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Hydropower Water Quality Overview (14)

Information current as of 2020
A hydropower developer should consider the proposed project’s impact on water quality. 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 the United States’ water supply, to make surface waters suitable for human consumption, sports and recreation, and aquatic ecosystems.

Hydropower development activities that can cause water quality concerns include:

  • Activities that cause soil erosion, including construction of the intake and dam, which could increase turbidity and suspended sediment transport;
  • Weathering of newly exposed soils, which could cause leaching and oxidation, thereby releasing chemicals into the water;
  • Discharges of waste or sanitary water; and
  • Untreated groundwater used to control dust could deposit dissolved salts on the surface allowing the salts to enter surface water systems.

Office of Indian Energy and Economic Development – Tribal Energy and Environmental Information Website.

Hydropower development activities could also alter the surface flow in a river. Construction and operational activities may discharge wastewater and stormwater affecting surface and groundwater flows. Office of Indian Energy and Economic Development – Tribal Energy and Environmental Information Website.

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 CWA as well. In particular, the U.S. Army Corps of Engineers administers Dredge and Fill Permits for wetlands in compliance with Section 404 of the CWA. State agencies also regulate state water quality standards pursuant to Section 401 of the CWA.



Water Quality Overview Process


14.1 to 14.2 – Will the Project Require the Discharge or Dredge or Fill into Waters of the U.S.?

CWA Section 404 establishes a program to regulate the discharge of dredge and fill material into waters of the United States, including wetlands. The CWA applies only to “waters 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.


Waters of the United States

"Waters of the United States" is defined by regulation under the Clean Water Rule as developed by the United States Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE). “Waters of the United States” is defined to include:

  • The territorial seas, and 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;
  • Tributaries;
  • Lakes and ponds, and impoundments of jurisdictional waters; and
  • Adjacent wetlands. 33 C.F.R. § 328.3(a).

Tributaries must be perennial or intermittent within a typical year, which the rule defines as a year "when precipitation and other climatic variables are within the normal periodic range for the geographic area of the applicable aquatic resource based on a rolling 30 year period." 33 C.F.R. § 328.3(c)(13).

"Waters of the United States" do not include:

  • Waters or water features that are not identified in paragraph (a)(1), (2), (3), or (4) of this section;
  • Groundwater, including groundwater drained through subsurface drainage systems;
  • Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
  • Diffuse stormwater run-off and directional sheet flow over upland;
  • Ditches that are not waters identified in paragraph (a)(1) or (2) of this section, and those portions of ditches constructed in waters identified in paragraph (a)(4) of this section that do not satisfy the conditions of paragraph (c)(1) of this section;
  • Prior converted cropland;
  • Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
  • Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (c)(6) of this section;
  • Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
  • Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
  • Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and
  • Waste treatment systems. 33 C.F.R. § 328.3(b).

Developers should be aware of ongoing litigation on this matter and continue to monitor the issue at the state and national level. For example, the state of Colorado won a preliminary injunction preventing the new WOTUS definition going into effect in the state. The EPA provides up-to-date information on the Environmental Protection Agency - Clean Water Rule Website.

Responsibility for administering and enforcing Section 404 is shared by the U.S. 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 U.S. 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.

For more information, see:

Clean Water Act Section 404 Permit:
14-FD-a

EPA’s - Section 404 Dredge and Fill Permitting Webpage

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

Any project that requires a federal license or permit, such as a Section 404 Dredge and Fill Permit, and may result in any discharge to navigable waters must obtain a Section 401 CWA Water Quality Certification. CWA Section 401(a). Section 401 of the CWA provides states with the authority to issue 401 Water Quality Certification to ensure that federal agencies do not issue permits or licenses that violate the water quality standards, or other authorities, of a state or tribe.

Both a CWA Section 404 Dredge and Fill Discharge Permit and a Federal Energy Regulatory Commission (FERC) license require a CWA 401 Water Quality Certification. 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 may need to complete the CWA Section 401 certification process two (2) times. If the project is constructed on Bureau of Reclamation land requiring a Lease of Power Privilege, and is not licensed by FERC, the developer will not need to obtain additional Water Quality Certification under Section 401 of the CWA.

