EPA Proposes Water Transfer Rule

Some say it poses a threat to water quality

The U.S. Environmental Protection Agency is proposing a new water transfer rule that would allow communities or other entities to move water from one source to another without applying for federal pollution permits to ensure water quality. This would apply whether the water was transferred to irrigate fields, generate power, control floods or provide drinking water.

In effect, the rule would exclude regulating water transfers under the Clean Water Act’s National Pollution Discharge Elimination System permitting program.

The proposed rule change has raised the ire of environmentalists concerned about the environmental consequences of water shifted from a polluted lake or river to an unpolluted body of water. They have been successful in winning several court cases that ruled permits are in fact required when water is transferred.
EPA’s position is that Congress never intended the agency to regulate water transfers. The agency has only required such permits in response to federal court rulings that required it to take such action. In its proposed rule, the agency stated that requiring such a permit would amount to “unnecessary federal interference.”
Uncertainty, however, prevails. In response, Ben Grumbles, assistant administrator in the EPA Office of Water, said the agency’s proposed rule will help remove confusion by clarifying the scope of the Clean Water Act.

Attorneys general of more than a dozen states have strongly taken issue with EPA position. In a forcefully worded letter to the EPA, the attorneys general of various states, including New York, Vermont, Connecticut, Delaware, Wisconsin, Illinois, Iowa, Kentucky, Minnesota, Missouri and Pennsylvania, stated that the proposed plan is in violation of the Clean Water Act.

They expressed concern the new policy would result in water transfers with varied harmful environmental consequences, with polluted water transferred into clean drinking water, salt water into fresh water, warm water into cold habitats, and chemical-laden water into irrigation water used for crops. They also argued that unregulated water transfers will further the spread of invasive species.

Western water agencies, on the other hand, are generally supportive of EPA’s proposed rule. They say requiring a federal permit to transfer water would be a burdensome and expensive encumbrance resulting in increased water costs to its customers and less secure water supplies.

The West is the land of mighty water projects, with water transferred and transported great distances for irrigation and drinking water. Arizona’s Central Arizona Project is a prime example of such a project.

Critics respond by saying that appropriate regulations would not be onerous. They argue that routine water transfers not involving serious pollution issues could get a general permit that could be expediently processed at less cost.

All-American Canal Lining On Hold

Controversy continues to beset plans to line the All-American canal with concrete in an effort to capture about 56,000 acre feet of seepage, with the “saved” water then going to the San Diego County Water Authority. In August, the 9th U.S. Circuit Court of Appeals ordered a halt to work on the project pending the hearing of an appeal filed to block the canal lining.

The development might also be viewed as a setback for Arizona which along with Nevada, another Lower Colorado River Basin State, supported the canal-lining project.

The project had previously surmounted a legal hurdle in July when a federal judge denied a petition by two California environmental groups and a Mexican business coalition to block the project. Their class-action lawsuit claimed that water Southern California gained by the canal lining would be at the expense of Mexican farmers and south-of-the-border wetlands.

Federal Judge Philip Pro rejected this claim as overly speculative. He labeled plaintiff’s claims that the relining would “eliminate the source of water for an entire farming community immediately south of the border” as highly speculative.

Many believed that the $251-million project lining the 23-mile section of the canal near the Mexicali border, a project planned for about 20 years, was then on track when the court of appeals side railed it by issuing without comment an emergency injunction to halt work on the canal. A hearing is scheduled for early December.

Those favoring the project, which has a deadline of the end of 2008, say the delay will set work back a year. Further, California taxpayers and San Diego County ratepayers will confront higher costs.
Most importantly, if the worst case scenario plays out and the project is unable to proceed, California will lose an important water source intended for use to meet an interstate agreement to reduce its use of Colorado River water. The relining issue thus is of concern to the seven Colorado River Basin States.
California would have to find water from another source. This would bring the state back to the drawing board to again consider redistribution, an issue that was considered settled when the 2003 agreement to reduced Colorado River water use was signed.

More than likely California would have to cover the loss within the state, although other Colorado River Basin States would likely feel nervous that the issue might also affect them.
Arizona also is concerned about another possible consequence: an adverse ruling might result in similar challenges to Arizona projects along the Mexican border near Yuma.

Meanwhile two additional cases were recently filed, in federal and state courts, to stop the All-American project pending the completion of a new environmental report. The suits claim that the original 1994 environmental report was outdated by subsequent changes that were made to the project. It is argued that a new environmental report must be drafted.