EPA: CWA 402 permit not needed for water transfers

The Environmental Protection Agency is proposing a rule to clarify that hydropower plants do not require pollution permits under Section 402 of the Clean Water Act if they merely transfer water between two bodies of water. The agency released the proposal June 7 and set July 24 as the deadline to receive comments.

The proposal would clarify Section 402 by codifying long-standing interpretations that the National Pollutant Discharge Elimination System permitting program does not apply to water transfers. Such a rule would benefit hydro projects that depend on water transfers between two bodies of water, where the transfers meet the proposed definition, the law firm Van Ness Feldman said.

EPA states the Clean Water Act's statutory language and structure indicate Congress did not intend to subject water transfers generally to the NPDES program. Rather, EPA said, Congress intended to leave oversight of water transfers to water resource management agencies and the states in cooperation with federal authorities.

EPA noted pollutants in transferred water are best addressed through water resource planning and land use regulations, and cited CWA Section 401, which requires state certification of water quality for federally licensed hydro projects. In May, the Supreme Court ruled on Section 401, upholding state CWA certification in hydropower licensing cases and saying certification is essential to preserve state authority to address a broad range of pollution. (HNN 5/16/06)

As for Section 402, for those hydro facilities utilizing only a single body of water, the proposed rule states EPA's interpretation that the movement of such water through a dam does not require an NPDES permit. It says movement of water through a dam is not a water transfer because the dam merely conveys water from one location to another within the same body of water.

Thus, NPDES permits would not be required for movement of water through a dam nor for water transfers between two waters because no "addition" of a pollutant would have occurred.

Van Ness Feldman said the proposed rule should go a long way toward eliminating confusion and litigation related to the applicability of Section 402 to hydroelectric facilities.

Rule addresses South Florida Water Management case

EPA drafted the proposed rule in response to the U.S. Supreme Court's 2004 decision in South Florida Water Management District v. Miccosukee Tribe of Indians. The Supreme Court remanded that case for further fact-finding as to whether two waters in question were "meaningfully distinct."

Since the remand, the scope of Section 402 has been debated, including whether the movement of pollutants from one navigable water to another by means of a water transfer constitutes the "addition" of a pollutant, thereby potentially subjecting the activity to NPDES permitting. A U.S. District Court in Florida is scheduled to begin hearing arguments on the case Sept. 13.

EPA said it prefers to receive comments electronically through the federal eRulemaking Portal: www.regulations.gov. Follow online instructions for submitting comments, which should be identified by Docket No. EPA-HQ-OW-2006-0141.

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