National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule, 33697-33708 [E8-13360]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 115 (Friday, June 13, 2008)]
[Rules and Regulations]
[Pages 33697-33708]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-13360]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2006-0141; FRL-8579-3]
RIN 2040-AE86


National Pollutant Discharge Elimination System (NPDES) Water 
Transfers Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing a regulation to clarify that water transfers 
are not subject to regulation under the National Pollutant Discharge 
Elimination System (NPDES) permitting program. This rule defines water 
transfers as an activity that conveys or connects waters of the United 
States without subjecting the transferred water to intervening 
industrial, municipal, or commercial use. This rule focuses exclusively 
on water transfers and does not affect any other activity that may be 
subject to NPDES permitting requirements.
    This rule is consistent with EPA's June 7, 2006, proposed rule, 
which was based on an August 5, 2005, interpretive memorandum entitled 
``Agency Interpretation on Applicability of Section 402 of the Clean 
Water Act to Water Transfers.''

DATES: This final rule is effective on August 12, 2008. For judicial 
review purposes, this action is considered issued as of 1 p.m. eastern 
daylight time (e.d.t.) on June 27, 2008, as provided in 40 CFR 23.2. 
Under section 509(b)(1) of the Clean Water Act, judicial review of the 
Administrator's action can only be had by filing a petition for review 
in the United States Court of Appeals within 120 days after the 
decision is considered issued for purposes of judicial review.

ADDRESSES: The administrative record is available for inspection and 
copying at the Water Docket, located at the EPA Docket Center (EPA/DC), 
EPA West 1301 Constitution Ave., Room 3334, NW., Washington DC 20460. 
The administrative record is also available via EPA Dockets (Edocket) 
at https://www.regulations.gov under docket number EPA-HQ-OW-2006-0141. 
The rule and key supporting documents are also electronically available 
on the Internet at https://www.epa.gov/npdes/agriculture.

FOR FURTHER INFORMATION CONTACT: For additional information contact 
Virginia Garelick, Water Permits Division, Office of Wastewater 
Management (4203M), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460; telephone number: 202-564-2316; fax: 
202-564-6384; e-mail address: garelick.virginia@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information
    A. Does This Action Apply to Me?
    B. How Can I Get Copies of This Document and Other Related 
Information?
    C. Under What Legal Authority Is This Final Rule Issued?
    D. What is the Comment Response Document?
II. Background and Definition of Water Transfers
III. Rationale for the Final Rule
    A. Legal Framework
    B. Statutory Language and Structure
    C. Legislative History
IV. Public Comment
V. 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
    J. Executive Order 12898: Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations
    K. Congressional Review 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 list of standard 
industrial codes for operations potentially covered under this 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.

[[Page 33698]]

 
                                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
                                237990 Other        lines, mains,
                                 Heavy and Civil    pumping stations,
                                 Engineering        treatment plants and
                                 Construction.      storage tanks.
                                                   This category
                                                    includes dam
                                                    Construction and
                                                    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.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected 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 affected. To determine whether 
your facility is affected by this action, you should carefully examine 
the applicability criteria in 40 CFR 122.3. 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. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2006-0041. The official public 
docket consists of the documents specifically referenced in this 
action, any public comments received, and other information related to 
this action. Although listed in the index, some information, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Water Docket in 
the EPA Docket Center, EPA West, 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.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Web site under the Federal Register 
listings at https://www.regulations.gov.

C. Under What Legal Authority Is This Final Rule Issued?

    This final rule is issued under the authority of sections 402 and 
501 of the Clean Water Act., 33 U.S.C. 1342 and 1361.

D. What Is the Comment Response Document?

    EPA received a large number of comments on the proposed rule, 
including thousands of form letters. EPA evaluated all of the comments 
submitted and prepared a Comment Response Document containing both the 
comments received and the Agency's responses to those comments. The 
Comment Response Document complements and supplements this preamble by 
providing more detailed explanations of EPA's final action. The Comment 
Response Document is available at the Water Docket.

