Chris Reagen


Water transfer is a term that describes the movement of water from an area where water is available to another area where water is scarce. This process has enabled otherwise uninhabitable lands in the western United States to support large cities and agricultural districts. In Friends of the Everglades v. South Florida Water Management District, the Eleventh Circuit upheld a rule that removed federal water quality restrictions on water transfers. This rule codified the Environmental Protection Agency (EPA) position that the National Pollution Discharge Elimination System (NPDES) requirement of the Clean Water Act (CWA) does not apply to water transfers that do not subject the water to an intervening use. The rule clarifies that a water transfer does not constitute an "addition" of a pollutant under the CWA that triggers the NPDES requirement. This is true even when the water source contains pollutants that the receiving body of water does not. In essence, the EPA's Water Transfers Rule adopted the highly controversial unitary waters theory. This Note explores the potential effects of the EPA's Water Transfers Rule and concludes that the current rule is untenable. It discusses the importance of water transfers in the western United States and how NPDES permits can limit the movement of water to areas where water is scarce. It then discusses complex water diversions that transfer water across state lines and proffers that federal oversight is necessary to control pollution that results from water diversions. Finally, this Note argues that the Water Transfers Rule should be replaced by a general NPDES permit system that balances the EPA's rule and an individual NPDES requirement for each water transfer.

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