The big water rights news of last week – probably of the month as well – came from the New York City area, a place not usually thought of as a centerpoint of water right activity.
And though water rights weren’t most specifically on point in the U.S. 2nd Court of Appeals decision in Catskill Mountains Chapter of Trout Unlimited et al v. Environmental Protection Agency, but anyone who sees the relationship between those rights and water transfers will get it right away.
In essence, the decision reinstates (it had been knocked out in lower court) a rule dating to the Bush Administration, which said that the regulatory procedures imposed under the Clean Water Act do not apply to direct transfers between water bodies or basins.
It draws a significant line between matters of water quality and water supply, and that could be significant nationally eventually. The decision at this point applies only to the 2nd appellate district, in the country’s northwest. But such decisions often spread to other districts over time; and rules in other places may well be challenged in this wake of this decision.
What are the stakes?
A Colorado Law Review article said of the reinstated Water Transfers Rule that it “is untenable because it significantly weakens the CWA by increasing the likelihood that water transfers will introduce pollutants into clean lakes and rivers. Furthermore, it has revitalized the unitary waters theory, which, if adopted in other jurisdictions, will impede the ability to ensure that clean water quality standards are maintained.”
The court countered in its decision that “the Water Transfers Ruleʹs interpretation of the Clean Water Act – which exempts water transfers from the NPDES permitting program – is supported by several reasonable arguments. The EPAʹs interpretation need not be the ‘only possible interpretation,’ nor need it be ‘the interpretation deemed most reasonable.’ And even though, as we note yet again, we might conclude that it is not the interpretation that would most effectively further the Clean Water Actʹs principal focus on water quality, it is reasonable nonetheless. Indeed, in light of the potentially serious and disruptive practical consequences of requiring NPDES permits for water transfers, the EPAʹs interpretation here involves the kind of ‘difficult policy choices that agencies are better equipped to make than courts.’ʺ
In other words, the court’s decision isn’t necessarily dispositive in all cases: Clean Water Act considerations may be considered, but are not imposed everywhere.
The decision does seem to tilt the field a bit in favor of transfers, in that it lowers a hurdle those efforts sometimes have to struggle with.
But the longer-term impact will take a while to sort out, as challenges turn up in other courts in years to come. And it will be years: Remember, this challenge leading up to this decision lasted almost exactly as long as the Obama Administration did.