Difference between revisions of "RAPID/Roadmap/14 (1)"

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|Flowchart=File:14 - Water Resource Assessment Overview.pdf
 
|Flowchart=File:14 - Water Resource Assessment Overview.pdf
 
|Technology=Hydropower
 
|Technology=Hydropower
|PermitOverview=The [[Clean Water Act]] (CWA) 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, where possible, to make surface waters suitable for human sports and recreation, and able to support aquatic ecosystems.
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|PermitOverview=<p>
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The [[Clean Water Act]] (CWA) 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, where possible, to make surface waters suitable for human sports and recreation, and able to support aquatic ecosystems.
  
 
The CWA requires a Section 404 permit to discharge dredge or fill material into waters of the United States and, Section 401 compliance with state water quality standards through a Water Quality Certification process. Although the [[United States Environmental Protection Agency|Environmental Protection Agency]] (EPA) is the primary agency responsible for implementing the CWA, other federal and state agencies administer the Act as well. In particular, the [[U S Army Corps of Engineers]] administers Section 404 Dredge and Fill Permits for wetlands and states that have implemented state water quality standards have authority to enforce the standards through Section 401 Water Quality Certifications.
 
The CWA requires a Section 404 permit to discharge dredge or fill material into waters of the United States and, Section 401 compliance with state water quality standards through a Water Quality Certification process. Although the [[United States Environmental Protection Agency|Environmental Protection Agency]] (EPA) is the primary agency responsible for implementing the CWA, other federal and state agencies administer the Act as well. In particular, the [[U S Army Corps of Engineers]] administers Section 404 Dredge and Fill Permits for wetlands and states that have implemented state water quality standards have authority to enforce the standards through Section 401 Water Quality Certifications.
 +
</p>
 
|Description===14.1 to 14.2 - Will the Project Require the Discharge of Dredge or Fill into Waters of the United States?==
 
|Description===14.1 to 14.2 - Will the Project Require the Discharge of Dredge or Fill into Waters of the United States?==
  
 
[[Clean Water Act|CWA Section 404]] establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands. The CWA applies only to “water of the United States” which has a particular definition discussed below.  All Section 404 permits also require Water Quality Certification under [[Clean Water Act|Section 401 of the CWA]].
 
[[Clean Water Act|CWA Section 404]] establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands. The CWA applies only to “water of the United States” which has a particular definition discussed below.  All Section 404 permits also require Water Quality Certification under [[Clean Water Act|Section 401 of the CWA]].
  
Under [[Title 40 CFR 230 Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material|40 CFR 230.3(o)(1)]], the term "waters of the United States" is defined broadly. The term “waters of the United States” is defined to mean:
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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. In addition, Section 404 Dredge and Fill permits for activities that impact wetlands are administered by the [[US Army Corps of Engineers]].
 +
 
 +
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 [[EPA - Section 404 Dredge and Fill Permitting webpage | webpage]].
 +
 
 +
:[[File:Green_arrow.PNG|19px|bottom]] '''[[RAPID/Roadmap/14-FD-a|14-FD-a: Clean Water Act Section 404 Permit Application Process]]'''
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'''Waters of the United States'''
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"Waters of the United States" is defined broadly by regulation under the Clean Water Rule as developed by the [[EPA]] and [[U.S. Army Corps of Engineers|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 [[Clean Water Act|CWA]]. In most states the rule took effect immediately, however, a number of states have initiated litigation to challenge implementation of the new rule.
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 +
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 [[Title 40 CFR 230 Definitions - Clean Water Act|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.
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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]].
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The term “waters of the United States” is defined to mean:
  
 
:(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;
 
:(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;
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::(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.
 
::(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.  
 
:(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.  
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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 [[Title 40 CFR 230 Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material|40 CFR 230.3(o)(2)]]).
 
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 [[Title 40 CFR 230 Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material|40 CFR 230.3(o)(2)]]).
  
The effective date for the Clean Water Rule developed by the EPA and USACE is August 28, 2015. This new rule modifies the regulatory definition to more precisely define jurisdictional waters under the [[Clean Water Act]]. In most states the rule took effect immediately, however, a number of states have initiated litigation and on August 27, 2015 the District Court of North Dakota issued a preliminary injunction halting the implementation of the new rule. In light of the order, EPA and USACE will continue to implement the CWA through the prior regulatory definition under [[Title 40 CFR 230 Definitions - Clean Water Act|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.
 
 
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. In addition, Section 404 Dredge and Fill permits for activities that impact wetlands are administered by the [[US Army Corps of Engineers]].
 
 
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 [[EPA - Section 404 Dredge and Fill Permitting webpage | webpage]].
 
