Category Archives: Clean Water Act

Water Transfer Rule upheld by 2nd Circuit Court of Appeals

The U.S. Court of Appeals for the 2nd Circuit in a 2-1 ruling reversed a lower court finding EPA’s Clean Water Act (CWA) rule exempting the transfer of water from one basin to another from discharge permits is a reasonable interpretation of the law, and therefore should be upheld under the agency judicial deference doctrine known as Chevron. The full ruling is here. An excerpt is below:

Before: SACK, CHIN, and CARNEY, Circuit Judges.

In 2008, the United States Environmental Protection Agency promulgated the ʺWater Transfers Rule,ʺ which formalized the Agencyʹs longstanding position that water transfers are not subject to regulation under the National Pollutant Discharge Elimination System permitting program established decades ago by the Clean Water Act.  Shortly thereafter, the plaintiffs, a consortium of environmental conservation and sporting organizations and several state, provincial, and tribal governments, challenged the Water Transfers Rule by bringing suit in the United States District Court for the Southern District of New York against the Agency and its Administrator.  After a variety of persons and entities on both sides of the issue intervened, the district court (Kenneth M. Karas, Judge) granted summary judgment for the plaintiffs on the ground that the Water Transfers Rule, although entitled to deferential review under the two‐step framework established by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), could not survive judicial scrutiny because it was based on an unreasonable interpretation of the Clean Water Act.  The district court accordingly vacated the Water Transfers Rule and remanded it to the Agency for further assessment.  We conclude that the Water Transfers Rule is based on a reasonable interpretation of the Clean Water Act and therefore entitled to Chevron deference.  Accordingly, the judgment of the district court is REVERSED.

“Myths and Facts” page on CWA “waters of the United States” misleading, spin

“Protecting drinking water” is typically used to justify addition regulation under the Clean Water Act (CWA). It is being used here as well to promote the EPA’s desired redefinition of “water’s of the United States”. The idea of “protecting drinking water” with this rule is complete spin.

This dispute has been going on in the political and technical arena for over 20 years and for good reason. Anyone who has actually had to deal with USEPA on a CWA 404 permit knows the abuse that will occur should the redefinition be enacted.

The writer of this “Myths and Facts” on the CWA are presenting only 1 particular legal perspective on legal fine points to skirt the underlying issues and ignore the practical realities one must face in dealing with real-world decisions imposed by overzealous government employees. Do Media Matters writers know how to identify a hydric soil and properly delineate a wetland?

USEPA water maps set the stage for more regulation, federal control

Using GIS to map geography and water resources is not new. This has been done by the USGS for many years. But now such maps become even more important as UESEPA moves to regulate and control all US water resources via the Clean Water Act (CWA). Not sure about this?

Well, does anyone recall the Two-Forks dam project proposed by Denver Water? In 1990, USEPA administrator Reilly (not Browner as previously mentioned) used the veto power of CWA Section 404c to kill the project after many years of development. ( click here ) Two-Forks was the first of such unilateral vetos by EPA of a large water project. We can expect many more administrative vetos large and small to follow if USEPA continues down the path it is currently on with regard to CWA jurisdiction over-reach.

“The Environmental Protection Agency secretly drafted highly detailed maps of waterways in all 50 states while pushing a controversial plan to expand regulatory power over streams and wetlands, according to a top House Republican who suspects the maps are a blueprint for when it’s time to pull the trigger.” click here


USEPA Water Transfer Rule vacated (sort of) and remanded

A federal judge overturned a USEPA rule exempting some water transfers from Clean Water Act (CWA) permit requirements. The reported reason for the ruling is because the agency misinterpreted the law’s requirements. Of course, it depends on who is doing the interpreting, and a judge with a liberal view of this particular law will tend to read into the law things no one else sees.

In Catskill Mountains Chapter of Trout Unlimited, Inc. et al v. EPA, et al., Judge Kenneth R. Karas, of the U.S. District Court for the Southern District of New York, vacated and remanded the 2008 water transfer rule. This rule allowed a transfer of water between two jurisdictional waterbodies, absent intervening industrial, agricultural or other use, without  a discharge permit.

This ruling, if not stayed, could require new and ongoing transfer operations to seek permits or face enforcement actions. The ruling tells USEPA to “reexamine and reevaluate some new ideas” on remand.

The ruling is a direct assault on irrigation districts and water wholesalers who must transfer water, which would now be subject to federal control with enforcement penalties. So appeal of the decision is very likely because such a permit system would allow over-reaching regulators to shut off water transfers.

USEPA attempts to expand jurisdiction over anything wet, or anything that could become wet

These agencies have attempted to push this rule across the goal line for many years. Here it is at last, unfortunately. And once again the citizens will need to speak and submit comments in order to stop it. The only nexus (connection) here is between EPA bureaucrats and the desire to control others. Although this proposal may read nicely because it uses flowery language, the astute observer will realize that there is something very important missing, which is common sense. This ruling is about giving government more control over land, more control over landowners, giving the Corp of Engineers something to do, and making EPA and other attorneys a lot of money in needless litigation. 