II. Background and Definition of Water Transfers

    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, or very complex, 
transporting substantial quantities of water over long distances, 
across both State and basin boundaries. Water transfers may be of 
varying complexities and sizes; there may be multiple reservoirs, 
canals, or pumps over the course of the transfer, or the route may be a 
more direct connection between the donor and the receiving waterbody. 
There are thousands of water transfers currently in place in the United 
States, including sixteen 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 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 depend 
on water transfers from distant watersheds to meet their

[[Page 33699]]

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.
    The question of whether or not an NPDES permit is required for 
water transfers arises 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, typically move 
pollutants from one waterbody (donor water) to another (receiving 
water). Although there have been a few isolated instances where 
entities responsible for water transfers have been issued NPDES 
permits, Pennsylvania is the only NPDES permitting authority that 
regularly issues NPDES permits for water transfers. Pennsylvania began 
issuing permits for water transfers in 1986, in response to a State 
court decision mandating the issuance of such permits. See DELAWARE 
Unlimited v. DER, 508 A.2d 348 (Pa. Cmwlth, 1986). In addition, some 
Courts of Appeals have required NPDES permits for specific water 
transfers associated with the expansion of a ski resort and the supply 
of drinking water. See, e.g., Dubois v. U.S. Dep't of Agriculture, 102 
F.3d 1273 (1st Cir. 1996); Catskill Mountains Chapter of Trout 
Unlimited, Inc. v. City of New York, 273 F.3d 481 (2nd Cir 2001), 
aff'd, Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of 
New York, 451 F.3d 77 (2nd Cir 2006). Otherwise, however, water 
transfers have not been regulated under section 402 of the Clean Water 
Act (CWA or the Act).
    The Supreme Court recently addressed the issue of whether an NPDES 
permit is necessary for the mere transfer of water in South Fla. Water 
Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004). The 
Supreme Court in Miccosukee 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.'' \1\ If they were not, an NPDES permit 
would not be required. The Court declined to resolve the question of 
whether water transfers require NPDES permits when the waterbodies at 
issue are meaningfully distinct. The Court noted that some legal 
arguments made by the parties regarding this question had not been 
raised in the lower court proceedings and noted that these arguments 
would be open to the parties on remand. Id. at 109.
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    \1\ At the time of this rulemaking, the District Court has 
stayed its proceedings until resolution of a similar case in the 
same District Court, Friends of the Everglades v. South Florida 
Water Management District.
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    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 principal 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 generally expected water transfers would 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.
    On June 7, 2006, EPA proposed regulations based on the analysis 
contained in the interpretive memorandum to expressly state that water 
transfers are not subject to regulation under section 402 of the CWA. 
The Agency proposed to 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.'' The Act reserves the ability of States 
to regulate water transfers under State law and this proposed 
rulemaking was not intended to interfere with this State prerogative. 
See CWA section 510.
    EPA is issuing a final regulation that is nearly identical to the 
proposed rule. (Minor changes have been made for clarity.) Through 
today's rule, the Agency concludes that water transfers, as defined by 
the rule, do not require NPDES permits because they do not result in 
the ``addition'' of a pollutant. Consistent with the proposed rule, EPA 
defines water transfers in the following manner: ``Water transfer means 
an activity that conveys or connects waters of the United States 
without subjecting the transferred water to intervening industrial, 
municipal, or commercial use.'' In order to constitute a ``water 
transfer'' under this rule, and, therefore, be exempt from the 
requirement to obtain an NPDES permit, the water being conveyed must be 
a water of the U.S.\2\ prior to being discharged to the receiving 
waterbody. If the water that is being conveyed is not a water of the 
U.S. prior to being discharged to the receiving body, then that 
activity does not constitute a water transfer under today's rule. 
Additionally, the water must be conveyed from one water of the U.S. to 
another water of the U.S. Conveyances that remain within the same water 
of the U.S., therefore, do not constitute water transfers under this 
rule, although movements of water within a single water body are also 
not subject to NPDES permitting requirements. As the rule makes clear, 
in order to be a water transfer under the rule, the water must be 
conveyed without being subjected to an intervening industrial, 
municipal, or commercial use.
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    \2\ Waters of the U.S. are defined for purposes of the NPDES 
program in 40 CFR 122.2 and this rulemaking does not seek to address 
what is within the scope of that term.
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    Consider water that is being moved from Reservoir A to Reservoir B 
in a different watershed. In order to get from Reservoir A to Reservoir 
B, the water must first be released through a dam. The water then 
travels down River A, which is considered a water of the U.S. Next, the 
water is conveyed from River A to River B through a tunnel. Finally, 
the water travels down River B, also a water of the U.S., and flows 
into Reservoir B. There are several points in this example where water 
is conveyed from one body to another, but not all of those points would 
themselves constitute a ``water transfer'' because they are not the 
conveyance of ``waters of the United States to another water of the 
United States.'' The first example is the release from Reservoir A to 
River A. This does not constitute a water transfer under EPA's 
definition because the water on both sides of the dam is part of the 
same water of the U.S.\3\ The next movement is the release from River A 
into River B, through a tunnel. This release constitutes a water 
transfer under the scope of this rule because it conveys water from one 
water of the U.S. to another water of the U.S. without subjecting the 
water to an intervening industrial, municipal or

