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Abstract

Congress enacted the Clean Water Act (CWA) in 1972 with the express objective of restoring and maintaining the health of the nation’s waters. To achieve this objective, Congress declared that discharges of pollutants into the nation’s waters are prohibited unless they comply with permit requirements. The CWA’s primary vehicle for regulating discharge permits is the National Pollutant Discharge Elimination System, or NPDES. The CWA defines the phrase “discharge of a pollutant” as the “addition of any pollutant to navigable waters from any point source.” Although the CWA further defines the terms “pollutant,” “navigable waters,” and “point source,” it fails to provide a definition for the term “addition.” As a result, courts have struggled to delineate the circumstances under which an “addition” occurs under the Act. In particular, courts have wrestled with whether a transfer of polluted water from one distinct water body into another distinct water body, referred to as an “interbasin transfer,” is an “addition” that requires a NPDES permit. In Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, the Second Circuit held that such transfers are “additions,” and distinguished them from “intrabasin transfers,” or transfers that occur within a single water body, which the court stated did not require NPDES permits. Subsequently, in strong dicta, the Supreme Court in South Florida Water Management District v. Miccosukee Tribe of Indians suggested that it agreed with the Second Circuit’s framework for distinguishing “additions” based on the extent to which the water bodies involved in a water transfer are distinct. Following the Supreme Court’s decision in Miccosukee, the EPA announced plans to amend its CWA regulations to categorically exclude water transfers from the NPDES permitting program, and, in June 2006, it published a proposed rule having that effect. Contrary to the rationale in Catskill and Miccosukee, the EPA’s proposed water transfer rule does not distinguish between interbasin and intrabasin water transfers. Rather, the EPA claims that several provisions in the CWA indicate that the regulation of water transfers falls under the authority of the states to manage water allocations. Because the NPDES program would interfere with the authority of states to allocate quantities of water, the EPA concluded that water transfers are expressly excluded from NPDES requirements. Agency nonacquiescence is the refusal by administrative agencies to follow the decisions of lower federal courts. Nonacquiescence takes two forms: intercircuit nonacquiescence and intracircuit nonacquiescence. Intercircuit nonacquiescence occurs when an agency refuses to apply the law of one circuit in proceedings taking place in another circuit. In contrast, intracircuit nonacquiescence occurs when an agency refuses to adjust its policies within a circuit after an adverse ruling by that circuit. Generally, agencies argue that nonacquiescence is necessary to ensure the uniform administration of agency regulations and the development of law that takes place through intercircuit dialogue. However, nonacquiescence also implicates grave separation of powers concerns, and it is questionable whether the presumed benefits of uniformity and intercircuit dialogue outweigh the harms that nonacquiescence presents to the judiciary and the development of administrative law. The purpose of this Note is to evaluate the EPA’s proposed water transfer rule in the context of agency nonacquiescence.

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