Waters of the U.S.
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers are proposing to significantly expand the scope of Clean Water Act jurisdiction by re-defining the regulatory term “waters of the United States.” The Clean Water Act (CWA) prohibits discharges into “navigable waters,” which the Act defines as the “waters of the United States,” unless the discharge is in compliance with one of the enumerated permitting provisions in the Act.
Historically, the agencies and courts have required that jurisdictional water under the CWA have a commercial or navigational component in order to be a “navigable water.” The proposed rule establishes new criteria for jurisdiction under the CWA – that a water feature only be connected to a navigable water, even if such a connection only occurs after a rain or through a subsurface connection. Under the proposed rule, all tributaries, adjacent waters, certain wetlands and ditches, and other waters that are deemed to have a “significant nexus” (e.g., anything other than a “speculative” connection) to jurisdictional waters would be automatically jurisdictional by rule. Unless explicitly excluded by the rule, a water feature meeting the definition would, without further analysis, be within the jurisdiction of the Clean Water Act and permits for discharging pollutants or adding fill material to such waters would be required.
Where we stand
- NRECA believes the proposed rule poses a significant expansion in federal Clean Water Act jurisdiction. Increasing the number of regulated waters – including those that are dry except after a rain or snowmelt – will require more permits (and more delay, uncertainty and cost) for (1) constructing and maintaining power lines; (2) operating and maintaining existing and new generation, including generation from both traditional fuels like natural gas and renewable sources; and (3) decommissioning existing generating facilities.
Steam Electric Effluent Limitation Guidelines (ELG)
The Environmental Protection Agency (EPA) is finalizing guidelines to limit pollutants in waste streams from power plants. The final rule, last revised in 1982, is due by May 22, 2014. The proposal primarily affects large power plants with coal-burning units, specifically those with wet ash handling and wet flue gas desulfurization (FGD) systems.
NRECA has identified 34 coal units wholly or partially owned by 10 co-ops potentially affected by one or more of EPA’s preferred regulatory options. NRECA’s preliminary calculations suggest the costs of this rule could significantly exceed any environmental benefits, especially for small co-ops.
Where We Stand
- NRECA believes we need the following: (1) guidelines based on cost-effective technologies; (2) economic analysis that appropriately considers potential effects on small electric cooperatives and the rural members they serve; (3) harmonization between effluent limitation guidelines and the coal ash rules, since both would regulate ash ponds.
Regulation of Cooling Water Intake Structures
EPA is proposing to regulate cooling water intake structures (CWIS) at existing power plants to protect fish and other aquatic organisms from risk of injury or death in power plant’s cooling system. The new rules, which would apply to power plants that withdraw at least 2 million gallons of cooling water per day, are intended to protect fish – not to human health or improve water quality. By EPA’s own analysis, costs to comply with the proposed rule would exceed the environmental benefits by 20-to-1. Moreover, a review of peer reviewed literature found no evidence that regulating intake structures would, in fact, improve fish populations.
Section 316(b) of the Clean Water Act requires that cooling water intake structures use the best technology available for minimizing adverse environmental impacts. For more than 30 years, utilities have worked with states to develop site-specific solutions. The initial draft from EPA calls for (1) utilities withdrawing 25% of their cooling water from an adjacent waterbody to install new technologies or reduce their intake velocity and (2) closed cycle cooling systems for new units at existing facilities.
Where We Stand
- NRECA supports regulation by state agencies based on site-specific analysis including cost-benefit analysis (benefits exceed costs) and technology choice. NRECA believes that facilities with closed-cycle cooling systems, including those that include cooling ponds or basins, should be considered fully compliant with the rule.