RAPID/Roadmap/14 (1)

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Regulatory and Permitting Information Desktop Toolkit

Hydropower Water Quality (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 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 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 Quality 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 dredge 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.

Under 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:

(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)).

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 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 webpage.

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

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.

Alaska


In Alaska, the Alaska Department of Environmental Conservation (ADEC) reviews and issues 401 Water Quality Certifications. ADEC reviews hydropower projects filed with the Federal Energy Regulatory Commission (FERC) in accordance with 18 AAC 15.180 and may issue a 401 WQC or waiver. For more information, see: 401 Water Quality Certification:
14-AK-d

California


In California, the California State Water Resources Control Board and the regional water quality control boards implement Section 401 of the Clean Water Act. For more information, see:

401 Water Quality Certification:
14-CA-d

Colorado


In Colorado, the Colorado Department of Public Health and Environment Water Quality Control Division regulates water quality and wetlands through the State’s 401 Water Quality Certification Program. For more information, see:

401 Water Quality Certification:
14-CO-d

New York


In New York, the New York State Department of Environmental Conservation (DEC) Division of Water Resources reviews and issues 401 Water Quality Certifications (WQC).

401 Water Quality Certification:
14-NY-d

Vermont


In Vermont, the Vermont Department of Environmental Conservation regulates water quality and issues 401 Water Quality Certifications pursuant to the Clean Water Act. For more information, see:

401 Water Quality Certification:
14-VT-d

Washington


In Washington, the Washington State Department of Ecology (WSDE) reviews and issues 401 Water Quality Certifications (WQC). The developer must submit a 401 WQC application for any hydropower project requiring a FERC license, license amendment, or re-licensing. Washington currently does not require a 401 WQC for FERC exempted projects. For more information, see:

401 Water Quality Certification:
14-WA-d


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.

Alaska


Alaska does not require a state operational stormwater permit for hydroelectric facility projects.

California


California does not require a state operational stormwater permit for hydroelectric facility projects.

Colorado


Colorado does not require a state operational stormwater permit for hydroelectric facility projects.

New York


New York does not require a state operational stormwater permit for hydroelectric facility projects.

Vermont


In Vermont, a 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). For more information, see:

Operational Stormwater Permit:
14-VT-g

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 local watershed. “Nonpoint source pollution comes from many diffuse sources. Generally, rainfall or snowmelt moving over and through the ground, which picks up pollutants and ultimately deposits them into lakes, rivers, wetlands, and underground aquifers causes nonpoint source pollution. 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.”

Alaska


Alaska’s Nonpoint Source Water Pollution Control Strategy is a statewide plan for protecting Alaska’s natural resources from polluted runoff, also known as nonpoint source pollution. The Alaska Department of Environmental Conservation is the agency charged with oversight and implementation of the statewide plan. For more information, see: Nonpoint Source Pollution Program:
14-AK-a

California


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

Colorado


In Colorado, the 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, at p. 2-3, 7. For more information, see:

Nonpoint Source Pollution Program:
14-CO-a


New York


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

Vermont


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

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 permit 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 n through the State’s 401 Water Quality Certification process. For more information, see:

401 Water Quality Certification:
14-AK-d

California


In California, the developer must obtain a streambed/lakebed alteration agreement from the California Department of Fish & Wildlife (CDFW) for any project 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. California Fish and Game Code Section 1602. For more information, see:

Streambed/Lakebed Alteration Agreement:
19-CA-h

Colorado


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

401 Water Quality Certification:
14-CO-d

New York


In New York, the developer may need to obtain a Protection of Waters Permit from the Department of Environmental Conservation (DEC) 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. “Stream” generally means any fresh surface watercourse classified by the DEC for best usage as a source of drinking water, for swimming and other contact recreation, or to support fisheries. 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

Vermont


In Vermont, the developer may need to obtain 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. Regulation of Stream Flow, 10 V.S.A. §1021(a); Stream Alteration Rule, CVR 12-030-022 § 301(a). A stream is defined as the full length and width, including the bed and banks, of any watercourse, including rivers, streams, creeks, brooks, and drainage or water conveyance through or around a private or public infrastructure.” Stream Alteration Rule, CVR 12-030-022 § 27-201(42). However, activities regulated under 10 V.S.A. § 1083, do not need a Stream Alteration Permit. 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 to obtain 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…” W.R.C. §77.55.011(11); W.R.C. §77.55.021; W.A.C. §220-660-010. For more information, see:

Hydraulic Project Approval:
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Edit U.S. Army Corps of Engineers
Section 404 Regulatory Contacts


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Edit Bureau of Reclamation
Hydropower Program: Power Resources Office Directory


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Edit Federal Energy Regulatory Commission
Regional Office Hydropower Contacts


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