Minnesota Attorney General Lori Swanson today joined eight other state Attorneys General and the Province of Manitoba, Canada in a lawsuit filed today against the United States Environmental Protection Agency (“EPA”) challenging its promulgation of the National Pollutant Discharge Elimination System (“NPDES”) Water Transfer Rule.

On June 9, 2008, the EPA published the Water Transfer Rule, which exempts from government permitting requirements the discharge of pollutants contained in “transfer waters.” A “water transfer” is the conveyance of water from one body to another without subjecting the water to “intervening industrial, municipal, or commercial use.” The EPA Water Transfer Rule allows polluted water to be directly discharged into pure water without any permitting requirements. NPDES permit requirements function as the primary mechanism for achieving the purposes of the Clean Water Act and to limit the amount and concentrations of pollutants and discharges into the nation’s water.

“Federal regulators jeopardize both our economy and our fishing, boating, and outdoors way of life by allowing polluted water to be diverted into Minnesota lakes and rivers,” Swanson said.

The Water Transfer Rule harms states like Minnesota by impairing their ability to take action to protect their waters from pollutants discharged from waters outside their borders. For example, Devil’s Lake is a land-locked lake in North Dakota containing high concentrations of a number of chemicals and such poor water quality that it has not been used for local drinking water. Devil’s Lake is located about 15 miles from the Cheyenne River, which flows into the Red River, which forms the boundary between North Dakota and Minnesota. The State of North Dakota has granted a permit to lower the water level of Devil’s Lake by draining it into the Cheyenne River. Because of the Water Transfer Rule, North Dakota has determined that water from Devil’s Lake may be discharged without any opportunity for Minnesota to comment on or oppose the discharge of the polluted waters.

The states’ lawsuit asserts that the EPA’s Water Transfer Rule does not address the impact of allowing unregulated transfers of polluted water into clean water, including introduction of chemicals, invasive species, and alteration of habitat. The states also allege that the EPA rule is inconsistent with a 2005 federal executive order which requires that federal agencies “not authorize, fund, or carry out actions that it believes are likely to cause or promote the introduction or spread of invasive species.”

The federal Clean Water Act prohibits the “discharge of any pollutant” into “navigable waters” of the United States unless the discharge is in compliance with NPDES permitting requirements. The Clean Water Act contains few narrow exceptions to the NPDES permit requirements, such as discharges composed entirely of return flows from irrigated agriculture or certain storm water runoffs. The Clean Water Act does not exempt from the permitting requirements discharges of pollutants contained in “water transfers.” In 2006, the United States Second Circuit Court of Appeals held that the plain language of the Clean Water Act required NPDES permits for pollutant discharges from water transfers. Despite the Second Circuit ruling, the EPA proceeded to promulgate the Water Transfer Rule.

Today’s lawsuit by Minnesota and the other states alleges that the EPA exceeded its authority in promulgating the Water Transfer Rule and that the Rule is arbitrary, capricious, and an abuse of the agency’s discretion. The Attorneys General of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Missouri, and Washington are also parties to the lawsuit, along with the Province of Manitoba, Canada. The lawsuit was filed in the United States District Court for the Southern District of New York.