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Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Environmental Protection Agency

ELR Citation: 44 ELR 20068
Nos. 08-CV-5606, -8430, (S.D.N.Y., 03/28/2014) (Karas, J.)

In a 100+ page opinion, a district court vacated EPA's water transfers rule, which excludes water transfers that convey or connect "waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use" from the CWA's NPDES permitting requirements. The court held that EPA's interpretation of "navigable waters" in promulgating the rule went beyond the limitations identified by the U.S. Supreme Court in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006). EPA interpreted “navigable waters” such that water would be considered navigable as long as it retained its “status” as a “navigable water” or “water of the United States." It then interpreted the scope of “navigable waters” within this status-based interpretation to include waters that have been withdrawn from navigable bodies of water but have not been subjected to an “intervening use." In so doing, EPA adopted an interpretation of “navigable waters” that expanded the scope of that phrase to include any water that has the “status” of “navigable water.” And it further expanded the scope of that interpretation when it clarified that water withdrawn from a navigable waterbody loses its status only when subjected to an “intervening use.” In addition, many of the types of conveyances contemplated by the water transfers rule would not be considered a “navigable water” under any of the three standards used in Rapanos. For example, where the rule defines NPDES-excluded water transfer activities to include “any system of pumping stations, canals, aqueducts, tunnels, pipes, or other such conveyances,” a status-based interpretation of these conveyances considering them to be “navigable waters” would exclude from NPDES regulation point-source pollutant discharges that Congress clearly intended to regulate.