[[Page 33700]]

commercial use. Therefore, unless this conveyance itself introduces 
pollutants into the water being conveyed, the release will not require 
an NPDES permit under today's rule. River B's subsequent flow into 
Reservoir B, which is formed by a dam on Reservoir B, does not 
constitute a water transfer because it is merely movement within the 
same water of the U.S., and, as discussed above, would not require an 
NPDES permit for such movement.
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    \3\ It should be noted, however, that this release would still 
not require an NPDES permit because EPA and the Federal courts have 
determined that a discharge from a dam does not result in an 
``addition'' of a pollutant unless the dam itself discharges a 
pollutant such as grease into the water passing through the dam. See 
National Wildlife Fed'n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982); 
National Wildlife Fed'n v. Consumers Power Company, 862 F.2d 580 
(6th Cir. 1988). Cf. S.D. Warren Co. v. Maine Board of Environmental 
Protection, 126 S.Ct. 1843 (2006) (Certification under CWA section 
401 may be needed in some instances).
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    The remainder of the preamble to this final rule is organized as 
follows. Section III discusses the rationale for the final rule based 
on the language, structure, and legislative history of the Clean Water 
Act. Section IV summarizes and responds to the major comments received 
in response to the scope of the proposed rule. Section V reviews 
statutory provisions and various executive orders.

III. Rationale for the Final Rule

    On June 7, 2006, EPA published a proposed rule that would exclude 
from NPDES permit requirements discharges from water transfers that do 
not subject the water to an intervening industrial, municipal, or 
commercial use, so long as pollutants are not introduced by the water 
transfer activity itself. This proposal, like EPA's August 5, 2005, 
interpretive memorandum, explained that no one provision of the Act 
expressly addresses whether water transfers are subject to the NPDES 
program but described the indicia of Congressional intent that water 
transfers not be so regulated. Therefore, today's rule appropriately 
defers to congressional concerns that the statute not unnecessarily 
burden water quantity management activities and excludes water 
transfers from the NPDES program. This section will review the legal 
framework for evaluating EPA's interpretation of the CWA, explain the 
Agency's interpretation of the CWA, including a brief survey of prior 
litigation over the relevant statutory terms, and outline the relevant 
legislative history.

