National Pollutant Discharge Elimination System (NPDES) Water
Transfers Proposed Rule
[Federal Register: June 7, 2006 (Volume 71, Number 109)]
[Proposed Rules]
[Page 32887-32895]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn06-34]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 122
[EPA-HQ-OW-2006-0141; FRL-8180-7]
RIN 2040-AE86
National Pollutant Discharge Elimination System (NPDES) Water
Transfers Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing an amendment to its Clean Water Act (CWA)
regulations to expressly exclude water transfers from regulation under
the National Pollutant Discharge Elimination System (NPDES) permitting
program. The proposed rule would define water transfers as an activity
that conveys waters of the United States to another water of the United
States without subjecting the water to intervening industrial,
municipal, or commercial use. This proposed rule focuses exclusively on
water transfers and is not relevant to whether any other activity is
subject to the CWA permitting requirement.
DATES: Comments must be received on or before July 24, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2006-0141 by one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov 
.
Follow the on-line instructions for submitting comments. EPA prefers to
receive comments submitted electronically.
(2) E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-
2006-0141.
(3) Mail: Send the original and three copies of your comments to:
Water Docket, Environmental Protection Agency, Mailcode 4203M, 1200
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No.
EPA-HQ-OW-2006-0141.
(4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC,
Attention Docket ID No. EPA-HQ-OW-2006-0141. Such deliveries are only
accepted during the Docket's normal hours of operation and special
arrangements should be made.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2006-
0141. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov , including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The federal regulations.gov Web sites are ``anonymous access''
systems, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
regulations.gov, your e-mail address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the Internet. If you submit an electronic comment,
EPA recommends that you include your name and other contact information
in the body of your comment and with any disk or CD-ROM you submit. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the Regulations
index at http://www.regulations.gov/ . Although listed in
the index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically at
http://www.regulations.gov or in hard copy at the Water Docket
in the EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: For additional information contact
Jeremy Arling, Water Permits Division, Office of Wastewater Management
(4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: 202-564-2218, e-mail address:
arling.jeremy@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for EPA?
II. Background
III. Rationale
A. Statutory Language and Structure
B. Legislative History
C. Conclusion
IV. Scope of This Proposed Rule
V. Designation Authority
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Does This Action Apply to Me?
This action applies to those involved in the transfer of waters of
the United States. The following table provides a
[[Page 32888]]
list of standard industrial codes for operations covered under this
revised rule.
Table 1.--Entities Potentially Regulated by This Rule
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Examples of
Category NAICS potentially affected
entities
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Resource management parties 924110 Government
(includes state departments Administration establishments
of fish and wildlife, state of Air and Water primarily engaged in
departments of pesticide Resource and the administration,
regulation, state Solid Waste regulation, and
environmental agencies, and Management enforcement of water
universities). Programs. resource programs;
the administration
and regulation of
water pollution
control and
prevention programs;
the administration
and regulation of
flood control
programs; the
administration and
regulation of
drainage development
and water resource
consumption
programs; and
coordination of
these activities at
intergovernmental
levels.
924120 Government
Administration establishments
of Conservation primarily engaged in
Programs. the administration,
regulation,
supervision and
control of land use,
including
recreational areas;
conservation and
preservation of
natural resources;
erosion control;
geological survey
program
administration;
weather forecasting
program
administration; and
the administration
and protection of
publicly and
privately owned
forest lands.
Government
establishments
responsible for
planning,
management,
regulation and
conservation of
game, fish, and
wildlife
populations,
including wildlife
management areas and
field stations; and
other administrative
matters relating to
the protection of
fish, game, and
wildlife are
included in this
industry.
237110 Water and This category
Sewer Line and includes entities
Related primarily engaged in
Structures the construction of
Construction. water and sewer
lines, mains,
pumping stations,
treatment plants and
storage tanks.
