AWWA JAW60476

This article discusses two legal disputes currently making their way through federal courts that address the question of whether congress intended the pollutant discharge permit requirements of the Clean Water Act (CWA) to apply to engineered conveyances of raw waters by drinking water suppliers. If the ruling is affirmative, the drinking water suppliers would be negatively impacted by the outcome. Central to the dispute is whether Congress, as the US government has argued, intended the CWA to consider the navigable US waters it aims to restore to be a single body of water that can be polluted only by the initial "addition" from a National Pollutant Discharge Elimination System (NPDES)-regulated point-source discharge into those waters. If so, transferring any amounts within that collective water body necessarily cannot amount to new additions of pollutants subject again to NPDES permits. Of particular concern to water utilities is the fact that in both cases, courts have distinguished between intrabasin and interbasin transfers in considering the applicability of NPDES permit requirements, finding that NPDES requirements can apply to interbasin transfers involving the discharge of water from one basin into a separate one.