandoned its plans to construct the outlet.

Ignoring these concerns and opposition from Minnesota, Manitoba and several environmental organizations, North Dakota’s officials began to design an outlet of their own. Manitoba and others objected to this outlet in court and a near-showdown between the governments of North Dakota and Canada over referring the matter to the International Joint Commission (IJC) was averted when both sides agreed on a temporary gravel filter to remove some of the invasive biota, to be followed by the construction of an $18 million sand filter. The settlement also provided that the Red River branch of the IJC would monitor the agreement, staving off concerns that the Boundary Waters Treaty had been “devalue[d].”

Despite the widespread opposition, the North Dakota Department of Health (DOH) issued an NPDES permit for the outlet in 2003. The outlet began operation in August 2005, but was able to operate for only eleven days before violations of water quality standards forced it to shut down. It has not operated since that day.

North Dakota now seeks a modification of the permit to allow operation of the pumps once again. The requested modification “will remove the reference to specific months a discharge can occur, remove the total suspended solids limit and adjust the instream sulfate limit for the intermittent discharge of surface water from West Bay of Devils Lake (Round Lake) to the Sheyenne River.”

The Minnesota Department of Natural Resources (MN DNR), the Manitoba Water Science and Management Branch (WSMB), and the Government of Canada were among those to comment on the proposed modification. The comments of the director of the U.S. Relations Division of the Canadian government were particularly salient focusing on “the risk of an increase in the frequency and magnitude of exceedances to the water quality objectives at the international boundary, which have been agreed to by Canada and the United States.” The comments seek to remind the agency of the obligations under the Boundary Waters Treaty to avoid harmful pollution of cross-border waters.

The utter disregard for the obligations imposed by the Boundary Waters Treaty in this case angered the Canadian government and many of her citizens. Without the § 402 permit that was issued in this case, the severe violations of water quality standards – necessitating shutdown after only eleven days – would have continued, causing enormous damage to the receiving waters and continued violations of U.S. Treaty obligations.

IV. EPA is ignoring the reasoning of numerous courts concerning permitting for water movement activities, which uniformly indicate that discharging unaltered but polluted water into waters of the United States requires a permit.

When federal courts have considered whether the Clean Water Act applies to water containing pollutants that is moved into another water of the United States, they have consistently found that it does. This overwhelming precedent includes strong signals from the Supreme Court and the decisions of four federal appeals courts.

EPA would set these decisions aside in pursuit of a regulation that would create a temporary exemption from permitting for such movements – temporary, that is, because this proposed rule, even if finalized, will ultimately be held unlawful because it is inconsistent with these prior opinions.

A. Supreme Court Precedent

The Supreme Court in Miccosukee made clear that the fact that an activity merely moves polluted water into a water of the United States without altering it does not exempt it from the Clean Water Act’s permit obligations. Ruling 9-0 on this point, the Court held that “a point source need not be the original source of the pollutant; it need only convey the pollutant to ‘navigable waters’” to be regulated. Indeed, the Court observed, the law expressly defines “point source” as a “conveyance.” This holding proves the fallacy in EPA’s half-hearted suggestion that because “operators of water control facilities are generally not responsible for the presence of pollutants in the waters they transport,” it would be somehow inappropriate or inconsistent with the intent of the Clean Water Act to require such activities to be permitted consistent with the law.

As discussed below, Miccosukee also strongly indicates the Court’s disagreement with the government’s “unitary waters” theory, which holds that an activity does not “add” pollutants to the “waters of the United States” taken as a whole when it moves polluted water from one water body to another because the waters of the United States are, in this view, essentially to be treated as one body of water. As summarized by the Supreme Court:

The “unitary waters” argument focuses on the Act’s definition of a pollutant discharge as “any addition of any pollutant to navigable waters from any point source.” § 1362(12). The Government contends that the absence of the word “any” prior to the phrase “navigable waters” in § 1362(12) signals Congress’ understanding that NPDES permits would not be required for pollution caused by the engineered transfer of one “navigable water” into another.

Today, it is unclear to what extent the “unitary waters” theory remains EPA’s view. This theory seemingly first appeared in an August 2005 EPA memorandum that was introduced to the court in the Lake Okeechobee. According to EPA, the theory holds that a “mere conveyance of one navigable water into another [does] not add pollutants because they were already contained in the navigable waters.” EPA’s proposed rule is incredibly – one supposes intentionally – vague on this question. The rulemaking proposal does not even mention the “unitary waters” theory, and the memo primarily refers to it as the Agency’s announced position in Miccosukee itself, not now. Nevertheless, because the agency proposal is premised on an interpretation of the statutory term “addition,” because it offers no other textual explanation why transfers of polluted water should not be considered to add pollutants, and because EPA previously claimed that the transfer of polluted water does not add pollutants to waters of the United States under the “unitary waters” theory, we discuss the Supreme Court’s treatment of it and related statutory interpretation issues here.

