I can’t find this on EPA’s web site, but BNA’s U.S. Law Week and the Association of Metropolitan Water Agencies are reporting that the agency plans to reconsider the Bush-era rule exempting water transfers from the Clean Water Act’s NPDES permit requirements. As I previously explained, the 11th Circuit upheld the water transfers rule this summer in a questionable decision that concluded that the rule was a reasonable interpretation of an ambiguous statutory provision. Responding to environmental plaintiffs’ request for rehearing en banc in that case, the Department of Justice has told the court that EPA intends to reconsider the rule. A challenge to the water transfers rule is also pending in the Southern District of New York.
EPA confirmed to BNA that it plans to reconsider the water transfers rule because it “has concerns about the water quality impacts of some water transfers.” EPA did not suggest that it will mandate permits for all water transfers. Instead, the agency said that it “intends to tailor any new revisions to transfers with serious water quality impacts and to avoid unnecessary burdens on water providers and users.”