SCOTUS Leaves Bush-Era EPA Water Transfer Rule Alone

Last week, the United States Supreme Court declined to hear an important water rights case involving whether water can be transferred from one water body without a permit from the Environmental Protection Agency ("EPA").  As a result, the Second Circuit's decision to allow such water transfers without a permit remains in place.

EPA's 2008 "Water Transfers Rule" formalized the Agency's historic practice of taking a laissez-faire approach to transfers of water between water bodies largely for providing drinking water to the public, irrigation, and power generation.  The Rule defines a water transfer as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.  Per the Rule, the EPA did not require transferors to obtain National Pollution Discharge Elimination Permits prior to such transfers, even if the water being transferred contained pollutants.