A. Legal Framework

    Under what is traditionally viewed as Chevron analysis, a court 
examining the legality of an agency's interpretation of a statute is to 
first ask whether the statute speaks clearly to the precise question at 
issue and must give effect to the unambiguously expressed intent of 
Congress if such unambiguous intent can be discerned. Chevron U.S.A. 
Inc. v. NRDC, 467 U.S. 837, 842-843 (Chevron); National Ass. of 
Homebuilders, et al. v. Defenders of Wildlife, et al., 127 S.Ct. 2518, 
2534 (2007) (NAHB). To the extent that a statute does not speak clearly 
to the specific issue, the Agency interpretation must be upheld if it 
is based on a permissible construction of the statute. Chevron, 467 
U.S. at 843; NAHB, 127 S.Ct. at 2534. Courts are required to accept an 
agency's reasonable interpretation of a statute, even if this 
interpretation differs from what the court believes is the ``best'' 
statutory interpretation. National Cable and Telecommunications Ass'n, 
et. al. v. Brand X, et al., 545 U.S. 967, 980 (2005) (Brand X).
    Deference to an agency interpretation of a statute under Chevron is 
appropriate where Congress has authorized an agency to make rules 
carrying the force of law, and such authorization is apparent where the 
agency is empowered to make rules or adjudicate issues or there are 
other indications of comparable congressional intent. United States v. 
Mead Corp., 533 U.S. 218 (2001). Congress has expressly authorized EPA 
to prescribe regulations as are necessary to administer the CWA, and 
today's rule has been promulgated to address the question whether water 
transfers require NPDES permits. CWA section 501(a); 33 U.S.C. 1361(a); 
71 FR 32887 (June 7, 2006).
    As discussed below, EPA has reviewed the language, structure and 
legislative history of the CWA and concludes that today's rule, which 
clarifies that NPDES permits are not required for transfers of waters 
of the United States from one water body to another, is a permissible 
construction of the statute. Taken as a whole, the statutory language 
and scheme support the conclusion that permits are not required for 
water transfers.

B. 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). The legal question 
addressed by today's rule is whether a water transfer as defined in the 
new regulation constitutes an ``addition'' within the meaning of 
section 502(12).
    The term ``addition'' has been interpreted by courts in a variety 
of contexts that are relevant here. Several courts of appeals have 
determined that water flowing through dams and hydroelectric facilities 
does not constitute an addition of a pollutant under the CWA. 
Specifically, the Court of Appeals for the D.C. Circuit agreed with EPA 
that the term ``addition'' may reasonably be limited to situations in 
which ``the point source itself physically introduces a pollutant into 
a water from the outside world.'' National Wildlife Fed'n v. Gorsuch, 
693 F.2d 156, 175 (D.C. Cir. 1982) (Gorsuch) (accepting EPA's view that 
the requirement for an NPDES permit ``is established when the pollutant 
first enters the navigable water, and does not change when the polluted 
water later passes through the dam from one body of navigable water 
(the reservoir) to another (the downstream river).'') The Court of 
Appeals for the Sixth Circuit reached the same conclusion with regard 
to a hydropower facilities operating on Lake Michigan. National 
Wildlife Fed'n v. Consumers Power Co. 862 F.2d 580, 584 (6th Cir. 1988) 
(Consumers Power) (agreeing with the Gorsuch Court's conclusion that 
EPA's construction of ``addition'' is a permissible one). Both the 
Gorsuch and Consumers Power courts accorded deference to EPA's 
interpretation of the CWA, and specifically to its interpretation of 
the term ``addition.'' Gorsuch, 693 F.2d at 166-167; Consumers Power, 
862 F.2d at 584.
    Three other Courts of Appeals, however, have concluded that where a 
water transfer involves distinct waters of the United States, the 
transfer constitutes an ``addition'' of pollutants. Dubois v. U.S. 
Dept. of Agriculture, et al., 102 F.3d 1273, 1298-1300 (1st Cir. 1996); 
Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New 
York, 273 F.3d 481, 491-93 (2nd Cir. 2001) (Catskill I); Miccosukee 
Tribe of Indians v. South Florida Water Management District, 280 F.3d 
1364 (11th Cir. 2002), vacated by Miccosukee, 541 U.S. at 112.\4\ These 
three Courts of Appeals construed the term ``addition''