237990 Other This category
Heavy and Civil includes dam
Engineering Construction and
Construction. management, flood
control structure
construction,
drainage canal and
ditch construction,
flood control
project
construction, and
spillway,
floodwater,
construction
Public Water Supply........... 221310 Water This category
Supply. includes entities
engaged in operating
water treatment
plants and/or
operating water
supply systems. The
water supply system
may include pumping
stations, aqueducts,
and/or distribution
mains. The water may
be used for
drinking,
irrigation, or other
uses.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be regulated. EPA welcomes comment
identifying those other entities. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting Confidential Business Information. Do not submit this
information to EPA through regulations.gov or e-mail. Clearly mark the
part or all of the information that you claim to be CBI. For CBI
information in a disk or CD ROM that you mail to EPA, mark the outside
of the disk or CD ROM as CBI and then identify electronically within
the disk or CD ROM the specific information that is claimed as CBI. In
addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
i. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vii. Explain your views as clearly as possible.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background
Water transfers occur routinely and in many different contexts
across the United States. Typically, water transfers route water
through tunnels, channels, and/or natural stream water features, and
either pump or passively direct it for uses such as providing public
water supply, irrigation, power generation, flood control, and
environmental restoration. Water transfers can be relatively simple,
moving a small quantity of water a short distance on the same stream,
or very complex, transporting substantial quantities of water over long
distances, across both state and basin boundaries. There are thousands
of water transfers currently in place in the United States, including
16 major diversion projects in the western States alone. Examples
include the Colorado-Big Thompson Project in Colorado and the Central
Valley Project in California.
Water transfers are administered by various federal, State, and
local agencies and other entities. The Bureau of
[[Page 32889]]
Reclamation administers significant transfers in western States to
provide approximately 140,000 farmers with irrigation water. With the
use of water transfers, the Army Corps of Engineers keeps thousands of
acres of agricultural and urban land in southern Florida from flooding
in former areas of Everglades wetlands. Many large cities in the west
and the east would not have adequate sources of water for their
citizens were it not for the continuous redirection of water from
outside basins. For example, both the cities of New York and Los
Angeles are dependent on water transfers from distant watersheds to
meet their municipal demand. In short, numerous States, localities, and
residents are dependent upon water transfers, and these transfers are
an integral component of U.S. infrastructure.
Although there have been a few isolated instances where entities
responsible for water transfers have been issued NPDES permits, EPA is
aware of only one State that has a practice of issuing NPDES permits
for water transfers.\1\ Water transfers are not generally subject to
section 402 of the Clean Water Act. However, the Act reserves the
ability of States to regulate water transfers under State law and this
proposed rulemaking does not affect this state prerogative. See CWA
section 510.
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\1\ For instance, courts required NPDES permits for water
transfers associated with the expansion of a ski resort and the
supply of drinking water. See Dubois v. United States Dept. of Ag.,
103 F.3d 1273 (1st Cir 1996) and Catskill Mountains Chapter of Trout
Unlimited, Inc. v. City of New York, 273 F.3d 481 (2nd Cir 2001).
Pennsylvania began issuing permits for water transfers in 1986, in
response to a State court decision mandating the issuance of such
permits. DELAWARE Unlimited v. DER, 508 A.2d 348 (Pa. Cmwlth, 1986).
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The question of whether or not an NPDES permit is required for
water transfers has arisen because activities that result in the
movement of waters of the U.S., such as trans-basin transfers of water
to serve municipal, agricultural, and commercial needs, can also move
pollutants from one waterbody (donor water) to another (receiving
water). The Supreme Court recently discussed this issue in South Fla.
Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004),
leaving the matter unresolved. In this case, the Supreme Court vacated
a decision by the 11th Circuit, which had held that a Clean Water Act
permit was required for transferring water from one navigable water
into another, a Water Conservation Area in the Florida Everglades. The
Court remanded the case for further fact-finding as to whether the two
waters in question were ``meaningfully distinct.'' If they were not, no
permit would be required. The Court declined to address legal arguments
made by the parties because the arguments had not been raised in the
lower court proceedings. The Court noted that EPA had not spoken to
these legal issues in an administrative document. 541 U.S. at 107.
On August 5, 2005, EPA issued a legal memorandum entitled ``Agency
Interpretation on Applicability of Section 402 of the Clean Water Act
to Water Transfers.'' (interpretive memorandum) The precise legal
question addressed in the interpretive memorandum was whether the
movement of pollutants from one water of the U.S. to another by a water
transfer is the ``addition'' of a pollutant potentially subjecting the
activity to the permitting requirement under section 402 of the Act.
Based on the statute as a whole and consistent with the Agency's
longstanding practice, the interpretive memorandum concluded that
Congress intended for water transfers to be subject to oversight by
water resource management agencies and State non-NPDES authorities,
rather than the permitting program under section 402 of the CWA.
Today, EPA is proposing an amendment to its Clean Water Act (CWA)
regulations to expressly exclude water transfers from regulation under
section 402 of the CWA. The proposed rule would define water transfers
as an activity that conveys waters of the United States to another
water of the United States without subjecting the water to intervening
industrial, municipal, or commercial use. This proposed rule focuses
exclusively on water transfers and is not relevant to whether any other
activity is subject to the CWA permitting requirement.