First, in the August 2005 memo, EPA claimed that the “unitary waters” theory is bolstered by a statutory provision requiring the agency to provide appropriate agencies with information on non-point pollution and pollution from several designated activities, including “changes in the movement, flow, or circulation of any navigable waters or ground waters, including changes caused by the constriction of dams, levees, channels, causeways, or flow diversion facilities.” But in Miccosukee, the Supreme Court noted that this provision “does not explicitly exempt nonpoint pollution sources from the NPDES program if they also fall within the ‘point source’ definition.”

Second, the Court pointed out that the Clean Water Act uses the phrase “navigable waters” without the modifier “any” where it is plain that Congress intended the law to extend to individual water bodies, not the national collective of waters. Specifically, the Court said:

[S]everal NPDES provisions might be read to suggest a view contrary to the unitary waters approach. For example, under the Act, a State may set individualized ambient water quality standards by taking into consideration “the designated uses of the navigable waters involved.” 33 U.S.C. § 1313(c)(2)(A). Those water quality standards, in turn, directly affect local NPDES permits; if standard permit conditions fail to achieve the water quality goals for a given water body, the State must determine the total pollutant load that the water body can sustain and then allocate that load among the permit holders who discharge to the water body. § 1313(d). This approach suggests that the Act protects individual water bodies as well as the “waters of the United States” as a whole.

Third, the Court pushed back against EPA’s prediction that permitting water transfers would be practically problematic, both because it could involve numerous new NPDES permits and because some transfer project operators might need to install pollution controls to meet water quality requirements. While allowing that there “may” be a cause for concern if NPDES permitting “raise[d] the costs of water distribution prohibitively,” the Court stated that “it may be that such permitting authority is necessary to protect water quality, and that the States or EPA could control regulatory costs by issuing general permits to point sources associated with water distribution programs.”

B. Federal Courts of Appeal

Four circuit courts have dealt with the issue the agency’s proposed rule seeks to address, namely the movement of unaltered but polluted water into waters of the United States. Each one has concluded that such activity is unlawful absent a NPDES permit.

In Dubois, a citizen sued the Forest Service for violating the Clean Water Act with regard to the movement of water containing various pollutants from the East Branch of the Pemigewasset River into Loon Pond, a relatively pristine water body used, among other things, as a drinking water source. The First Circuit concluded that where distinct bodies of water are at issue, “the discharge is through a point source and the intake water contains pollutants, an NPDES permit is required.” Importantly, the court specifically rejected the district court’s reliance on the same legal rationale that EPA later advanced – the “unitary waters” theory. It reasoned:

We can take judicial notice that the Pemigewasset River was for years one of the most polluted rivers in New England, the repository for raw sewage from factories and towns. It emitted an overwhelming odor and was known to peel the paint off buildings located on its banks. Yet, under the district court’s theory, even if such conditions still prevailed, a proposal to withdraw water from the Pemigewasset to discharge it into Loon Pond would be analogous to moving water from the top to the bottom of a single pond; it would not constitute an “addition” of pollutants “from an external source” because both the East Branch and Loon Pond are part of the “singular” waters of the United States. The district court apparently would reach the same conclusion regardless of how polluted the Pemigewasset was or how pristine Loon Pond was. We do not believe Congress intended such an irrational result.

Nevertheless, EPA asks the public to accept a regulation that would broadly embrace this “irrational result” ten years later.

In Catskill, a group of recreational users of a creek sued New York City, which owns and operates a reservoir and a water transfer project, the Shandaken Tunnel, that conveys turbid reservoir water to a creek that then empties into another reservoir, all of which are part of a system of conveyances for water eventually used as drinking water for city residents. “Under natural conditions, water from the Schoharie Reservoir would never reach Esopus Creek.” The Second Circuit held that the transfer required a NPDES permit, saying that “the transfer of water containing pollutants from one body of water to another, distinct body of water is plainly an addition and thus a ‘discharge’ that demands an NPDES permit.” More specifically, the court stated:

No one can reasonably argue that the water in the Reservoir and the Esopus are in any sense the “same,” such that “addition” of one to the other is a logical impossibility. When the water and the suspended sediment therein passes from the Tunnel into the Creek, an “addition” of a “pollutant” from a “point source” has been made to a “navigable water,” and the terms of the statute are satisfied.

