Summary of a Recent
Judicial Development in
Clean Water Act

Court Stays Action Pending Resolution of Water
Transfer Issues by Eleventh Circuit

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. Environmental Protection Agency, --- F. Supp. 2d ---, 2009 WL 1174802 (S.D.N.Y. 2009), the United States District Court for the Southern District of New York held that a stay of proceedings pending resolution by the Eleventh Circuit of several related petitions concerning a newly issued Water Transfers Rule was appropriate, because doing so would promote judicial economy, minimize resources the parties would spend on duplicate litigation, and minimize the risk of inconsistent judgments.

Background

Several environmental and wildlife organizations brought this action challenging the National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule, 40 C.F.R. § 122.3(i), which was issued by the United States Environmental Protection Agency (EPA). Id. at *1. The Second Circuit had previously held that under the plain meaning of the Clean Water Act (CWA), "the transfer of water containing pollutants from one body of water to another, distinct body of water is plainly an addition and thus a 'discharge' that demands an NPDES permit." Id. at *3 (citing Catskill Mountains Chapter of Trout Unltd., Inc. v. City of New York, 273 F.3d 481, 491 (2d Cir. 2001)). The United States Supreme Court had subsequently adopted the view that if two bodies of water were not "meaningfully distinct" from one another, an NPDES permit would not be required. See id. at *4 (citing S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 112 (2004)). More recently, a Florida district court had rejected the EPA's interpretation of the CWA as excluding certain water transfers from the NPDES permitting requirements, applying the Supreme Court's "meaningfully distinct" inquiry, and the government had appealed to the Eleventh Circuit. Id. at *5-6. In June 2008, the EPA published the Water Transfers Rule, which provided that discharges from a water transfer do not require NPDES permits. Id. at *6. After the plaintiffs initiated this action, the City of New York intervened as a defendant in the suit, and the defendants moved to stay the proceedings pending the Eleventh Circuit's resolution of several other petitions also challenging the Water Transfers Rule. Id. at *1.

Analysis and Holdings

The court explained that the Second Circuit examines the following factors in deciding whether to stay proceedings:

(1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed;
(2) the private interests of and burden on the defendants;
(3) the interests of the courts;
(4) the interests of persons not parties to the civil litigation; and
(5) the public interest.
Id. at *8.

The court found that waiting for the Eleventh Circuit to issue its decision would conserve judicial resources, minimize the amount of time and resources the parties would spend on duplicative litigation, and minimize the risk of inconsistent judgments. Id. at *8-10. Lastly, the court held that the plaintiffs would not be prejudiced by a stay, and therefore it granted the defendants' motion to stay the action pending the Eleventh Circuit's resolution. Id. at *10-11.

The case was decided on April 29, 2009.