This proposed rule is organized as follows. Section III discusses
the rationale for this exclusion, based on the language, structure, and
legislative history of the Clean Water Act; section IV describes the
scope of this proposed rule; and section V describes ``designation
authority'' as an additional element that the Agency chose not to
propose but for which the Agency is interested in receiving public comment.
III. Rationale
As stated in EPA's August 5th interpretive memorandum (available at
Docket No. EPA-HQ-OW-2006-0141), based on the CWA as a whole, the
Agency concludes that Congress intended to leave the oversight of water
transfers to authorities other than the NPDES program. This proposed
rule is based on the legal analysis contained in the interpretive
memorandum and explained below.
Statutory construction principles instruct that the Clean Water Act
should be interpreted by analyzing the statute as a whole. United
States v. Boisdore's Heirs, 49 U.S. 113, 122 (1850). The Supreme Court
has long explained ``in expounding a statute, we must not be guided by
a single sentence or member of a sentence, but look to the provisions
of the whole law, and its object and policy.'' Id. See also, Gustafond
v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995), Smith v. United States,
508 U.S. 223, 233 (1993), United States Nat'l Bank of Or. v.
Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993). In
general, the ``whole statute'' interpretation analysis means that ``a
statute is passed as a whole and not in parts or sections and is
animated by one general purpose and intent. Consequently, each part or
section should be construed in connection with every other part or
section so as to produce a harmonious whole.'' Norman J. Singer,
Statutes and Statutory Construction vol. 2A Sec. 46:05, 154 (6th ed.,
West Group 2000). As the Second Circuit has explained with regard to
the CWA:
Although the canons of statutory interpretation provide a court
with numerous avenues for supplementing and narrowing the possible
meaning of ambiguous text, most helpful to our interpretation of the
CWA in this case are two rules. First, when determining which
reasonable meaning should prevail, the text should be placed in the
context of the entire statutory structure [quoting United States v.
Dauray, 215 F.3d 257, 262 (2d Cir. 2000)]. Second, `absurd results
are to be avoided and internal inconsistencies in the statute must
be dealt with.' United States v. Turkette, 452 U.S. 576, 580 (1981).
Natural Res. Def. Council v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001).
See also, Singer, vol. 3B Sec. 77:4, at 256-258.
A holistic approach is needed here in particular because the heart
of this matter is the balance Congress created between federal and
State oversight of activities affecting the nation's waters. The
purpose of the CWA is to protect water quality. Congress nonetheless
recognized that programs already existed at the State and local levels
for managing water quantity, and it recognized the delicate
relationship between the CWA and State and local programs. Looking at
the statute as a whole is necessary to ensure that the analysis here is
consonant with Congress' overall policies and objectives in the
management and regulation of the nation's water resources.
[[Page 32890]]
The analysis below addresses in turn the statutory language and
structure and the legislative history.
A. Statutory Language and Structure
The Clean Water Act prohibits the discharge of a pollutant by any
person except in compliance with specified statutory sections,
including section 402. CWA section 301(a). The term ``discharge of a
pollutant'' is defined as ``any addition of any pollutant to navigable
waters from any point source.'' CWA section 502(12). Where discharges
of pollutants occur, they are generally regulated by a permit under the
NPDES program. Discharges of pollutants other than dredged or fill
material may be authorized by permits issued under section 402 by EPA
or States with approved permitting programs. Discharges of dredged or
fill material may be authorized by permits issued by the Army Corps of
Engineers and authorized States under section 404, and that provision
is not addressed or affected by this Agency interpretation.
While no one provision of the Act expressly addresses whether water
transfers are subject to the NPDES program, the specific statutory
provisions addressing the management of water resources--coupled with
the overall statutory structure--support the conclusion that Congress
did not intend for water transfers to be regulated under section 402.
The Act establishes a variety of programs and regulatory initiatives in
addition to the NPDES permitting program. It also recognizes that the
States have primary responsibilities with respect to the ``development
and use (including restoration, preservation, and enhancement) of land
and water resources.'' CWA section 101(b).
Congress also made clear that the Clean Water Act is to be
construed in a manner that does not unduly interfere with the ability
of States to allocate water within their boundaries, stating:
It is the policy of Congress that the authority of each State to
allocate quantities of water within its jurisdiction shall not be
superseded, abrogated or otherwise impaired by [the Act]. It is the
further policy of Congress that nothing in this chapter shall be
construed to supersede or abrogate rights to quantities of water
which have been established by any State. Federal agencies shall co-
operate with State and local agencies to develop comprehensive
solutions to prevent, reduce and eliminate pollution in concert with
programs for managing water sources.
