Bulk Transmission, Geothermal, Solar Water Resource Assessment (14)
The Clean Water Act is the primary federal law in the United States governing water pollution. The goal of the act is to drastically reduce water pollution in water of the United States and to make surface waters suitable for human sports and recreation.
The CWA addresses point source water pollution, non-point source water pollution, and the dredge and fill of wetland. The primary agency responsible for the CWA is the United States Environmental Protection Agency (EPA). Although, other federal and state agencies have a role in administering the CWA as well. In particular, the US Army Corps of Engineers administer 404 dredge and fill permits for wetlands.
The Safe Drinking Water Act (SDWA) provides the framework for protection of drinking water. SDWA requires that states develop source water assessment programs (SWAPs) that must be approved by the EPA. SWAPs are used to analyze existing and potential threats to the quality of public drinking water. The EPA developed Underground Injection Control (UIC) rules to protect underground sources of drinking water. When there is potential for ground water contamination by injection well, the developer must obtain an UIC permit. Typically, UIC permits are used for spent geothermal fluids, but are unnecessary for solar development. If there is potential ground water contamination by surface discharge, the developer will be required to obtain a permit through the state. Most of these controls are implemented by state agencies.
Water Resource Assessment Process
14.1 - Will the Project Affect Waters of the United States?
The Clean Water Act establishes the basic structure for regulating discharges of pollutants into the waters of the United States and establishes water quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act. The Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1972. Under the CWA, EPA has implemented pollution control programs such as setting waste water standards for industry. The CWA makes it unlawful to discharge any pollutant from a point source into waters of the United States, unless a permit is obtained under the EPA's National Pollutant Discharge Elimination System (NPDES). Point sources are discrete conveyances such as pipes or man-made ditches.
Waters of the United States
The CWA applies to "Waters of the United States" which is defined broadly by regulation under the Clean Water Rule as developed by the EPA and USACE. The effective date for this new rule is August 28, 2015. The new rule modifies the regulatory definition to more precisely define jurisdictional waters under the CWA. In most states the rule took effect immediately, however, a number of states have initiated litigation to challenge implementation of the new rule.
On August 27, 2015, the District Court of North Dakota issued a preliminary injunction halting the implementation of the new rule (see North Dakota, et al. v. EPA, Memorandum Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction). In light of the order, EPA and USACE will continue to implement the CWA through the prior regulatory definition under 40 CFR 230.3(s) in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting implementation of the new rule nationwide pending its own determination of its own exclusive jurisdiction to review the rule (see Ohio, et al. v. EPA, Order of Stay). If the court determines it has exclusive jurisdiction the stay will likely remain in place pending a determination on the merits of the case. The court anticipates it will make a jurisdictional determination within a few weeks of the date of its order to stay. Given this uncertainty, developers should anticipate continued litigation on this matter and continue to monitor the issue at the state and national level. The EPA provides information on the ongoing effort to implement the EPA Clean Water Rule Website.
Under 40 CFR 230.3(o)(1), the term "waters of the United States" means:
- (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- (ii) All interstate waters, including interstate wetlands;
- (iii) The territorial seas;
- (iv) All impoundments of waters otherwise identified as waters of the United States under this section;
- (v) All tributaries, as defined in 40 CFR 230.3(o)(3)(iii), of waters identified in paragraphs 40 CFR 230.3(o)(1)(i) through (iii);
- (vi) All waters adjacent to a water identified in 40 CFR 230.3(o)(1)(i) through (v), including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;
- (vii) All waters in 40 CFR 230.3(o)(1)(vii)(A) through (E) where they are determined, on a case-specific basis, to have a significant nexus to a water identified in 40 CFR 230.3(o)(1)(i) through (iii). The waters identified in each of paragraphs 40 CFR 230.3(o)(1)(vii)(A) through (E) are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in 40 CFR 230.3(o)(1)(i) through (iii). Waters identified in this paragraph shall not be combined with waters identified in 40 CFR 230.3(o)(1)(vi) when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under 40 CFR 230.3(o)(1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.
- (A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.
- (B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.
- (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.
- (D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.
- (E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast.
