EPA reaffirms CWA 402 permit not needed for water transfers

The Environmental Protection Agency completed and released a final rulemaking that clarifies 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 rule, released June 9 ahead of publication in the Federal Register, is similar to a proposed rule released in 2006. (HNN 6/14/06) It clarifies Section 402 of the Clean Water Act by codifying long-standing interpretations the National Pollutant Discharge Elimination System permitting program does not apply to transfers of water from one body of water to another.

�EPA’s Water Transfer Rule gives communities greater certainty and makes clear they have the flexibility to protect water quality and promote the public good without going through a new federal permitting process,� EPA Assistant Administrator for Water Benjamin Grumbles said. �Clean water permits should focus on water pollution, not water movement.�

The rule defines water transfer as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. Pollutants introduced by the water transfer activity itself to the water being transferred still would require an NPDES permit. Furthermore, EPA said, states or tribes can use their authorities to address water transfers, including use of non-NPDES permits.

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 2004, the question of whether NPDES permits were necessary for water transfers went before the U.S. Supreme Court in South Florida Water Management District v. Miccosukee Tribe of Indians. The court did not rule directly on the issue, which left unresolved the uncertainty many felt about the need for an NPDES permit, EPA said.

EPA issued an interpretative statement in 2005 explaining that Congress intended water resource management agencies and other state authorities to oversee water transfers, not the NPDES permitting program. The final rulemaking codifies that position, EPA said.

Copies of the final rule are available on the Internet on the NPDES Internet site: www.epa.gov/npdes/agriculture.

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