CWA section 101(g). While section 101(g) does not prohibit EPA from
taking actions under the CWA that it determines are needed to protect
water quality,\2\ it nonetheless establishes Congress' general
direction against unnecessary Federal interference with State
allocations of water rights.
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\2\ PUD No. 1 of Jefferson County. v. Wash. State Dep't. of
Ecology, 511 U.S. 700, 720 (1994) (``Sections 101(g) and 510(2)
preserve the authority of each State to allocate water quantity as
between users; they do not limit the scope of water pollution
controls that may be imposed on users who have obtained, pursuant to
state law, a water allocation.'').
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Water transfers are an essential component of the nation's
infrastructure for delivering water that users are entitled to receive
under State law. Because subjecting water transfers to a federal
permitting scheme could unnecessarily interfere with State decisions on
allocations of water rights, this section provides additional support
for the Agency's interpretation that, absent a clear Congressional
intent to the contrary, it is reasonable to read the statute as not
requiring NPDES permits for water transfers. See United States v. Bass,
404 U.S. 336, 349 (1971) (``unless Congress conveys its purpose
clearly, it will not be deemed to have significantly changed the
federal-state balance.'') A second statutory provision, section 510(2),
similarly provides:
Except as expressly provided in this Act, nothing in this Act
shall * * * be construed as impairing or in any manner affecting any
right or jurisdiction of the States with respect to the waters
(including boundary waters) of such States.
Like section 101(g), this provision supports the notion that Congress
did not intend administration of the CWA to unduly interfere with water
resource allocation.
Finally, one section of the Act--304(f)--expressly addresses water
management activities. Mere mention of an activity in section 304(f)
does not mean it is exclusively nonpoint source in nature. See
Miccosukee at 106 (noting that section 304(f)(2)(F) does not explicitly
exempt nonpoint sources if they also fall within the definition of
point source). Nonetheless, section 304(f) is focused primarily on
addressing pollution sources outside the scope of the NPDES program.
See H.R. Rep. No. 92-911, at 109 (1972), reprinted in Legislative
History of the Water Pollution Control Act Amendments of 1972, Vol. 1
at 796 (Comm. Print 1973) (``[t]his section * * * on * * * nonpoint
sources is among the most important in the 1972 Amendments'') (emphasis
added)). This section directed EPA to issue guidelines for identifying
and evaluating the nature and extent of nonpoint sources of
pollutants,\3\ as well as processes, procedures and methods to control
pollution from, among other things, ``changes in the movement, flow or
circulation of any navigable waters or ground waters, including changes
caused by the construction of dams, levees, channels, causeways, or
flow diversion facilities.'' CWA 304(f)(2)(F) (emphasis added).
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\3\ Sources not regulated under sections 402 or 404 are
generically referred to as ``nonpoint sources.'' See National
Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 582 (6th Cir.
1988) (``nonpoint source'' is shorthand for and ``includes all water
quality problems not subject to section 402'') (quoting National
Wildlife Fed'n v. Gorsuch, 693 F.2d 156,166) (D.C. Cir. 1982)
(internal quotation marks omitted)).
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While section 304(f) does not exclusively address nonpoint sources
of pollution, it nonetheless ``concerns nonpoint sources'' (Miccosukee,
541 U.S. at 106) and reflects an understanding by Congress that water
movement could result in pollution, and that such pollution would be
managed by States under their nonpoint source program authorities,
rather than the NPDES program. This proposed rule accords with the
direction to EPA and other federal agencies in section 101(g) to work
with State and local agencies to develop ``comprehensive solutions'' to
water pollution problems ``in concert with programs for managing water
resources.''
Thus, these sections of the Act together demonstrate that Congress
was aware that there might be pollution associated with water
management activities, but chose to defer to comprehensive solutions
developed by State and local agencies for controlling such pollution.
Because the NPDES program only focuses on water pollution from point
source discharges, it is not the kind of comprehensive program that
Congress believed was best suited to addressing pollution that may be
associated with water transfers.