The Second Circuit further rejected the “unitary waters” theory, because it “would mean that movement of water from one discrete water body to another would not be an addition even if it involved a transfer of water from a water body contaminated with myriad pollutants to a pristine water body containing few or no pollutants. Such an interpretation is inconsistent with the ordinary meaning of the word ‘addition.’” Moreover, the court’s opinion took a holistic view of the law – as EPA purports to do with its proposed rule – and nevertheless found that Clean Water Act protections were justified.

The Second Circuit recently reconsidered its decision in Catskill, and reaffirmed its conclusion that transferring polluted water between water bodies is subject to the Clean Water Act. The court rejected several “warmed-up arguments” from the prior decision, finding that: (1) the dam cases (upon which EPA presently relies) were distinguishable and the fact that a particular transfer involves separate water basins was legally significant under the Act; (2) the rejection of the “unitary waters” theory “is supported by Miccosukee, not undermined by it”; and (3) EPA’s “holistic” reading of the statute, reflected in the August 2005 memorandum, “simply overlook[s] its plain language.”

In Northern Plains, the court found that groundwater pumped to the surface from coal beds in order to extract methane was polluted in numerous ways and discharging it to a water of the United States required a permit. Although the case turned on whether coal bed methane (CBM) water was a “pollutant,” because it was unaltered before being discharged, the Ninth Circuit stated that “[t]he issue of whether CBM water is a pollutant is practically indistinguishable from the issues considered by [the transfer] cases,” and concluded that it was nonsensical to allow the unregulated movement of “unaltered” water:

[I]t would allow someone to pipe the Atlantic Ocean into the Great Lakes and then argue that there is no liability under the [Clean Water Act] because the salt water from the Atlantic Ocean was not altered before being discharged into the fresh water of the Great Lakes. Or, water naturally laced with sulfur could be freely discharged into receiving water used for drinking water simply because the sulfur was not added to the discharged water. Such an argument cannot sensibly be credited.

Accordingly, the Ninth Circuit’s view is consistent with that expressed in other cases.

Finally, in Miccosukee, the Eleventh Circuit made clear that a water transfer project between waters of the United States requires permitting:

When a point source changes the natural flow of a body of water which contains pollutants and causes that water to flow into another distinct body of navigable water into which it would not have otherwise flowed, that point source is the cause-in-fact of the discharge of pollutants. And, because the pollutants would not have entered the second body of water but for the change in flow caused by the point source, an addition of pollutants from a point source occurs.

The court also specifically rejected the “unitary waters” theory.

VI. EPA’s attempt to define “water transfer” shows how arbitrary its proposed rule is.

Congress passed the Clean Water Act and initiated federal permitting pursuant to the NPDES program with the goal of maintaining and restoring the nation’s waters. Under EPA’s interpretation of the Clean Water Act, however, the most polluted navigable water could be re-routed by a pipe or a pump and discharged into the most pristine navigable water or wetland – where it never had and never would have traveled but for the pipe or pump – and no NPDES permit would be required. Such a result undermines the very goal of the Clean Water Act and flies in the face of Congressional intent to use permits to maintain and restore our nation’s water quality.

The degree to which EPA’s proposal veers arbitrarily from its historic practice and the Act’s essential policy can be seen when the proposal is compared to two kinds of transfers for which the agency – rightly – proposes to continue to require permits. First, because EPA defines “water transfers” as movements which occur between “waters of the United States,” an entity moving slightly polluted water from a non-jurisdictional water into a water of the United States might be required to get a permit, but one moving far more polluted water from a different surface water of the United States to the same receiving water would not.. Second, waters that are taken from one water into an industrial operation, cleaned up (with some pollutants still remaining), and discharged into another water, would be covered by the permitting program – because an “intervening industrial, municipal, or commercial use” would disqualify a water movement activity from being an exempt “water transfer.” In contrast, the direct movement of more polluted water from another jurisdictional source would not require a NPDES permit under EPA’s proposal. Although requiring permits for discharges of partially cleaned water makes sense and is consistent with the Act because the residual pollutant load could still harm water quality, the proposed rule would not require a permit for the direct movement of the more polluted water. This is simply arbitrary.

VII. Requiring NPDES permits for water transfers is not unnecessarily burdensome.

Requiring NPDES permits of water transfers is not unnecessarily burdensome as EPA suggests in describing the background for the proposed rule. Regulators and courts that have weighed in on the issue of administrative burdens associated with NPDES permitting in the context of water transfers have found that requiring water transfer operators to obtain NPDES permits is appropriate in light of the advantages such permitting offers in protecting our nation’s water quality (not to mention the advantages it offers for meeting the Clean Water Act’s explicit permitting requirements for any addition of pollutants to waters of the United States from point sources). Moreover, the time and costs associated with permitting can be mitigated. Pennsylvania, which regularly requires permits for water transfers, has found that “the NPDES program provides a flexible, efficient, and effective means to protect water quality and stream uses.” Similarly, a recent federal court decision highlights the myriad ways that the NPDES program allows regulators flexibility in protecting our nation’s waters.

