Applying Chevron deference, the U.S. Court of Appeals for the
Second Circuit on January 18, 2017, reversed the Southern District
of New York by a 2-1 margin and concluded that the United States
Environmental Protection Agency's (the "EPA") Water
Transfers Rule that permits transfers between waters of the United
States without a National Pollutant Discharge Elimination System
("NPDES") permit was sound. (Catskill Mountains
Chapter of Trout Unlimited, Inc. et al. v. USEPA, et al., U.S.
Court of Appeals, Second Circuit, Docket Nos. 14-1823, 14-1909,
14-1991, 14-1997, 14-2003, 2017 U.S. App. LEXIS 914). The
controversy stemmed from the transfer of water from the Schoharie
Reservoir through the Shandaken Tunnel into the Esopus Creek in New
York. Historically, the EPA has taken a hands-off approach to
water transfers, choosing not to subject them to the requirements
of the NPDES permitting program established by the Clean Water Act
("CWA") in 1972.