In contrast with these provisions of the statute which expressly
address water management activities, the general prohibition and
definition sections of the statute do not explicitly discuss water
management. Section 301(a) of the Act proscribes ``the discharge of any
pollutant by any person'' except in compliance with specified sections
of the CWA, including section 402. ``Discharge of a pollutant'' is
defined as ``any addition of any pollutant to navigable waters from any
point source.'' CWA section 502(12). While the statute does not define
``addition,'' sections 101(g), 102(b), 304(f) and 510(2) provide a
strong indication that the term
[[Page 32891]]
``addition'' should be interpreted in accordance with those more
specific sections of the statute. In light of Congress' clearly
expressed policy not to unnecessarily interfere with water resource
allocation and its inclusion of changes in the movement, flow or
circulation of any water of the U.S. in a section of the Act addressing
sources of pollutants that would not be subject to regulation under
section 402, it is reasonable to interpret ``addition'' as not
generally including the mere transfer of waters from one water of the
U.S. to another.
The overall structure of the statute further supports this
conclusion. In several important ways, water transfers are unlike the
types of discharges that were the primary focus of Congressional
attention in 1972. Discharges of pollutants covered by section 402 are
subject to ``effluent'' limitations. Water transfers, however, are not
like effluent from an industrial, commercial or municipal operation.
Rather than discharge effluent, water transfers release one water of
the U.S. into another.
The operators of water control facilities are generally not
responsible for the presence of pollutants in the waters they
transport. Rather, those pollutants often enter ``the waters of the
United States'' through point and nonpoint sources located far from
those facilities and beyond control of the project operators. Congress
generally intended that pollutants be controlled at the source whenever
possible. See S. Rep. No. 92-414, p. 77 (1972) (justifying the broad
definition of navigable waters because it is ``essential that discharge
of pollutants be controlled at the source'').\4\ The pollutants in
transferred waters are more sensibly addressed through water resource
planning and land use regulations, which attack the problem at its
source. See, e.g., CWA section 102(b) (reservoir planning); CWA section
208(b)(2)(F) (land use planning to reduce agricultural nonpoint sources
of pollution); CWA section 319 (nonpoint source management programs);
and CWA section 401 (state certification of federally licensed
projects). Congress acknowledged this when it directed Federal agencies
to co-operate with State and local agencies to develop comprehensive
solutions to prevent, reduce and eliminate pollution in concert with
programs for managing water sources.
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\4\ Recognition of a general intent to control pollutants at the
source does not mean that dischargers are responsible only for
pollutants that they generate; rather, point sources need only
convey pollutants into navigable waters to be subject to the Act. See
Miccosukee at 105. Municipal separate storm sewer systems, for example,
are clearly subject to regulation under the Act. CWA section 402(p).
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The Agency, therefore, concludes that, taken as a whole, the
statutory language and structure of the Clean Water Act indicate that
Congress did not generally intend to subject water transfers to the
NPDES program. Rather, Congress intended to leave oversight of water
transfers to water resource management agencies and the States in
cooperation with Federal authorities.
B. Legislative History
The legislative history of the Clean Water Act also supports this
conclusion. First, the legislative history of section 101(g) reveals
that ``[i]t is the purpose of this [provision] to insure that State
[water] allocation systems are not subverted.'' 3 Congressional
Research Serv., U.S. Library of Congress, Serial No. 95-14, A
Legislative History of the Clean Water Act of 1977, at 532 (1978); see
PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S.
700, 721 (1994).
Notably, the legislative history of the Act discusses water flow
management activities only in the context of the nonpoint source
program. In discussing section 304(f), the House Committee Report
specifically mentioned water flow management as an area where EPA would
provide technical guidance to States for their nonpoint source
programs, rather than an area to be regulated under section 402.
This section and the information on such nonpoint sources is
among the most important in the 1972 Amendments. * * * The
Committee, therefore, expects the Administrator to be most diligent
in gathering and distribution of the guidelines for the
identification of nonpoint sources and the information on processes,
procedures, and methods for control of pollution from such nonpoint
sources as * * * natural and manmade changes in the normal flow of
surface and ground waters.
H.R. Rep. No. 92-911, at 109 (1972) (emphasis added).
In the legislative history of section 208 of the Act, the House
Committee report noted that in some States, water resource management
agencies allocating stream flows are required to consider water quality
impacts. The Report stated:
[I]n some States water resource development agencies are
responsible for allocation of stream flow and are required to give
full consideration to the effects on water quality. To avoid
duplication, the Committee believes that a State which has an
approved program for the handling of permits under section 402, and
which has a program for water resource allocation should continue to
exercise the primary responsibility in both of these areas and thus
provide a balanced management control system.
H.R. Rep. No. 92-911, at 96 (1972).
