Clean Water Advocacy - Newsroom - NACWA in the News
Utilities Back Clean Water Permit Exemptions For Interstate and Intrastate Water Transfers
Most of the nation's wastewater and drinking water utilities support exemptions from federal clean water permits for water transfers that occur through dams on a river or through tunnels that connect different water basins across state boundaries, according to comments filed with the Environmental Protection Agency.
The National Association of Clean Water Agencies (NACWA) and the Association of Metropolitan Water Agencies (AMWA) said they support EPA's proposed rule that would exempt water transfers from the requirement for National Pollutant Discharge Elimination System permits under Section 402 of the Clean Water Act (106 DEN A-7, 06/2/06 ).
The rule, once adopted by EPA, would apply to water transfers
through tunnels, channels, or natural stream courses for public water supplies,
irrigation, power generation, flood control, and environmental restoration.
EPA issued the proposal June 1.
EPA sought comments on the overall proposed rule as well as the definition it is
proposing for transfers. It has defined transfers as the movement of water
between bodies of water without subjecting it to intervening industrial,
municipal, or commercial use.
In its proposal, the agency also sought support for granting "designation
authority" on a case-by-case basis to states where transfers create significant
deterioration of a designated use of a particular lake, stream, or river. That
would allow states to regulate transfers by issuing state NPDES permits.
NPDES Program Called 'Wrong Tool.'
Both NACWA, which represents wastewater treatment operations, and AMWA, which
represents drinking water utilities, said the federal total maximum daily load
(TMDL) program under Section 303 of the Clean Water Act and state laws are
better tools to deal with water quality impairments resulting from water
transfers, rather than the "severely backlogged" NPDES program.
"The NPDES program is the wrong tool to regulate water transfers," Diane VanDe
Hei, AMWA's executive director, wrote in comments Aug. 7. VanDe Hei said the
NPDES program was intended to regulate entities that introduce pollutants, not
entities that merely move water that already contains pollutants.
Thomas Stiles, chief of the Kansas Department of Health and Environment's
Watershed Planning Section, said imposition of the NPDES program would violate
Section 101(g) of the Clean Water Act, which stipulates that the federal law
should not supersede any state's authority to allocate water or abrogate rights
to quantities of water established by the state.
Stiles said water transfers are special circumstances involving these water
rights or water purchases, and requiring NPDES permits would add a layer of
redundancy to existing state law governing transfers.
"The lines of jurisdiction over water transfers become unduly blurred when
Section 402 is imposed on a Section 101(g) activity," Stiles wrote.
Alexandra Dunn, NACWA's general counsel, expressly tied the wastewater
community's support to a clear statement from EPA that monitoring and assessment
of water quality be an integral part of any transfer of water, be it within the
same river or watershed or across state boundaries between separate water
basins.
"And, EPA must state that if a water transfer is contributing to a violation of
water quality standards, the transfer must be controlled so that other
dischargers in the watershed are not treated inequitably," Dunn wrote in Aug. 4
comments. She added that EPA must "commit" in the final rule to a "firm
schedule" to develop and issue guidelines for processes to regulate pollution
resulting from diverting water from rivers and other structures, as required
under 33 U.S.C. ยงยง 1314(f)(F).
NACWA did not address the issue of granting some states the authority to permit
water transfers.
Exemption Should Be Absolute
However, AMWA's VanDe Hei said that granting states permitting authority for
transfers would "undercut" whatever certainty water supply systems may hope to
obtain through this proposal. Such a provision, VanDe Hei said, would allow
states to use water quality as the "distinguishing feature" between those
transfers where permitting might be required and those where it would not,
causing yet more confusion and uncertainty among water resource managers.
The exclusion must be "absolute," said Mark D. Hoffer, general counsel to New
York City's Department of Environmental Protection. In his comments, Hoffer said
there is no "statutory basis" for designation authority in the Clean Water Act.
Besides, he said, allowing some water transfers to be permitted by states
contradicts the agency's rationale to allow water transfers without NPDES
permits.
New York City relies on transfer of water among its 19 collecting reservoirs
comprising three separate water supply systems, some involving intra-basin
transfers and some among distinct bodies of water.
In June, the U.S. Court of Appeals for the Second Circuit ruled that New York
City could require an NPDES permit because the transfer of sediment-laden,
turbid water into Esopus Creek constitutes a discharge of pollutants from a
point source. Hoffer in his comments highlighted the costly and time-consuming
legal and regulatory barriers the city is facing in obtaining a permit for
transferring water into the Esopus Creek (Catskill Mountains Chapter of Trout
Unlimited Inc. v. New York City Department of Environmental Protection, 2d Cir.,
No. 03-7203, 6/13/06; 115 DEN A-2, 06/15/06) .
Unlike Hoffer and VanDe Hei, the National Rural Water Association (NRWA) does
support delegation of NPDES authority to states when water transfers take place
across state boundaries and result in "significant deterioration" of a
designated use.
"This would presumably allow the state regulatory authorities the power to
return the affected water to its designated use through the avenues available
under the NPDES provisions," wrote William E. Kramer, NRWA's senior engineer.
In instances involving intrastate water transfers, however, Kramer agreed with
the state and national groups that NPDES authority is unwarranted because "state
law would allow the state to regulate the transfer as they see fit."
EPA received more than 1,200 comments by its Aug. 7 deadline.
Environmental Groups Oppose Rule
About 44 environmental groups said EPA's proposed rule was illegal and in
violation of Section 301 of the Clean Water Act, which says discharge of
pollutants into navigable waters is illegal. The groups included American
Rivers, Clean Water Action, Natural Resources Defense Council, Missouri
Coalition for the Environment, Sierra Club, and Wyoming Outdoor Council.
Jennifer Hecker, natural resources policy specialist for the Conservancy of
Southwest Florida, accused EPA of not fulfilling the Clean Water Act mandates.
Hecker urged EPA to "desist" because it was violating the intent of the Clean
Water Act.
The fact that water transfers can move pollutants from one waterbody to another
"illustrates that to not regulate such activity could violate the very intent
for which NPDES permits were created, that intent being the ability to control
water pollution by regulating point sources that discharge into waters of the
U.S.," she wrote.
By Amena H. Saiyid