[[Page 33701]]

so as to include transfers of water from one body to another distinct 
body (Catskill I, 273 F.3d at 491 (``EPA's position * * * is that for 
there to be an `addition,' a `point source must introduce the pollutant 
into navigable water from the outside world.' We agree with this view 
provided that `outside world' is construed as any place outside the 
particular water body to which pollutants are introduced.'') (internal 
citations omitted, emphasis added); Catskill II, 451 F.3d at 82-85) or 
transfers that cause water to move in a direction it would not 
ordinarily flow (DuBois, 102 F.3d at 1297; Catskill I, 273 at 493-94 
(explaining DuBois); Miccosukee, 280 F.3d at 1368-69).
---------------------------------------------------------------------------

    \4\ EPA recognizes that the approach adopted by these three 
courts is at odds with today's rule. None of these three courts, 
however, viewed the question of statutory interpretation through the 
lens of Chevron deference. DuBois, 102 F.3d at 1285, n. 15 (Chevron 
does not apply because the court ``was not reviewing an agency's 
interpretation of the statute that it was directed to enforce.''); 
Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New 
York, 451 F.3d 77, 82 (2nd Cir. 2006) (Catskill II) (``The City 
concedes that this EPA interpretation is not entitled to Chevron 
deference.''); Catskill I, 273 F.3d at 490 (Declining to apply 
Chevron deference, but acknowledging that ``[i]f the EPA's position 
had been adopted in a rulemaking or other formal proceeding, 
deference of the sort applied by the Gorsuch and Consumers Power 
courts might be appropriate.''); Miccosukee, 280 F.3d at 1367, n. 4 
(``The EPA is no party to this case; we can ascertain no EPA 
position applicable to [the water transfer at issue) to which to 
give any deference, much less Chevron deference.''). Moreover, the 
approaches adopted by the Gorsuch and Consumers Power courts is 
compatible with today's rule.
---------------------------------------------------------------------------

    In pending litigation, on the other hand, the United States has 
taken the position that the Clean Water Act generally does not subject 
water transfers to the NPDES program:

