The West would be uninhabitable if not for engineering marvels that bring water from near and far to agricultural and urban areas. But a recent court ruling would create regulatory hurdles that would make these critical water transfers difficult to accomplish and prohibitively expensive, according to the Western Governors’ Association.
The Western Governors’ Association (WGA) and the Western States Water Council are urging the Environmental Protection Agency (EPA) to appeal a recent decision by the U.S. District Court for the Southern District of New York that vacated and remanded the “water transfers rule.”
The rule clarifies that water transfers are not subject to National Pollutant Discharge Elimination System (NPDES) permit requirements under Section 402 of the Clean Water Act (CWA).
A letter sent on May 12 to EPA Administrator Gina McCarthy, co-signed by WGA Executive Director Jim Ogsbury and WSWC Executive Director Tony Willardson, points out that water transfers historically have not been subject to the NPDES Program and the federal government has deferred to the states’ control of water allocation and administration within their borders. (Click here to read letter)
The CWA also does not contain a clear statement that it intended the NPDES Program to govern transfers. To the contrary, Section 101(g) expressly states that the CWA 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 WGA Executive Director Jim Ogsbury. “Requiring NPDES permits for these transfers will be prohibitively expensive and could curtail certain transfers, with little if any water quality benefits.”
In addition, the letter notes that such a requirement also will increase the uncertainty that already exists regarding the West’s water supplies by hindering the states’ ability to provide water to their citizens and economies, as well as plan for droughts, extreme events and growing water demands.