Thus, Congress recognized that the new section 402 permitting
program was not the only viable approach for addressing water quality
issues associated with State water resource management. The legislative
history makes clear that Congress did not intend a wholesale transfer
of responsibility for water quality away from water resource agencies
to the NPDES authority. Rather, Congress encouraged States to obtain
approval of authority to administer the NPDES program under section
402(b) so that the NPDES program could work in concert with water
resource agencies' oversight of water management activities to ensure a
``balanced management control system.'' Id.
C. Conclusion
In sum, the language, structure, and legislative history of the
statute all support the conclusion that Congress did not intend to
subject water transfers to the NPDES program. Water transfers are an
integral part of water resource management; they embody how States and
resource agencies manage the nation's water resources and balance
competing needs for water. Water transfers also physically implement
State regimes for allocating water rights, many of which existed long
before enactment of the Clean Water Act. Congress was aware of those
regimes, and did not want to impair the ability of these agencies to
carry them out. Finding the NPDES program generally inapplicable to
water transfers is true to this intent and the structure of the Clean
Water Act, and gives meaning to sections 101(g) and 304(f) of the Act.
IV. Scope of This Proposed Rule
This proposed rule would expressly exclude discharges from water
transfers from requiring an NPDES permit. The rule would define a water
transfer as an activity that conveys waters of the United States to
another water of the United States without subjecting the water to
intervening industrial, municipal, or commercial use. Waters of the
U.S. are defined for purposes of the NPDES program in the Code of
Federal Regulations in Sec. 122.2.
A water transfer occurs between two ``waters of the United
States.'' Accordingly, the movement of water through a dam is not a
water transfer because the dam merely conveys water from one location
to another within the same waterbody. However, in both cases (water
transfers between distinct water
[[Page 32892]]
bodies and movement of waters within the same waterbody), an NPDES
permit is not required because no ``addition'' of a pollutant has occurred.
Water transfer facilities should be able to be operated and
maintained in a manner which ensures that they do not add pollutants to
the water being transferred. If no pollutants are added, a permit would
not be required. However, where these point sources do add pollutants
to water passing through the structure into the downstream water, NPDES
permits are required. Consumers Power, 862 F.2d at 588; Gorsuch, 693
F.2d at 165, n. 22. Nothing in this rulemaking affects EPA's
longstanding approach to regulation of such discharges under section 402.
This proposed rule would not affect EPA's longstanding position
that, if water is withdrawn from waters of the U.S. for an intervening
industrial, municipal or commercial use, the reintroduction of the
intake water and associated pollutants is an ``addition'' subject to
NPDES permitting requirements. EPA has long imposed NPDES requirements
on entities that withdraw process water or cooling water and then
return some or all of the water through a point source. See, e.g., 40
CFR 122.2 (definition of process wastewater); 40 CFR 125.80-125.89
(regulation of cooling towers); 40 CFR 122.45(g) (regulations governing
intake pollutants for technology-based permitting); 40 CFR part 132,
Appendix F, Procedure 5-D (containing regulations governing water
quality-based permitting for intake pollutants in the Great Lakes).
Moreover, a discharge from a waste treatment system, for example, to a
water of the United States, would not constitute a water transfer (and
would require an NPDES permit). See 40 CFR 122.2. These situations are
distinguished from the water transfers that are the subject of this
notice because if water is withdrawn from navigable waters for an
intervening industrial, municipal or commercial use, the reintroduction
of that intake water and associated pollutants physically introduces
pollutants from the outside world into navigable waters and, therefore,
is an ``addition'' subject to NPDES permitting requirements. The fact
that some of the pollutants in the discharge may have been present in
the source water does not remove the need for a permit, although, under
some circumstances, permittees may receive ``credit'' in their effluent
limitations for such pollutants. See, 40 CFR 122.45(g) (regulations
governing intake pollutants for technology-based permitting); 40 CFR
part 132, Appendix F, Procedure 5-D (containing regulations governing
water quality-based permitting for intake pollutants in the Great Lakes).
Similarly, an NPDES permit is normally required if a facility
withdraws water from a water of the U.S., removes preexisting
pollutants to purify the water, and then discharges the removed
pollutants (perhaps in concentrated form) back into the water of the
U.S. while retaining the purified water for use in the facility. An
example of this situation is drinking water treatment facilities, which
withdraw water from streams, rivers, and lakes. The withdrawn water
typically contains suspended solids, which must be removed to make the
water potable. The removed solids are a waste material from the
treatment process and, if discharged into waters of the U.S., are
subject to NPDES permitting requirements, even though that waste
material originated in the withdrawn water. See, e.g., In re City of
Phoenix, Arizona Squaw Peak & Deer Valley Water Treatment Plants, 9
E.A.D. 515, 2000 WL 1664964 (EPA Envtl. App. Bd. November 1, 2000)
(rejecting, on procedural grounds, challenges to NPDES permits for two
drinking water treatment plants that draw raw water from the Arizona
Canal, remove suspended solids to purify the water, and discharge the
solids back into the Canal; Final NPDES General Permits for Water
Treatment Facility Discharges in the State of Massachusetts and New
Hampshire, 65 FR 69,000 (2000) (NPDES permits for discharges of process
wastewaters from drinking water treatment plants).
