Speaking before an industry trade association conference this morning, U.S. Environmental Protection Agency Assistant Administrator for Water Benjamin Grumbles announced that the agency was issuing the so-called water transfer rule.
The EPA's new rule would exempt an entire class of water polluters from the Clean Water Act. The new rule would allow contaminants to be dumped into drinking water sources as well as lakes and streams by water transfer operations. Under the EPA rulemaking, facilities can "transfer" contaminated water from one waterbody into a cleaner receiving water body without obtaining a permit limiting water pollution and requiring compliance with water quality standards.
The rule is intended to effectively overrule a 2006 federal court decision which declared the practice of unpermitted pollution pumping to be illegal. (See Friends of the Everglades, Inc. v. S. Fla. Water Mgmt. Dist.) Earthjustice attorney David Guest, who represented environmental groups in the successful lawsuit involving the pumping of polluted water into Florida's Lake Okeechobee, underscored the implications of the final rule and said the organization would challenge the rule of behalf of its client organizations.
"In the face of irrefutable evidence that transfers of contaminated water pose grave public health threats, the EPA is trying to disguise disposal of polluted water as allocation of water for later public use," said Guest. "If it poisons you when you drink it, it's not allocation for public use."
"EPA deliberately avoided even looking at the pollution implications of this rulemaking for public health across the nation because they know the consequences in many instances, as in Florida, would be a blatant violation of water quality standards," added Earthjustice senior legislative counsel Joan Mulhern. "Today's action by EPA represents one of the last and worst pieces of this administration's anti-clean water agenda. Congress should exercise its oversight responsibilities and investigate how EPA can finalize such a sweeping rule without either a scientific or legal leg to stand upon."
In addition to the Florida case, federal courts in the First and Second circuits have also held that interbasin transfers of waters that result in the pollution of the receiving waterbody require a Clean Water Act permit. Earthjustice's Guest said the organization would challenge the rule of behalf of its client organizations.