- (viii) All waters located within the 100-year floodplain of a water identified in 40 CFR 230.3(o)(1)(i) through (iii) and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in 40 CFR 230.3(o)(1)(i) through (v) where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs 40 CFR 230.3(o)(1)(i) through (iii). For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in 40 CFR 230.3(o)(1)(i) through (iii) or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in 40 CFR 230.3(o)(1)(vi) when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under 40 CFR 230.3(o)(1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.
The waters of the United States do not include numerous sources of water even where they otherwise meet the terms of 40 CFR 230.3(o)(1)(iv) through (vii). Generally not included are waters associated with waste treatment systems, prior converted cropland, ditches, numerous types of artificial features, groundwater, stormwater control features, and structures related to wastewater recycling (for a detailed description see 40 CFR 230.3(o)(2)).
14.2 - Will the Project Require a Point Source Discharge of a Pollutant?
A point source is a single identifiable source of water pollution. Under CWA § 502, the term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into waters of the United States. Generally, point source discharges are surface-based discharges; the effect of which will flow into waters of the United States. This term does not mean (A) "sewage from vessels"; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.
To discharge a pollutant into "waters of the United States" and EPA NPDES permit or state equivalent is required. What constitutes "waters of the United States" has been continually litigated and may at times be uncertain. Developers should contact the U.S. Army Corps of Engineers for guidance in cases where it is unclear.
On certain federal and state lands the EPA controls NPDES permitting. For other lands, in most states, the EPA has delegated NPDES permitting to a state environmental agency.
See EPA's NPDES Program webpage.
14.3 - NPDES Permit
In most states, under most circumstances, the EPA has delegated NPDES permitting to a state environmental organization.
- 14-AK-b: Alaska Pollutant Discharge Elimination System Permit
- 14-AZ-b: AZPDES Permit
- 14-CA-b: NPDES Permit
- 14-CO-b: Colorado Discharge Permit System (CDPS)
- 14-HI-b: NPDES Permit
- 14-ID-b: NPDES Permitting Process
- 14-MT-b: MPDES Permitting Process
- 14-NM-b: NPDES Permit
- 14-NV-b: NPDES Permit Program
- 14-OR-b: NPDES Permitting Process
- 14-TX-b: Texas NPDES Permitting Process
- 14-UT-b: Utah Pollutant Discharge Elimination System
- 14-WA-b: NPDES Permit
If a state environmental agency in not authorized to issue a NPDES permit than the EPA will handle the NPDES process.
14.4 - Nonpoint Source Pollution
The 1987 amendments to the Clean Water Act established the Section 319 Nonpoint Source Management Program. Section 319 addresses the need for greater federal leadership to help focus state and local nonpoint source efforts. Under Section 319, states, territories and tribes receive grant money that supports a wide variety of activities including technical assistance, financial assistance, education, training, technology transfer, demonstration projects and monitoring to assess the success of specific nonpoint source implementation projects.
- 14-AK-a: Nonpoint Source Pollution
- 14-AZ-a: Nonpoint Source Pollution
- 14-CA-a: Nonpoint Source Pollution
- 14-CO-a: Nonpoint Source Pollution
- 14-HI-a: Nonpoint Source Pollution
- 14-ID-a: Nonpoint Source Pollution
- 14-MT-a: Nonpoint Source Pollution
- 14-NV-a: Nonpoint Source Pollution
- 14-OR-a: Nonpoint Source Pollution
- 14-TX-a: Nonpoint Source Pollution
- 14-UT-a: Nonpoint Source Pollution
14.5 - Will the Project Require the Dredge or Fill of Waters of the United States?
CWA Section 404 establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands. "Waters of the United States" is defined above in 14.1. Responsibility for administering and enforcing Section 404 is shared by the US Army Corps of Engineers and EPA. The Army Corps of Engineers administers the day-to-day program, including individual permit decisions and jurisdictional determinations; develops policy and guidance; and enforces Section 404 provisions. EPA develops and interprets environmental criteria used in evaluating permit applications, identifies activities that are exempt from permitting, reviews/comments on individual permit applications, enforces Section 404 provisions, and has authority to veto Army Corps of Engineers permit decisions.