Waters that are diverted and used for irrigation and then
reintroduced to the waters of the U.S. are exempt from permitting
requirements under the exemption for return flows from irrigated
agriculture from the definition of ``point source'' in section 502(14)
and this Agency interpretation does not affect that exemption.
The activities addressed by this proposed rule also stand in sharp
contrast to other activities that have long been subject to the Clean
Water Act's permitting requirements. For example, section 402 subjects
placer mining of ore deposits in streams and rivers to the NPDES
permitting program because the process results in the excavation and
point source discharge of dirt and gravel into waters of the U.S. See
Rybachek v. EPA, 904 F.2d 1276, 1285 (9th Cir. 1990). Similarly,
section 404 of the Clean Water Act subjects the deposit or redeposit of
dredged or fill material to a specialized permitting program because
that activity results in the point source discharge of those materials
into navigable waters. See CWA section 404; United States v. Deaton,
209 F.3d 331, 335-336 (4th Cir. 2000); United States v. M.C.C. of Fla.,
Inc., 772 F.2d 1501, 1503-1506 (11th Cir. 1985), vacated on other
grounds, 481 U.S. 1034 (1987), readopted in relevant part, 848 F.2d
1133 (11th Cir. 1988); Avoyelles Sportsmen's League, Inc. v. Marsh, 715
F.2d 897, 923-925 (5th Cir. 1983). The Clean Water Act also clearly
imposes permitting requirements on publicly owned treatment works, and
large and medium municipal separate storm sewer systems. See CWA
sections 402(a), 402(p)(1)-(4). Congress amended the Clean Water Act in
1987 specifically to add new section 402(p) to better regulate
stormwater discharges from point sources. Water Quality Act of 1987,
Public Law 100-4, 101 Stat. 7 (1987). Again, this interpretation does
not affect EPA's longstanding regulation of such discharges.
This proposed rule also would not change EPA's longstanding
position, upheld by the Supreme Court in Miccosukee, that the
definition of ``discharge of a pollutant'' in the CWA includes coverage
of point sources that do not themselves generate pollutants. The
Supreme Court stated, ``A point source is, by definition, a
`discernible, confined, and discrete conveyance' Section 1362(14)
(emphasis added). That definition makes plain that a point source need
not be the original source of the pollutant; it need only convey the
pollutant to `navigable waters,' which are, in turn, defined as `the
waters of the United States.' Section 1362(7).'' Miccosukee, 541 U.S.
at 105.
EPA solicits comment on the proposed definition of a water
transfer. Does the definition properly achieve the Agency's objective
of excluding water transfers from NPDES permitting (as intended by
Congress) while affirming section 402 jurisdiction over all other
currently regulated activities? Does the proposed rule clearly
distinguish between situations where the water transfer facility
``adds'' pollutants to the water being transferred and thus must obtain
a permit, and those situations where waters merely pass through the
facility without the addition of any pollutant?
V. Designation Authority
EPA considered, but ultimately did not propose, an additional
provision allowing States to designate particular water transfers as
subject to the NPDES program on a case-by-case basis. EPA did not
select this option but is seeking comment on it.
Under this approach, the permitting authority would have the
discretion to
[[Page 32893]]
issue a permit on a case-by-case basis if a transfer would cause a
significant impairment of a designated use and no State authorities are
being implemented to adequately address the problem. A significant
impairment would occur when, as a result of the water transfer, the
designated use of the receiving water could no longer be maintained.
This designation would be at the sole discretion of the State NPDES
authority, and would only apply in States authorized to implement the
section 402 program.
Again, the Agency is not proposing to establish designation
authority, but EPA is interested in the programs States have to address
water quality impacts from water transfers, how they are being
implemented, and what is the best way to fill any gaps in how States
address those impacts currently. EPA notes that, regardless of whether
it includes this designation authority in the final rule or not, States
retain the authority under State law to regulate water transfers as
they see fit, including requiring permits for such transfers. Without
designation authority, however, these permits could not be issued under
NPDES program authority.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This proposed rulemaking would expressly exclude discharges from water
transfers from requiring an NPDES permit. This rule does not seek to
require potentially affected entities to generate, maintain, retain, or
disclose information to or for a Federal agency and therefore would not
impose any information collection burden.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
adverse economic impact on a substantial number of small entities.
