Catskill Mountains Chapter of Trout Unlimited Inc., et al. v. U.S. EPA

Briefing is complete in Catskill Mountains Chapter of Trout Unlimited Inc., et al. v. U.S. EPA, which is EPA's appeal of a lower court decision  that vacated key portions of the 2008 Water Transfers Rule . The rule exempts transfers of natural, untreated water for purposes of water supply or flood control from regulation under the NPDES program. If the lower court decision is upheld on appeal, many water transfers will likely require NPDES permits.

On December 1, 2015, the U.S. Court of Appeals for the Second Circuit heard oral arguments in the case. At least two of the three judges at the hearing seemed inclined to defer to EPA's judgement in the original rule and its exemption of water transfers from the permit program.

In September 2014, NACWA joined the American Water Works Association, the Association of Metropolitan Water Agencies, the National Association of Water Companies, the Water Environment Federation, and the U.S. Conference of Mayors to file an amicus curiae brief  highlighting the significant operational and regulatory challenges that permitting of water transfers would present to municipal water supply and flood management programs. The brief argues that the CWA never envisioned – nor did Congress intend for – permitting of these types of transfers since they do not result in any addition of new pollutants to receiving water bodies. The brief also argued that the NPDES program is the wrong tool to regulate such transfers, suggesting that other approaches such as federal drinking water requirements, the TMDL program, and state regulations are better suited to address concerns over water transfers.

NACWA has long supported the exemption of water transfers from the NPDES permitting scheme and was pleased to support filing of a broad municipal amicus brief in this case.

Rulings/Pleasdings/Related Documents (All in format)

• 2008 Water Transfers Rule, 06/13/2008

US District Court, NY (Case No. 08-5606)

• District Court Ruling, 03/28/2014

US Court of Appeals, Second Circuit (Case No. 14-1823)

• Western States Brief, 09/09/2014
• Municipal Water Districts’ Brief, 09/10/2014
• EPA Brief, 09/11/2014
• New York City Brief, 09/15/2014
• Joint Amicus Brief, 09/22/2014
• NGO Brief, 12/23/2014
• EPA Reply Brief, 01/26/2015
• Western States Reply Brief, 01/26/2015
• New York City Reply Brief, 01/26/2015