Alaska

In Alaska, a hydropower developer needs a 401 Water Quality Certification or waiver from the Alaska Department of Environmental Conservation for projects that require a FERC License or a USACE approval. For more information, see:

401 Water Quality Certification:
14-AK-d

Arkansas

In Arkansas, a hydropower developer needs a 401 Water Quality Certification or waiver from the Arkansas Department of Environmental Quality for projects that require a FERC License or a USACE approval. For more information, see:

401 Water Quality Certification:
14-AK-d

California

In California, a hydropower developer needs a 401 Water Quality Certification or waiver from the California State Water Resources Control Board and/or the regional water quality control for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-CA-d

Colorado

In Colorado, a hydropower developer needs a 401 Water Quality Certification or waiver from the Colorado Department of Public Health and Environment Water Quality Control Division for projects that require a FERC License or USACE approval.

401 Water Quality Certification:
14-CO-d

Illinois

In Illinois, a hydropower developer needs a 401 Water Quality Certification or waiver from the Illinois Environmental Protection Agency and/or the regional water quality control for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-IL-d

Indiana

In Indiana, a hydropower developer needs a 401 Water Quality Certification or waiver from the Indiana Department of Environmental Management for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-IN-d

Iowa

In Iowa, a hydropower developer needs a 401 Water Quality Certification or waiver from the Iowa Department of Natural Resources for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-IA-d

Kentucky

In Kentucky, a hydropower developer needs a 401 Water Quality Certification or waiver from the Kentucky Department of Environmental Protection for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-KY-d

Louisiana

In Louisiana, a hydropower developer needs a 401 Water Quality Certification or waiver from the Louisiana Department of Environmental Quality Water Permits Division for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-LA-d

Minnesota

In Minnesota, a hydropower developer needs a 401 Water Quality Certification or waiver from the Minnesota Pollution Control Agency for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-MN-d

Mississippi

In Mississippi, a hydropower developer needs a 401 Water Quality Certification or waiver from the Mississippi Department of Environmental Quality for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-MS-d

Missouri

In Missouri, a hydropower developer needs a 401 Water Quality Certification or waiver from the Missouri Department of Natural Resources for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-MO-d

New York

In New York, a hydropower developer needs a 401 Water Quality Certification or waiver from the New York State Department of Environmental Conservation Division of Water Resources for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-NY-d

North Dakota

In North Dakota, a hydropower developer needs a 401 Water Quality Certification or waiver from the North Dakota Department of Health for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-ND-d

Ohio

In Ohio, a hydropower developer needs a 401 Water Quality Certification or waiver from the Ohio Environmental Protection Agency for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-OH-d

Pennsylvania

In Pennsylvania, a hydropower developer needs a 401 Water Quality Certification or waiver from the Pennsylvania Department of Environmental Protection for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-PA-d

Tennessee

In Tennessee, a hydropower developer needs a 401 Water Quality Certification or waiver from the Tennessee Department of Environment and Conservation for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-TN-d

Vermont

In Vermont, a hydropower developer needs a 401 Water Quality Certification or waiver from the Vermont Department of Environmental Conservation for projects that require a FERC License or USACE approval. Vermont also requires a 401 Water Quality Certification or waiver for FERC exempt projects. For more information, see:

401 Water Quality Certification:
14-VT-d

Washington

In Washington, a hydropower developer needs a 401 Water Quality Certification or waiver from the Washington State Department of Ecology for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-WA-d

West Virginia

In West Virginia, a hydropower developer needs a 401 Water Quality Certification or waiver from the West Virginia Department of Environmental Protection for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-WV-d

Wisconsin

In Wisconsin, a hydropower developer needs a 401 Water Quality Certification or waiver from the Wisconsin Department of Natural Resources for projects that require a FERC License or USACE approval. For more information, see:

401 Water Quality Certification:
14-WI-d

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

A developer may need a Stormwater Discharge Permit (Operational Stormwater Discharge Permit) for some hydropower projects.