Because EPA is simply codifying the Agency's longtime position that
Congress did not generally intend for the NPDES program to regulate the
transfer of waters of the United States into another water of the
United States, this proposed action will not impose any requirement on
small entities. We continue to be interested in the potential impacts
of the proposed rule on small entities and welcome comments on issues
related to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments
[[Page 32894]]
to have meaningful and timely input in the development of EPA
regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that this proposed rule would not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. EPA is proposing to simply codify the
Agency's longtime position that Congress did not generally intend for
the NPDES program to regulate the transfer of a water of the United
States into another water of the United States. Thus, today's proposed
rule is not subject to the requirements of sections 202 and 205 of the
UMRA. For the same reason, EPA has determined that this rule contains
no regulatory requirements that might significantly or uniquely affect
small governments. Thus, today's proposed rule is not subject to the
requirements of section 203 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6(b) of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. Under section 6(c) of Executive
Order 13132, EPA may not issue a regulation that has federalism
implications and that preempts State law, unless the Agency consults
with State and local officials early in the process of developing the
proposed regulation.
EPA has concluded that this proposed rule does not have Federalism
implications. It will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Today's proposed rule does not change the relationship between the
government and the States or change their roles and responsibilities.
Rather, this proposed rulemaking would confirm the Agency's
longstanding practice that Congress generally intended for water
transfers to be subject to oversight by water resource management
agencies and State non-NPDES authorities, rather than the permitting
program under section 402 of the CWA. In addition, EPA does not expect
this rule to have any impact on local governments.
Further, the revised regulations would not alter the basic State-
Federal scheme established in the Clean Water Act under which EPA
authorizes States to carry out the NPDES permitting program. EPA
expects the revised regulations to have little effect on the
relationship between, or the distribution of power and responsibilities
among, the Federal and State governments. Thus, Executive Order 13132
does not apply to this rule.
Consistent with EPA policy, EPA nonetheless consulted with
representatives of State governments early in the process of developing
the proposed regulation to permit them to have meaningful and timely
input into its development. EPA asked States for data regarding the
number of water transfers within their jurisdiction and the mechanisms
under State law that could be utilized to address any possibly adverse
water quality impacts from those transfers. In considering the
designation authority provision, EPA also sought data from the States
regarding their use of similar authorities in their stormwater phase II
and Concentrated Animal Feeding Operations (CAFO) rules. In addition to
data collection, EPA sought States' opinions on water transfers
generally, and designation, specifically. States varied in their
concerns, with some opposed to NPDES permitting for water transfers and
some supportive of an ability to use it.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled, ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Today's proposed rule would clarify that Congress did not generally
intend for the NPDES program to regulate the transfer of waters of the
United States into another water of the United States. Nothing in this
rule would prevent an Indian Tribe from exercising its own organic
authority to deal with such matters. Thus, Executive Order 13175 does
not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment on this proposed rule from
tribal officials.
G. Executive Order 13045: Protection of Children From
EnvironmentalHealth and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective
[[Page 32895]]
and reasonably feasible alternatives considered by the Agency.
This regulation is not subject to Executive Order 13045 because it
is not economically significant as defined under E.O. 12866, and
because the Agency does not have reason to believe that it addresses
environmental health and safety risks that present a disproportionate
risk to children. Today's proposed rule would simply clarify Congress's
intent that water transfers generally be subject to oversight by water
resource management agencies and State non-NPDES authorities, rather
than the permitting program under section 402 of the CWA.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule would not be subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not an economically significant regulatory action under Executive
Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
List of Subjects in 40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
Dated: June 1, 2006.
Stephen L. Johnson,
Administrator.
For the reasons set forth in the preamble, 40 CFR part 122 is
proposed to be amended as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Section 122.3 is amended by adding paragraph (i) to read as follows:
Sec. 122.3 Exclusions.
* * * * *
(i) Discharges from a water transfer. Water transfer means an
activity that conveys waters of the United States to another water of
the United States without subjecting the water to intervening
industrial, municipal, or commercial use. This exclusion does not apply
to pollutants added by the water transfer activity itself to the water
being transferred.
[FR Doc. E6-8814 Filed 6-6-06; 8:45 am]
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