Final Environmental Impact Statement Volume II Appendix K, Part 2

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EPA -8 7C C\ COMMENTS OF U.S. ENVIRONMENTAL PROTECTION AGENCY As part of EPA's review of the temperature standard compliance issue, we wish to advise FERC of an issue involving the CWA section 401 certifications for these projects. EPA regulations provide that, in order for the certification to meet the requirements of section 401(a)(1) of the Clean Water Act, 33 U.S.C. 51341(a)(1), it must contain "[a] statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards." 40 C.F.R. S 121.2(a)(3). State law makes NDEQ the agency responsible for giving 401 certifications. R.S. SUPP., 1992 S 81- 1504(4). However, section 401(a)(1) provides, inter alia: "[i]n any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the [EPA] Administrator." Discussions with NDEQ personnel have indicated that it may be constrained by state law against considering water quantity issues in making its section 401 determinations. Such a constraint could call into question the state's authority to give the required certification in the present case, where the provision of minimum instream flows is necessary to provide reasonable assurance that the state's water quality standards will not be violated. Because the potentially constraining provision was incorporated into the state's regulations prior to 1985, any resulting lack of authority would have existed when, in 1985 and 1988, the state purported to issue 401 certifications for FERC projects 1835 and 1417, respectively. EPA is continuing to pursue discussions with the state in an attempt to clarify the state's authority in this regard. State water quality standards are set out in Title 117 of the N.A.C. They consist of three components: beneficial uses designated for waters of the state; ambient water quality criteria developed to support such designated uses; and an antidegradation policy. The beneficial uses are identified in Section 001 of Chapter 4. The section begins by stating the public policy of the state to "protect and improve the quality of surface water for human consumption, wildlife, fish and other aquatic life, industry, recreation, and other productive, beneficial uses." Beneficial uses are assigned individually to the state's waters. The beneficial uses assigned to the "Middle Platte River Basin (and Subbasins)," otherwise known as the Big Bend Reach of the Platte, include "warmwater Class All use as part of the "aquatic life" use category and "agricultural" use as part of the "water supply" use category. A final sentence in section 001 states that "[t]hese uses are not intended in any way to conflict with the quantitative RESPONSES TO U.S. ENVIRONMENTAL PROTECTION AGENCY EPA -8 EPA has taken no further action, and the 401 certification remains in effect. Until such time as the matter is resolved between EPA and the state, we recommend that the Commission consider the state's water quality certification valid.