Bulk Transmission Water Quality Overview (14)
A bulk transmission 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 CWA 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.
Bulk transmission development activities that can cause water quality concerns include:
- Activities that cause soil erosion, 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.
Bulk transmission construction and operational activities may also discharge wastewater and stormwater affecting surface and groundwater flows. Office of Indian Energy and Economic Development – Tribal Energy and Environmental Information Website.
The CWA addresses point source water pollution, nonpoint source water pollution, and the dredge and fill of wetlands. 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 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 – 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 Federal Water Pollution Control Act was significantly reorganized and expanded in 1972. The "Clean Water Act" became the Federal Water Pollution Control Act’s common name with the amendments in 1972. Under the CWA, the EPA has implemented pollution control programs addressing source water pollution, nonpoint water pollution, and the dredge and fill of wetlands.
Waters of the United States
In 2015, United States Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) promulgated a rule modifying the definition of “waters of the United States.” Thirty-One states and other parties sought judicial review in multiple actions in Federal district courts and circuit courts of appeal, raising concerns about the scope and legal authority of the 2015 Rule. The Sixth Circuit stayed the 2015 Rule nationwide to restore the “pre-Rule regime, pending judicial review” (see Ohio, et al. v. EPA, Order of Stay). In light of the Sixth Circuit’s order, EPA and USACE continue to implement the CWA through the prior regulatory definition under 40 CFR 230.3(s); 33 CFR 328.
Complicating the issue further, however, are challenges to the Sixth Circuit’s jurisdiction to issue the preliminary injunction. On October 11, 2017, the Supreme Court held oral argument on the question of whether the Sixth Circuit has original jurisdiction to review challenges to the 2015 Rule. The Supreme Court could issue a decision resolving the question at any time.
On February 28, 2017, the President of the United States issued Executive Order 13778– Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule. The Executive Order directed EPA and USACE to issue a proposed rule rescinding or revising the 2015 Rule. On July 27, 2017, EPA and USACE proposed a new rule to rescind the 2015 Rule and replace it with the legal principles established prior to the 2015 Rule. In additional rulemaking, EPA and USACE are proposing that the new legal principles (IE: the legal principles established prior to the 2015 rule) not be implemented until two years after the publication date of the final rule to ensure that there is sufficient time to consider all the relevant factors involved. During this time, the agencies will continue to implement the previous regulatory definition of “waters of the United States” as they are currently doing under the Sixth Circuit's 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 up-to-date information on the Environmental Protection Agency - 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 to 14.4 – Will the Project Require the Dredge or Fill of Waters of the U.S.?
The 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 “waters of the United States” which has a particular definition discussed above in 14.1. All Section 404 permits also require Water Quality Certification under Section 401 of the CWA.
The USACE and EPA share the responsibility of administering and enforcing Section 404 of the CWA. The USACE 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:
Note: If the project requires a Section 404 Dredge Permit, or any other federal license or permit, and may result in a discharge to navigable waters, the developer must also 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.
Currently, the RAPID Toolkit does not have state specific content regarding 401 Water Quality Certifications for bulk transmission development.
14.5 to 14.6 – Will the Project Discharge a Pollutant from a Point Source?
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" an EPA National Pollutant Discharge Elimination System (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 EPA 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.
In most states, under most circumstances, the EPA has delegated NPDES permitting to a state environmental entity. Most states have a State Pollutant Discharge Elimination (SPDES) Permit that is equivalent to a NPDES Permit issued by the EPA.
The developer should contact the appropriate state entity to determine if a NPDES Permit or NPDES Permit equivalent is required for the proposed project.
Currently, the RAPID Toolkit does not have state specific content regarding NPDES Permits or NPDES Permit state equivalents for bulk transmission development.
If a state environmental agency in not authorized to issue a state equivalent of an NPDES Permit than the EPA will handle the NPDES process. For more information, see:
14.7 to 14.8 – Will the Project Diffuse 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.
Currently, the RAPID Toolkit does not have state specific content regarding nonpoint source pollution for bulk transmission development.
14.9 to 14.10 – Will the Project Require Any State Water Quality Approvals?
A developer should consider any state approvals that may be required for projects that impact water quality. For instances, a developer may need to obtain a permit if the project alters, changes or deposits materials into a streambed or lakebed. A developer may also need to state approval for any project that may obstruct or encroach upon a state watershed.
Currently, the RAPID Toolkit does not have state specific content regarding state water quality approvals for bulk transmission development.
14.11 – Continue with Project
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- EPA Clean Water Rule Website
- EPA NPDES Permit Program Website
- Office of Indian Energy and Economic Development – Tribal Energy and Environmental Information Website
- Environmental Protection Agency – Nonpoint Source Pollution Website
- North Dakota, et al. v. EPA, Memorandum Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction
- Ohio, et al. v. EPA, Order of Stay