The basic premise of the program is that no discharge of dredged or fill material may be permitted if:
(1) a practicable alternative exists that is less damaging to the aquatic environment or
(2) the nation’s waters would be significantly degraded.
See EPA's Dredge and Fill webpage.
14.6 - Dredge and Fill of Wetlands
"404" dredge and fill permits are administered by the US Army Corps of Engineers.
14.7 - Will the Project Impact a Source Water Protection Zone?
The Safe Drinking Water Act (SDWA) Amendments of 1996 required states to develop and implement source water assessment programs (SWAPs) to analyze existing and potential threats to the quality of the public drinking water throughout the state. Using these programs, most states have completed source water assessments for every public water system. The EPA works with state agencies, and local municipalities to create EPA-approved state Source Water Assessment Programs.
See EPA's Source Water Protection webpage.
The developer should contact the local environmental agency or water agency to determine if the project is in a source water protection zone.
14.8 - Local Source Water Protection Plan Evaluation Process
If the project will impact a source water protection zone then the developer should contact the local environmental or water agency to see if any permits are required or if there are special procedures to follow.
14.9 - Will Project Discharge to the Groundwater?
Water pollution can affect groundwater in two ways. Groundwater can be directly polluted though injection wells, or indirectly polluted by surface discharges that seep into the water table.
The Safe Drinking Water Act of 1974 established the basic framework for protecting the drinking water of the United States. The act instructs the United States Environmental Protection Agency (EPA) to establish a national program to prevent underground injection activities that endanger drinking water sources. The EPA has promulgated a series of Underground Injection Control (UIC) regulations to protect underground sources of drinking water. Injection wells are not allowed to discharge fluids or waste fluids containing any contaminant that may cause a violation of any National Primary Drinking Water Quality Standard or that may otherwise adversely affect human health.
In most cases EPA UIC controls have been delegated to a state environmental agency.
See EPA Ground Water Discharge webpage.
Additionally, state programs may regulate the discharge of wastewater and wastes to the surface, which have the potential to contaminate ground water through seepage. States will issue ground water discharge permits based on compliance with required state effluent limitations and technology control devices. States may require ground water discharge permits for a number of activities including, but not limited to:
- Discharges of waste to land;
- Use of waste storage pits or landfills;
- Use of oil and gas or geothermal drilling pits;
- Waste water pits, ponds, and lagoons; and
- Process water ponds or impounds.
14.10 - Is the Discharge Regulated Under the State Groundwater Protection Program or the Underground Injection Program?
Most applicable to geothermal development, If the potential ground water contamination is by injection well then the developer must obtain a UIC permit from the proper state agency.
If the potential ground water contamination is by surface discharge and seepage the developer must obtain a groundwater discharge permit from the proper state agency.
14.11 - State Underground Injection Control (UIC) Permit
EPA regulations and state law dictate UIC permits. In most states UIC permits are administered by the state's environmental agency.
- 14-AK-c: Underground Injection Control Permit
- 14-CA-c: Underground Injection Control Permit
- 14-CO-c: Underground Injection Control Permit
- 14-HI-c: Underground Injection Control Permit
- 14-ID-c: Underground Injection Control Permit
- 14-MT-c: Underground Injection Control Permit
- 14-NM-c: Underground Injection Control Permit
- 14-NV-c: Underground Injection Control Permit
- 14-OR-c: Underground Injection Control Permit
- 14-TX-c: Underground Injection Control Permit
- 14-UT-c: Underground Injection Control Permit
- 14-WA-c: Underground Injection Control Permit
14.12 - State Groundwater Discharge Permit
In most states Groundwater Discharge Permits permits are administered by the state's environmental agency.
- 14-AZ-e: Aquifer Protection Permit
- 14-CA-e: Waste Discharge Requirements
- 14-CO-e: Ground Water Discharge Permit
- 14-MT-e: Groundwater Pollution Control System
- 14-NM-e: Ground Water Discharge Permit
- 14-NV-e: Groundwater Discharge Permit
- 14-OR-e: Water Pollution Control Facility Permit
- 14-TX-e: Ground Water Discharge Permit
- 14-UT-e: Ground Water Quality Protection Permit
- 14-WA-e: State Wastewater Discharge Permit
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