 
:[[File:Green_arrow.PNG|19px|bottom]] '''[[RAPID/Roadmap/14-FD-a|14-FD-a: Clean Water Act Section 404 Permit Application Process]]'''
 
 
==14.3 to 14.4 - Does the Project Require a Water Quality Certification?==
 
==14.3 to 14.4 - Does the Project Require a Water Quality Certification?==
  

Revision as of 11:53, 14 October 2015

RAPIDRegulatory and Permitting Information Desktop Toolkit
My Projects

Hydropower Water Resource Assessment (14)

The Clean Water Act (CWA) 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, where possible, to make surface waters suitable for human sports and recreation, and able to support aquatic ecosystems.

The CWA requires a Section 404 permit to discharge dredge or fill material into waters of the United States and, Section 401 compliance with state water quality standards through a Water Quality Certification process. Although the Environmental Protection Agency (EPA) is the primary agency responsible for implementing the CWA, other federal and state agencies administer the Act as well. In particular, the U S Army Corps of Engineers administers Section 404 Dredge and Fill Permits for wetlands and states that have implemented state water quality standards have authority to enforce the standards through Section 401 Water Quality Certifications.



Water Resource Assessment Process

14.1 to 14.2 - Will the Project Require the Discharge of Dredge or Fill into 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. The CWA applies only to “water of the United States” which has a particular definition discussed below. All Section 404 permits also require Water Quality Certification under Section 401 of the CWA.

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. In addition, Section 404 Dredge and Fill permits for activities that impact wetlands are administered by the US Army Corps of Engineers.

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.

Green arrow.PNG 14-FD-a: Clean Water Act Section 404 Permit Application Process

Waters of the United States

"Waters of the United States" 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.

The term “waters of the United States” is defined to mean:

(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)).

14.3 to 14.4 - Does the Project Require a Water Quality Certification?

Both a CWA Section 404 Dredge and Fill Discharge Permit and FERC license require a CWA 401 Water Quality Certification. FPA § 14(a), 16 U.S.C. § 807(a). Of note, for projects that require CWA Section 404 Dredge and Fill Discharge Permits and a FERC license, the developer likely must complete the CWA Section 401 certification process two times.

If the project is constructed on BOR land requiring an LOPP, and is not licensed by FERC, the developer will not need to obtain additional Water Quality Certification under Section 401.

Green arrow.PNG 14-CA-d: 401 Water Quality Certification
Green arrow.PNG 14-VT-d: 401 Water Quality Certification

14.5 to 14.6 - Will the Project Discharge Stormwater from an Impervious Surface?

A state stormwater discharge permit (operational stormwater permit) may be required for some hydroelectric facility projects.

Vermont

The developer may need an Individual Stormwater Discharge Permit or General Stormwater Discharge Permit for a project (new development, expansion, redevelopment, and/or existing impervious surface) that discharges regulated stormwater runoff. Discharge Permit, 10 V.S.A. §1263 (a). The following discharges require a permit:

  • A discharge from the development of new impervious surfaces equal to or greater than one (1) acre;
  • A discharge from the expansion of an existing impervious surface, such that the total resulting impervious surface of a project is equal to or greater than one (1) acre, except that a permit is not required for an expansion that meets the exemption in Stormwater Management Rule for Stormwater-Impaired Waters, CVR 12-030-19 § 22-304(a)(4);
  • A discharge from the redevelopment of an existing impervious surface if the redeveloped portion of the existing impervious surface is equal to or greater than one (1) acre;
  • A discharge from a combination of expansion and redevelopment of an existing impervious surface, such that the total resulting impervious surface is equal to or greater than one (1) acre, except that a permit is not required if the exemptions in Stormwater Management Rule for Stormwater-Impaired Waters, CVR 12-030-19 § 22-304(a)(4)-(5) are met;
  • A discharge from any size of impervious surface if the Secretary of Agency of Natural Resources (ANR) determines that treatment is necessary to reduce the adverse impacts of the discharge due to the size of the impervious surface, drainage pattern, hydraulic connectivity, installation or modification of drainage or conveyance structures, location of the discharge, existing stormwater treatment, or other factors identified by the Secretary of ANR; and
  • A discharge from an existing impervious surface of equal to or greater than one (1) acre if the Secretary of ANR has previously issued an Individual Stormwater Discharge Permit or Individual Temporary Pollution Permit for the discharge.

Stormwater Management Rule for Stormwater-Impaired Waters, CVR 12-030-19 § 22-302(a); Stormwater Management Rule, CVR 12-030-018A §18-302(a).

For a complete list of discharges that may need a permit, see: Stormwater Management Rule for Stormwater-Impaired Waters, CVR 12-030-19 § 22-302(a); Stormwater Management Rule, CVR 12-030-018A §18-302(a).







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