9377 ‎(2)‎

• UCREFRP Catalog Number: 9377
• Author: Colorado Water Workshop.
• Title: 16th Annual Colorado Water Workshop.
• USFW Year: 1991.
• USFW - Doc Type: Western State College.
• Copyright Material: NO

t
w
United States" is regulated through Section 404, which is jointly
administered by EPA and the U.S. Army Corps of Engineers.=-' The
final component of pollution control envisioned by the CWA is
Section 401, which requires that a state "certify" that the
issuance of a requested permit under the CWA,will comply with
applicable state water quality standards.
Dams and diversions are not within the scope of
Section 402 of the CWA,-'' and the only permitting requirement is
for new projects which require a 404 permit.11 Instead, they
have been included, by default, within the category of nonpoint
sources. Although the Section 319 nonpoint program is only
voluntary, EPA has frequently expressed an intent to change it
4_/ The Corps has primary responsibility for permit processing.
However, EPA has the ultimate authority over decisions
regarding the scope of applicability of 404, and the Corps
must incorporate and accept EPA's 404(b)(1) guidelines in
its permitting decisions. EPA also has the authority to
"veto" a Corps decision to issue a 404 permit under 404(c).
In NWF v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), the
environmental community argued that dam-induced water
quality impacts, such as low dissolved oxygen, temperature
changes and sediment releases, constituted the discharge of
pollution from a point source and therefore required an
NPDES permit under Section 402 of the CWA. The federal
appeals court disagreed. That court essentially held that
EPA's administrative interpretation of the term "discharge
of pollutant" to exclude these and other water quality
impacts of a dam was reasonable and entitled to deference,
and that Section 402 dial not apply unless 1) a pollutant was
2) added 3) to navigable waters 4) from 5) a point source.
However, the court left open the possibility that a dam or
diversion could be regulated under Section 402 if a
discharge of pollutant was found to exist. The
environmental community then tried, in a later case, to
argue that the discharge of dead fish and fish parts from a
hydroelectric facility was within the scope of 402, but the
court again disagreed, because the fish were not "added" to
the water by the hydro facility.
6/ However, this does not mean that water quality standards are
not relevant to water projects, as the construction of a new
dam or diversion requires a 404 permit, which cannot be
issued without a 401 certification that the state water
quality standards (developed primarily for the NPDES
program) will not be violated.
I