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A rule proposed by the U.S. EPA would clarify that permits are not required for transfers of water from one body of water to another. Such transfers include routing water through tunnels, channels, or natural stream courses for public water supplies, irrigation, power generation, flood control and environmental restoration.
“The Water Transfer Rule gives communities needed flexibility to protect water quality, prevent costly litigation and promote the public good,” said EPA Assistant Administrator for Water Benjamin H. Grumbles. “President Bush is committed to cleaning and protecting the nation's water resources, and this rule keeps the Clean Water Act focused on water pollution, not water allocation.”
Thousands of water transfers currently in place across the country are vital to the water infrastructure. Whether a permit is needed under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) has been an issue in numerous court cases in recent years. The proposed rule would define such transfers as the movement of water between bodies of water without subjecting the water to intervening industrial, municipal or commercial use.
In 2004, the question of whether NPDES permits were necessary for water transfers went before the U.S. Supreme Court in South Florida Water Management District v. Miccosukee Tribe of Indians. The court did not rule directly on the issue, generating uncertainty about the need for a permit. EPA concluded in 2005 that Congress intended water resource-management agencies and other state authorities to oversee water transfers, not the NPDES permitting program. This rulemaking codifies that conclusion.