After a 16 year-battle to preserve federal water transfer rules, Western states and water providers can finally rejoice. Late last month, the U.S. Supreme Court denied certiorari in a case involving several states and districts on water transfers, reaffirming a 2nd Circuit opinion from 2017 that excludes those transfers from pollutant permits under the Clean Water Act.
“We had not won anywhere along the line until we got to the 2nd Circuit, and there we won with a divided court,” Berg Hill Greenleaf Ruscitti partner Peter Nichols said. “Having the Supreme Court let that decision stand was a huge relief. It meant we finally achieved what we set out to achieve.” Nichols has served as lead counsel for the Western water providers throughout litigation.
Water transfers are exactly what they sound like — a transfer of water from one river basin to another to supplement shortages. Thousands of water transfers occur throughout the country every day, and through 50 major transmountain diversions and roughly 1,700 smaller transfers throughout the state, the Colorado River Basin supplies more than 50 million people in several states with water.
The Clean Water Act outlines a permit program called the National Pollutant Discharge Elimination System. The act prohibits anyone from emitting pollutants without a permit, which limits what can be discharged and sets forth other requirements to ensure water quality and public health. The language is broad; it states that if one “discharge[s] from a point source into the waters of the United States,” a permit is required. But Nichols said prior to adopting the rule, the EPA had never really regulated water transfers the same way it did water emissions from things like mines or sewage plants.