EPA water rule revived by U.S. appeals court in NYC case

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By Jonathan Stempel | NEW YORK

NEW YORK A divided U.S. appeals court on
Wednesday revived an Environmental Protection Agency rule
permitting government agencies to transfer water between
different bodies, such as rivers and lakes, without needing to
safeguard for pollution.

Reversing a lower court ruling in the widely followed case,
a 2-1 panel of the 2nd U.S. Circuit Court of Appeals in New York
said the EPA acted reasonably in 2008 in adopting its “Water
Transfers” rule, over the objections of environmental groups.

The decision is a victory for New York City, and will help
it provide its 8.5 million residents with “a reliable supply of
clean and safe drinking water,” said Hilary Meltzer, deputy
chief of the New York City Law Department’s environmental law
division.

At issue was whether the EPA, citing Congressional intent,
properly exempted the city from needing a Clean Water Act permit
to draw water from the upstate Schoharie Reservoir, through an
18-mile tunnel discharging sediment-laden water into the Esopus
Creek popular with trout fishers, and later to city faucets.

Writing for Wednesday’s majority, Circuit Judge Robert Sack
said federal courts should not second-guess the EPA view that
the rule properly balanced the need to improve water quality
with the potentially high cost of permits.

“While we might prefer an interpretation more consistent
with what appear to us to be the most prominent goals of the
Clean Water Act,” Sack wrote, “so long as the agency’s statutory
interpretation is reasonable, what we might prefer is
irrelevant.”

The 85-page decision reversed a March 2014 ruling by U.S.
District Judge Kenneth Karas in White Plains, New York.

Circuit Judge Denny Chin dissented. He called the EPA’s
position “unreasonable, arbitrary and capricious,” and said
Congress “did not intend to give a pass to interbasin transfers
of dirty water.”

New York and eight other states, the Canadian province of
Manitoba, and groups including the National Wildlife Federation
and Waterkeeper Alliance opposed the EPA rule.

California and 11 other Midwestern and Western states joined
New York City in supporting the rule.

Also supporting it was the South Florida Water Management
District, which oversees an area where polluted water has been
pumped from canals into Lake Okeechobee.

Daniel Estrin, Waterkeeper Alliance’s general counsel, said
his group is disappointed that the court accepted the “harmful
and misguided” EPA rule, and will review its next steps.

A spokesman for New York Attorney General Eric Schneiderman
declined to comment. The EPA and the South Florida district had
no immediate comment.

The case is Catskill Mountains Chapter of Trout Unlimited
Inc et al v. EPA et al, 2nd U.S. Circuit Court of Appeals, Nos.
14-1823, 14-1909, 14-1991, 14-1997, 14-2003.



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