    The statute defines ```discharge of a pollutant''' as ``any 
addition of any pollutant to navigable waters from any point 
source.'' 33 U.S.C. 1362(12). When the statutory definition of 
```navigable waters'''--i.e., ``the waters of the United States,'' 
33 U.S.C. 1362(7)--is inserted in place of ``navigable waters,'' the 
statute provides that NPDES applies only to the ``addition of any 
pollutant to the waters of the United States.'' Given the broad 
definition of ``pollutant,'' transferred (and receiving) water will 
always contain intrinsic pollutants, but the pollutants in 
transferred water are already in ``the waters of the United States'' 
before, during, and after the water transfer. Thus, there is no 
``addition''; nothing is being added ``to'' ``the waters of the 
United States'' by virtue of the water transfer, because the 
pollutant at issue is already part of ``the waters of the United 
States'' to begin with. Stated differently, when a pollutant is 
conveyed along with, and already subsumed entirely within, navigable 
waters and the water is not diverted for an intervening use, the 
water never loses its status as ``waters of the United States,'' and 
thus nothing is added to those waters from the outside world.

    Brief for the United States in Friends of the Everglades v. South 
Florida Water Management Dist., No. 07-13829-H (11th Cir.).
    The Agency has concluded that, taken as a whole, the statutory 
language and structure of the Clean Water Act indicate that Congress 
generally did not intend to subject water transfers to the NPDES 
program. Interpreting the term ``addition'' in that context, EPA 
concludes that water transfers, as defined by today's rule, do not 
constitute an ``addition'' to navigable waters to be regulated under 
the NPDES program. Instead, Congress intended to leave primary 
oversight of water transfers to state authorities in cooperation with 
Federal authorities.
    In interpreting the term ``addition'' in section 502(12) of the 
statute, EPA is guided by several principles. ``Addition'' is a general 
term, undefined by the statute. Partly for this reason, the courts have 
accorded substantial discretion to EPA in interpreting the term in the 
context of the ``dams'' cases. Gorsuch, 693 F.2d at 175 (finding the 
statute capable of supporting multiple interpretations, the legislative 
history unhelpful, and concluding that Congress would have given EPA 
discretion to define ``addition'' had it expected the meaning of the 
term to be disputed); Consumers Power, 862 F.2d at 584-85 (agreeing 
with the analysis in Gorsuch). Moreover, several alternative ways of 
interpreting the term ``addition'' have been proposed in the context of 
water transfers. As noted above, EPA's longstanding position is that an 
NPDES pollutant is ``added'' when it is introduced into a water from 
the ``outside world'' by a point source. Gorsuch, 693 F.2d at 174-175. 
Under one interpretation, advanced by the 2nd Circuit in Catskill 
Mountain, ``the outside world'' means anywhere outside the particular 
waterbody receiving the pollutant, and so a permit in that case was 
required for movement of pollutants between distinct waterbodies. 
Catskill I, 273 F.3d at 491. EPA does not agree with this understanding 
of the term ``outside world'' as evinced by its long-standing practice 
of generally not requiring NPDES permits for transfers between water 
bodies, which it has defended against court challenges asserting that 
such transfers do require such permits. Rather, EPA believes that an 
addition of a pollutant under the Act occurs when pollutants are 
introduced from outside the waters being transferred.
    As noted above, various courts have reached different conclusions 
in determining when movement of waters of the United States containing 
pollutants constitutes an ``addition'' of a pollutant. To resolve the 
confusion created by these conflicting approaches, the Agency has 
looked to the statute as a whole for textual and structural indices of 
Congressional intent on the question whether water transfers that do 
not themselves introduce new pollutants require an NPDES permit.
    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 to the text of the CWA 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 herein is consonant with Congress's overall policies and 
objectives in the management and regulation of the nation's water 
resources.
    While the statute does not define ``addition,'' sections 101(g), 
102(b), 304(f), and 510(2) provide a strong indication that the term 
``addition'' should be interpreted in accordance with the text of the 
more specific sections of the statute. In light of Congress' clearly 
expressed policy not to unnecessarily interfere with water resource 
allocation and its discussion of changes in the movement, flow or

[[Page 33702]]

circulation of any navigable waters as sources of pollutants that would 
not be subject to regulation under section 402, it is reasonable to 
interpret ``addition'' as not including the mere transfer of navigable 
waters.
    The specific statutory provisions addressing the management of 
water resources--coupled with the overall statutory structure--provide 
textual support for the conclusion that Congress generally 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,\5\ it nonetheless establishes in the text of the Act 
Congress's general direction against unnecessary Federal interference 
with State allocations of water rights.
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    \5\ 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.'')
    An additional 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 541 U.S. 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 
pollution,\6\ 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).
---------------------------------------------------------------------------

    \6\ Sources not regulated under sections 402 or 404 are 
generically referred to as ``nonpoint sources.'' See Consumers 