Pennsylvania’s Department of Environmental Protection, which has a 20-year history of requiring NPDES permits for water transfers, has both made clear the importance of and downplayed any burden associated with its NPDES program for water transfers. In its Policy for Permitting Surface Water Diversions, the Department states that its NPDES program allows it, among other things, to: (1) require that water moved from one navigable water attain appropriate water quality standards before it is discharged into other navigable waters; (2) specify the monitoring needed to ensure that those water quality parameters are achieved; (3) set forth a schedule for attaining compliance if one is needed; and (4) enforce water quality restrictions or other requirements where they are not met. Although Pennsylvania has routinely required NPDES permits of water transfers since 1986, the state has not experienced any significant administrative problems as a result of its permitting program. In fact, it has expressed concern about actions that would undermine its ability to continue its NPDES permitting program for water transfers.

Examining the details of a proposed water transfer and NPDES permit in New York, the Second Circuit in Catskill Mountains II also found no merit to arguments that the administrative burdens of NPDES permitting would lead to significant practical consequences and disruptions of needed water transfers. That court looked at the experience of New York City in applying for a NPDES permit for a water transfer made as part of complex operations routing water for public supply to the City and found that the NPDES program offered sufficient flexibilities to both protect water quality and allow needed water transfers. Although the City had apparently argued that requiring NPDES permits of water transfers would lead to an end to those transfers, the court noted that, after its 2001 decision requiring NPDES permits for the City’s water transfer, New York’s Department of Environmental Conservation had issued a draft permit that included provisions designed to account for natural variations in water conditions and to protect public water supplies in the event of drought or other emergency situations. The court described in detail many of the flexibilities the Clean Water Act offers regulators – in particular its provisions allowing for compliance schedules and variances in specified circumstances – and suggested that those flexibilities may provide additional avenues open to regulators and New York City (provided the Act’s requirements are met) if the City cannot meet effluent requirements specified in its NPDES permit.

Finally, as the Supreme Court noted in Miccosukee, the Clean Water Act also allows regulators to issue general permits in specified circumstances. In particular, where waters transfers are shown to pose little or no threat to water quality in receiving waters, the issuance of such general permits may be appropriate. For example, water supply districts that move high quality water for drinking water supply purposes may be appropriate candidates for the use of general or nation-wide permits and single system-wide permits. In short, as those who have experience with and have examined in detail the use of NPDES permits for water transfers have uniformly concluded, the NPDES permit system is not overly burdensome for discharges of pollution into navigable waters.

VIII. Environmental Justice

This proposed rule fails entirely to consider the affect exempting transfers of polluted waters without NPDES permits on minority and low-income communities, violating executive and legislative directives as well as EPA’s own guidance on environmental justice.

President Clinton issued Executive Order 12898 in 1994, stating that “each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income residents.” This executive mandate requires EPA to evaluate the effects of proposed rulemakings – including this one – on minority and low-income populations.

EPA’s own guidance states that environmental justice concerns should be considered early in the rulemaking process. Despite the E.O. and EPA’s own guidance, this proposed rule does not even mention the possibility that these transfers could have an effect on low-income and minority communities. Further, Congress sent a clear message to EPA regarding the importance of environmental justice when it amended the Appropriations bill for two consecutive years to forbid EPA from using any funds “in contravention of, or to delay the implementation of,” the Executive Order. The promulgation of this rule with no consideration of its environmental justice effects is a violation of this Congressional edict.

Ignoring the environmental justice effects of this rulemaking is not only illegal, it could create significant public health threats. “[M]inorities and low-income communities are disproportionately exposed to environmental harms and risks,” including the risks posed by polluted water transfers infecting drinking water supplies and fish populations. As EPA did not do the slightest analysis on the possible environmental justice effects of polluted water transfers, it is difficult to estimate the extent of the harm posed. It is not difficult, however, to understand the impact on low-income and minority communities should polluted water be transferred into drinking water supplies, a strong possibility if this rule is implemented.

That the proposed rule ignores EPA’s own guidance, a longstanding Executive Order, and the explicit requirement of Congress by failing to analyze the effect of this misguided rule on environmental justice communities, is another important reason why EPA should withdraw this rule.

CONCLUSION

For the foregoing reasons, we urge EPA to immediately abandon the proposed rulemaking. The potential harm from water transfers to the water quality in the receiving waters and the associated harm to the users of those waters is too great to be exempted from the Clean Water Act. In addition, the proposal is contrary to the letter, structure, and purpose of the Clean Water Act.


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