Alaska

Alaska does not require state operational stormwater approval for hydropower projects.

Arkansas

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Arkansas.

California

California does not require state operational stormwater approval for hydropower projects.

Colorado

Colorado does not require state operational stormwater approval for hydropower projects.

Illinois

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Illinois.

Indiana

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Indiana.

Iowa

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Iowa.

Kentucky

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Kentucky.

Louisiana

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Louisiana.

Minnesota

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Minnesota.

Mississippi

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Mississippi.

Missouri

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Michigan.

New York

New York does not require state operational stormwater approval for hydropower projects.

North Dakota

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in North Dakota.

Ohio

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Ohio.

Pennsylvania

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Pennsylvania.

Tennessee

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Tennessee.

Vermont

In Vermont, a hydropower developer may need a Individual Stormwater Discharge Permit or General Stormwater Discharge Permit from the Vermont Agency of Natural Resources for a project (new development, expansion, redevelopment, and/or existing impervious surface) that discharges regulated stormwater runoff. Vt. Stat. Ann. tit. 10 § 1263 (a). For more information, see:

Operational Stormwater Permit:
14-VT-g

Washington

Washington does not require state operational stormwater approval for hydropower projects.

West Virginia

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in West Virginia.

Wisconsin

Currently, the RAPID Toolkit does not have state specific content regarding operational stormwater approvals for hydropower development in Wisconsin.

‘’’Note:’’’ A hydropower developer may also need a Construction Stormwater Permit for stormwater discharges from construction activities that result in a total land disturbance of equal to or greater than one (1) acre or that are part of a larger common plan of development that will disturb one (1) or more acres, where those discharges enter state waters or a conveyance leading to state waters. For more information, see:

Construction and Transportation Permits Overview: 6(1)

14.7 to 14.8 – Will the Project Diffuse a Nonpoint Source Pollution Into a Watershed?

The developer may need to consult with the appropriate state water management authority if the project will diffuse a nonpoint source pollution into a watershed.

Nonpoint source pollution generally results from land runoff, precipitation, atmospheric deposition, drainage, seepage, or hydrologic modification. Nonpoint source pollution, unlike pollution from an industrial and sewage plants (point source) comes from any diffuse sources. Nonpoint pollution is caused by rainfall or snowmelt moving over and through the ground. As the runoff moves, it picks up and carries natural and human-made pollutants, finally depositing them into lakes, rivers, wetlands, coastal waters, and groundwaters. Typical pollutants that cause nonpoint source pollution include:

  • Excess fertilizer and pesticides;
  • Oil, grease, and toxic chemicals from urban runoff and energy production;
  • Sediment from unprotected construction sites, crop and forestlands, and eroding stream banks;
  • Salt from irrigation practices and acid drainage from abandoned mines; and
  • Bacteria and nutrients from livestock, pet wastes, and faulty septic systems.

Environmental Protection Agency – Nonpoint Source Pollution Website.

The 1987 amendments to the CWA 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. Environmental Protection Agency – Nonpoint Source Pollution Website.

Alaska

In Alaska, a hydropower developer may need to consult with the Alaska Department of Environmental Conservation for projects that may diffuse a nonpoint source into a watershed. For more information, see:

Nonpoint Source Pollution Program Overview:
14-AK-a

Arkansas

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Arkansas.

California

California does not have a state nonpoint source pollution requirement for hydropower projects.

Colorado

In Colorado, the hydropower developer may need to consult with the Colorado Department of Public Health and Environment Water Quality Control Division if the project will diffuse a nonpoint source pollution into a watershed. Colorado 2012 Nonpoint Source Management Plan, p. 2-3, 7. For more information, see:

Nonpoint Source Pollution Program:
14-CO-a

Illinois

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Illinois.

Indiana

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Indiana.

Iowa

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Iowa.

Kentucky

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Kentucky.

Louisiana

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Louisiana.

