By Mark Scharfenaker
Two significant recent water developments on the federal front have triggered responses by the Western Governors Association.
1. EPA Water Transfer Rule
The WGA, joined by the Western States Water Council, has urged the US Environmental Protection Agency to appeal a recent federal court ruling that remanded the agency’s Water Transfers Rule for reconsideration.
EPA adopted the rule on the heels of several court rulings addressing whether the Clean Water Act requires National Pollutant Discharge Elimination System permits for moving water from one body of water to another without any intervening industrial, agricultural or commercial use of that transferred water. Some have argued that such permits are required for transfers that introduce pollutants into the receiving body, but EPA’s rule says no.
Such transfers are the routine stuff of many western waters projects, and none have ever been subject to NPDES permitting.
But In a 116-page ruling, a judge of the US District Court for the District of New York, vacated the rule “to the extent it is inconsistent with” the CWA and remanded it to EPA “to the extent EPA did not provide a reasoned explanation for its interpretation.”
In a May 12 letter to EPA Administrator Gina McCarthy, WGA Executive Director Jim Ogsbury and WSWC Executive Director Tony Willardson that the CWA supports the EPA rule by expressly stating that the law will not supersede or abrogate the rights of states to allocate water quantities within their jurisdiction, and that water rights established by state law shall be protected.
“Western states rely on thousands of intrastate and regional transfers to move billions of gallons of water to satisfy domestic, agricultural and industrial needs,” said Ogsbury. “Requiring NPDES permits for these transfers will be prohibitively expensive and could curtail certain transfers, with little if any water quality benefits.”
2. Water Resources Reform and Development Act
WGA has commended Congress for its near-unanimous votes in both the House and Senate to approve reauthorizing and streamlining the nation’s major water infrastructure program. The subject of months of negotiation by a House-Senate conference committee, the measure primarily covers US Army Corps of Engineers projects but also includes language amending the Clean Water State Revolving Fund and creating a new 5-year pilot program titled the Water Infrastructure Financing and Innovation Act.
WGA said the bill “delivers significant ‘wins’ for Western Governors,” including continuing to “recognize and protect states’ interests and rights in water management, and to block the U.S. Army Corps of Engineers from charging for surplus water.”
The bill, which awaits a signature by President Obama to become law, also provides for improved protection for communities from extreme weather and natural disasters as well as flood protection and safety improvements. It also provides for ecosystem protection and regional water resources initiatives.
Mark Sharfenaker has been a writer and editor for the American Water Works Association since 1986 and the AWWA website editor since 2008, his contributions to the Your Water Colorado Blog include The Value of Water. He moved to Colorado in 1982 after a 10-year stint in Montana, where he earned an undergraduate degree in Journalism at the University of Montana and learned the joys of fly fishing and the wonders of western waters.
Read other posts by Mark here:
As Big As It Gets: Clean Water Act Rulemaking