Power, 862 F.2d at 582 (```nonpoint source' is shorthand for and 
`includes all water quality problems not subject to section 402''') 
(quoting Gorsuch, 693 F.2d at,166) (internal quotation marks 
omitted).
---------------------------------------------------------------------------

    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. Today's 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.''
    The text of 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 focuses on discharges from point sources of 
pollutants, it is not the kind of comprehensive program that Congress 
believed was best suited to addressing pollution, which is the term 
used for the nonpoint source program. It is this type of non-point 
source pollution that may be associated with water transfers.
    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 convey one water of the U.S. 
into another. Additionally, 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 
unassociated with 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'').\7\ The pollution from transferred waters is 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

[[Page 33703]]

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.
---------------------------------------------------------------------------

    \7\ 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).
---------------------------------------------------------------------------

    The Agency, therefore, concludes that, taken as a whole, the 
statutory language and structure of the Clean Water Act indicate that 
Congress generally did not intend to subject water transfers to the 
NPDES program. Interpreting the term ``addition'' in that context, EPA 
concludes that water transfers, as defined by today's rule, do not 
constitute an ``addition'' to navigable waters to be regulated under 
the NPDES program. Rather, Congress intended to leave primary oversight 
of water transfers to state authorities in cooperation with Federal 
authorities.

C. Legislative History

    The legislative history of the Clean Water Act also supports the 
conclusion that Congress generally did not intend to subject water 
transfers to the NPDES program. 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 in the context of the nonpoint source program 
only. 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 generally 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.
    In sum, the language, structure, and legislative history of the 
statute all support the conclusion that Congress generally 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. EPA's conclusion that the NPDES program 
does not apply to water transfers respects Congressional intent, 
comports with the structure of the Clean Water Act, and gives meaning 
to sections 101(g) and 304(f) of the Act.
    Based on these reasons, today's rule is within EPA's authority and 
consistent with the CWA.

IV. Public Comment

    EPA received many comments from the public and a number of states 
stating that the Agency does not have authority to exclude from the 
requirement to obtain NPDES permits, a specific class of dischargers 
(in this case, water transfers). These commenters were concerned that 
the proposed rule could jeopardize the NPDES and water quality 
standards (WQS) programs. In particular, they feared that point source 
regulation of discharges from impoundments used to settle mining wastes 
might fall outside the scope of section 402 if the proposed rule were 
finalized. In response to these comments, the Agency believes that 
impoundments used to settle mining process water or waste water would 
generally constitute ``waste treatment systems'' designed to meet the 
requirements of the CWA and would be excluded from the definition of 
``waters of the United States.'' See 40 CFR 122.2 (definition of 
``Waters of the United States''). The addition of pollutants from a 
waste treatment system to a water of the United States triggers the 
permitting requirement, and today's rule therefore does not affect the 
permitting of such facilities.
    Some commenters argued that the proposed rule is inconsistent with 
section 404 of the CWA (permits for dredged or fill material). They 
stated that dredged material is listed as a pollutant under section 502 
of the CWA and that the proposed rule implies that dredged material 
never requires a permit unless the dredged material originates from a 
waterbody that is not a water of the U.S. EPA believes that today's 
final rule will not have an effect on the 404 program. The statutory 
definition of ``pollutant'' includes ``dredged spoil,'' which by its 
very nature comes from a waterbody. 33 U.S.C. 1362(6); 40 CFR 232.2; 
United States v. Hubenka, 438 F.3d 1026, 1035 (10th Cir. 2006); United 
States v. Deaton, 209 F.3d 331, 335-336 (4th Cir. 2000); Borden Ranch 
Partnership v. United States, 261 F.3d 810, 814 (9th Cir. 2001). 
Because Congress explicitly forbade discharges of dredged material 
except as in compliance with the provisions cited in CWA section 301, 
today's rule has no effect on the 404 permit program, under which 
discharges of dredged or fill material may be authorized by a permit. 
33 U.S.C. 1344.
    As explained above, EPA disagrees that Congress generally intended 
water transfers to obtain NPDES permits. EPA believes that this action 
will add clarity to an area in which judicial decisions have created 
uncertainty, and for reasons previously described in section III of 
this preamble, concludes that Congress generally intended to leave the

[[Page 33704]]

oversight of water transfers to authorities other than the NPDES 
program. Congress made clear that the CWA is to be construed in a 
manner that does not unduly interfere with the ability of States to 
allocate water within their boundaries. Specific statutory provisions 
in the CWA addressing the management of water resources denote that 
Congress generally did not intend for water transfers to be regulated 
under section 402 of the CWA. Rather, sections 101(b), 208, and 304(f), 