Minnesota

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Minnesota.

Mississippi

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Mississippi.

Missouri

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Missouri.

New York

New York does not have a state nonpoint source pollution requirement for hydropower projects.

North Dakota

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in North Dakota.

Ohio

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Ohio.

Pennsylvania

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Pennsylvania.

Tennessee

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Tennessee.

Vermont

Vermont does not have a state nonpoint source pollution requirement for hydropower projects.

Washington

Washington does not have a state nonpoint source pollution requirement for hydropower projects.

West Virginia

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in West Virginia.

Wisconsin

Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for hydropower development in Wisconsin.

14.9 to 14.11 – Will the Project Alter, Change, or Deposit Materials Into a Streambed or Lakebed?

The developer may need to obtain a state approval if the project may alter, change, or deposit materials into a streambed or lakebed.

Alaska

In Alaska, authorization to alter a streambed or lakebed is addressed through the state’s 401 Water Quality Certification process regulated by the Alaska Department of Environmental Conservation. For more information, see:

401 Water Quality Certification:
14-AK-d

Arkansas

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Arkansas.

California

In California, a hydropower developer needs a Streambed/Lakebed Alteration Agreement from the California Department of Fish & Wildlife for projects that may alter, change, or deposit materials into a streambed or lakebed as described in Section 1602 of California’s Fish and Game Code, either during construction or as a permanent installation. Cal. Fish & Game Code § 1602. For more information, see:

Streambed/Lakebed Alteration Agreement:
19-CA-h

Colorado

In Colorado, authorization to alter a streambed or lakebed is addressed through the state’s 401 Water Quality Certification process regulated by the Colorado Department of Public Health and Environment Water Quality Control Division. For more information, see:

401 Water Quality Certification:
14-CO-d

Illinois

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Illinois.

Indiana

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Indiana.

Iowa

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Iowa.

Kentucky

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Kentucky.

Louisiana

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Louisiana.

Minnesota

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Minnesota.

Mississippi

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Mississippi.

Missouri

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Missouri.

New York

In New York, the hydropower developer may need a Protection of Waters Permit from the Department of Environmental Conservation if the project will modify or disturb the course, channel or bed of any stream or remove any sand, gravel or other material from the bed or banks of a stream. N.Y. Env. Cons. L. § 15-0501(1)-(2); New York – Protection of Waters Program. For more information, see:

Protection of Waters Permit:
19-NY-h

North Dakota

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in North Dakota.

Ohio

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Ohio.

Pennsylvania

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Pennsylvania.

Tennessee

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Tennessee.

Vermont


In Vermont, the hydropower developer may need a Stream Alteration permit if the project will change, alter, or modify the course, current, or cross section of a stream within or along the boundaries of Vermont. 10 V.S.A. § 1021(a); Vt. Code. R. 12-030-022 § 301(a). Also, note that if a 401 Water Quality Certification is required often times stream alteration protections are conditioned within the 401 Water Quality Certification and an additional Stream Alteration Permit would not be required. For more information, see:

Vermont Stream Alteration Permit:
19-VT-h

Washington

In Washington, hydropower developer may need a Hydraulic Project Approval from the Washington Department of Fish and Wildlife for “any construction or performance of work that uses, diverts, obstructs, or changes the natural flow or bed of any fresh water or saltwater in the state…” Wash. Rev. Code §77.55.011(11); Wash. Rev. Code §77.55.021; Wash. Admin. Code §220-660-010. For more information, see:

Hydraulic Project Approval:
19-WA-h

West Virginia

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in West Virginia.

Wisconsin

Currently, the RAPID Toolkit does not have state specific content regarding streambed or lakebed alteration approvals for hydropower development in Wisconsin.







Edit U.S. Army Corps of Engineers
Section 404 Regulatory Contacts Visit Website


Edit Bureau of Reclamation
Hydropower Program: Power Resources Office Directory Visit Website


Edit Federal Energy Regulatory Commission
Regional Office Hydropower Contacts Visit Website