The summary is below. Click here for the prepublication notice.

“The agencies propose to define “waters of the United States” in section (a) of the proposed rule for all sections of the CWA to mean: traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional “waters of the United States” by rule – no additional analysis would be required. The agencies emphasize that the categorical finding of jurisdiction for tributaries and adjacent waters was not based on the mere connection of a water body to downstream waters, but rather a determination that the nexus, alone or in combination with similarly situated waters in the region, is significant based on data, science, the CWA, and caselaw. In addition, the agencies propose that “other waters” (those not fitting in any of the above categories) could be determined to be “waters of the United States” through a case-specific showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water, or the territorial seas. The rule would also offer a definition of significant nexus and explain how similarly situated “other waters” in the region should be identified.”


USEPA over-reaches on poultry farm discharges under Clean Water Act

November 5, 2013

Ms. Nancy K. Stoner Acting Assistant Administrator for the Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Ave, NW Washington, D.C. 20460

Dear Acting Assistant Administrator Stoner:

I write in response to a recent federal court decision which rejected the Environmental Protection Agency’s (EPA) misguided position that a West Virginia poultry farmer violated the Clean Water Act (CWA).  EPA’s claims against Ms. Lois Alt in Lois Alt v. EPA flew in the face of the CWA and were an example of EPA’s continued abuse of its regulatory and enforcement powers.[1] I was pleased to learn that last month EPA was held to account.

The Alt case resulted from EPA’s decision to threaten Ms. Alt because stormwater which flowed across her poultry farm and eventually into a “water of the United States” had (not surprisingly) come into contact with dust, feathers, and small amounts of manure located on the ground.  Despite the routine nature of Ms. Alt’s farm activities and her diligent implementation of environmental protection practices, EPA issued Ms. Alt a CWA compliance order and threatened her with civil penalties of up to $37,500 per day and possible imprisonment.

Ms. Alt bravely fought back, however, and her 2012 lawsuit led EPA to withdraw its draconian compliance order.  Yet Ms. Alt nonetheless continued her lawsuit against EPA, presumably because she understood that EPA would maintain its hostile approach to poultry farmers and other landowners unless someone forced EPA to answer to a court of law.

Last month, the United States District Court for the Northern District of West Virginia determined that EPA’s attempt to regulate Ms. Alt’s farm was unlawful, finding that “[c]ommon sense and plain English lead to the inescapable conclusion” that EPA had no business attempting to subject agricultural stormwater to National Pollutant Discharge Elimination System (NPDES) permitting requirements.[2]

The district court’s decision serves as a vindication for Ms. Alt’s fight as well as a refreshing reproach to EPA’s disdain for landowners throughout the country.  Indeed, in light of this decision, the Supreme Court’s decision in Sackett v. EPA,[3] and concerns expressed by elected officials and countless other Americans, EPA must seriously reconsider its CWA compliance order regime and enforcement priorities.

I reiterate, it is time the agency reconsider its CWA enforcement priorities.  In this regard, a good first step, and the best policy, would be for EPA to accept and implement nationally the decision’s analysis of the CWA.  Further, EPA should formally and immediately direct relevant staff and personnel at EPA Headquarters and throughout all regional offices to cease efforts to require farmers to obtain NPDES permits for agricultural stormwater under the dubious agency rationales repudiated in Alt.  It would reflect poorly upon EPA to ignore this decision and to continue to bully farmers with the threat of fines at the rate of $37,500 a day. 

If EPA nonetheless believes the Alt case was wrongly decided in spite of the cogent analysis provided by the district court, EPA should notify this committee and the public of any intent to appeal.  Rather, the proper course of action would be for EPA to accept the decision and apply it uniformly so that our farmers are not further confused or otherwise harassed by the agency.

It should not take taxing litigation to remove the government’s threat of ruinous fines and penalties for the productive and lawful use of private property, especially in circumstances where bureaucratic interference is clearly beyond the scope of federal regulatory authority.  Accordingly, I ask the following:

1. In order to reflect your commitment to this axiom, I ask that EPA accept the court’s decision and apply its ruling nationwide.

2. I ask further that EPA formally and immediately direct relevant staff and personnel to cease all efforts to require farmers to obtain NPDES permits for agricultural stormwater discharges.

3. If EPA is unwilling to accommodate the above two requests, it should file an appeal so that farmers know precisely where EPA stands with respect to the court’s decision.

EPA must abandon the flawed interpretation of the Clean Water Act it maintained in Alt, so that the specter of ultra vires agricultural stormwater regulation may come to an end.  If EPA disagrees with this approach, it must demonstrate so accordingly and transparently by announcing any intent to file appeal of the court’s decision in Alt.

I look forward to your response to the above requests no later than December 5, 2013.



David Vitter Ranking Member Environment and Public Works

Congressional Letter: Does USEPA believe the Clean Water Act applies to groundwater?