in particular, establish a variety of programs and regulatory 
initiatives that more appropriately address water transfers. EPA's 
conclusion that the NPDES program does not apply to water transfers 
respects Congressional intent and comports with the structure of the 
CWA.

Definition of a Water Transfer

    In the proposed rule, EPA specifically requested comment on whether 
the proposed definition of a water transfer properly achieves the 
Agency's objective. Many commenters supported the Agency's proposed 
definition, either generally or explicitly. On the other hand, some 
commenters found the proposed definition too narrow and suggested that 
the Agency defer to state law. Others found the definition overly broad 
and suggested that it may encompass too many activities. These 
concerns, among others, are addressed in the following discussions.
    In response to the comment suggesting that the proposed definition 
of a water transfer is too narrow and should also include transfers 
between waterbodies defined as waters of the State, even where they do 
not constitute waters of the United States under the CWA, EPA believes 
that making such a change would not be appropriate because the NPDES 
program only applies to waters of the U.S. The same commenter also 
suggested that EPA defer to state law in defining a water transfer. In 
response, the Agency finds that a definition applicable nationwide is 
important to provide consistency in the application of this rule. 
However, nothing in this rule precludes a State, under State law, from 
regulating water transfers that are not subject to section 402 of the 
Clean Water Act. States may not exclude from NPDES permit requirements 
sources that are point sources under Federal law, including those that 
do not meet the definition of a water transfer in today's rule. For 
example, a point source that subjects waters of the United States to an 
intervening industrial, municipal or commercial use could not be 
exempted from NPDES permitting requirements under State law.
    This rule expressly states that ``discharges from a water 
transfer'' are not subject to NPDES permitting. The Agency defines a 
water transfer as ``an activity that conveys or connects waters of the 
United States without subjecting the transferred water to intervening 
industrial, municipal, or commercial use.'' A water transfer is an 
engineered activity that diverts a water of the U.S. to a second water 
of the U.S. Thus, commenters who read the natural convergence of two 
rivers as being a water transfer are incorrect, though such natural 
convergences also do not require NPDES permits.
    Some commenters sought clarification of certain elements of the 
term ``water transfer'' while others suggested changes they believed 
would either clarify or improve the scope of the term. Commenters 
suggested that EPA change the use of the term ``activity'' to either 
``occasion,'' ``instance,'' or ``occurrence,'' such that the definition 
would read: ``water transfer means an instance in which waters of the 
U.S. are conveyed * * *.'' The commenters' concern is that the term 
``activities'' narrows the rule to only human directed or controlled 
events rather than any instance in which water supplies are moved. The 
Agency disagrees that the change is necessary. By ``activity,'' the 
Agency means any system of pumping stations, canals, aqueducts, 
tunnels, pipes, or other such conveyances constructed to transport 
water from one water of the U.S. to another water of the U.S. Such a 
system may consist of a single tunnel or pumping station or it may 
require the use of multiple facilities along the course of the transfer 
to reach the second water of the U.S.

Intervening Industrial, Municipal, or Commercial Use

    A discharge of a pollutant associated with a water transfer 
resulting from an intervening commercial, municipal, or industrial use, 
or otherwise introduced to the water by a water transfer facility 
itself would require an NPDES permit as any discharge of a pollutant 
from a point source into a water of the U.S. would. The most frequent 
comment on the proposed definition was that the phrase ``intervening 
industrial, municipal, or commercial use'' was unclear or overbroad.\8\ 
EPA disagrees that this phrase is unclear or overbroad, and provides 
clarification and examples of intervening uses below.
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    \8\ EPA's discussion of intervening uses is not intended to 
address or exclude any other activity that is currently subject to 
NPDES permitting. For example, this rule does 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. Nor does this 
rule change EPA's 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.
---------------------------------------------------------------------------

    For example, if the water is withdrawn to be used as cooling water, 
drinking water, irrigation, or any other use such that it is no longer 
a water of the U.S. before being returned to a water of the U.S., the 
water has been subjected to an intervening use.\9\ In contrast, a water 
pumping station, pipe, canal, or other structure used solely to 
facilitate the transfer of the water is not an intervening use.
---------------------------------------------------------------------------

    \9\ Note that return flows from irrigated agriculture are exempt 
from the requirement to obtain a NPDES permit under both the Act 
itself and 40 CFR 122.3. Today's rule does not affect that 
exemption.
---------------------------------------------------------------------------

    The reintroduction of the intake water and associated pollutants 
from an intervening use through a point source is an ``addition'' and 
has long been subject to NPDES permitting requirements. See, e.g., 40 
CFR 122.2 (definition of process wastewater); 40 CFR 125.80 through 
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. In these 
situations, the reintroduction of water and that water's associated 
pollutants physically introduces polluta