Everything you need to know about the cLean Water Act . . .related to water supply

1. Everything you need to know about the cLean Water Act . . .related to water supply • KATHERINE SLAUGHTER • FORMER ATTORNEY, • SOUTHERN ENVIRONMENTAL LAW CENTER • FORMER CHARLOTTESVILLE CITY COUNCIL MEMBER

2. MY TOPIC: FEDERAL LAWS RELATED TO WATER SUPPLY CLEAN WATER ACT 401 Certification by state DEQ understate water control law

3. CLEAN WATER ACT • 1969 – Cuyahoga River on Fire • 1972 – Clean Water Act (CWA) : RESTORING & MAINTAINING CHEMICAL, PHYSICAL &BIOLOGICAL INTEGRITY OF THE NATION’S WATERS. • NATIONAL POLICY TO CONTROL POINT SOURCES,, E.G.., PIPED DISCHARGES, NOT WATER SUPPLY.

4. Some Non-PointSources are now “point” LARGE SCALE POULTRY, HOG, BEEF OR DAIRY FACILITIES: INDUSTRIAL SIZED ANIMAL PRODUCTION CALLED CONFINED ANIMAL FEEDING OPERATIONS (CAFOs) MUNICIPAL STORMWATER CONSTRUCTION STORMWATER LIKELIHOOD OF DISCHARGES >>> CWA. Not A CAFO But Also Not Regulated >>>>>

6. BASICS CONTINUED • CWA WORKS AS A FEDERAL-STATE COOPERATIVE PROGRAM • EPA SETS FEDERAL WATER QUALITY STANDARDS AND REGULATIONS THAT THE STATE AGREES TO FOLLOW (OR ALLOW EPA TO REGULATE) -- “DELEGATION” • VA IS A DELEGATED STATE – VDEQ

7. PROVISIONS OF CLEAN WATER ACT • STATE CERTIFICATION (VA) • BASIC NPDES (POLLUTION DISCHARGE PERMIT) (VA) • 404 PERMIT TO DISCHARGE FILL (ALTER/ DESTROY WETLANDS) (Corps of Engineers and VA) • RESEARCH • OTHER PROGRAMS – INCLUDING CB

8. 402 - CORE CWA PROGRAM DESIGNED TO END POLLUTION • EPA – SETS WQ STANDARD – STATE FOLLOWS • EPA DELEGATES ADMINISTRATION/IMPLEMENTATION TO STATE • VA ISSUES PERMITS FOR DISCHARGE OF POLLUTION– NPDES/VPDES • SEWAGE TREATMENT PLANTS (STPs, INDUSTRIES) E..G. MOORE’S CREEK STP, CVILLE, RICH STP; HOPEWELL STP, ETC.

10. Individual permits or General Permits? • INDUSTRY: Large Complex Facilities • SMITHFIELD FOODS • VIRGINIA DOMINION, ETC.

12. General permits • Seafood Processing Facilities • Petroleum Contaminated Sites and Hydrostatic Tests. • Discharges of Storm Water Associated With Industrial Activity. • Non-Metallic Mineral Mining • Concentrated Animal Feeding Operations • Concrete Products Facilities • Car Wash Facilities • Domestic Sewage for Facilities at 1000 or less Gallons per Day.

14. BUT… IN ADDITION TO SECTION 402 PERMITS . . . • WATER SUPPLY PROJECTS ALSO INVOLVE WATER QUALITY. . . REMOVING WATER FROM A STREAM CHANGES ITS CHEMISTRY • CWA 401 & 402 APPLY: • SECTION 401 –STATE CERTIFICATION OF WATER QUALITY IMPACTS OF PROJECT • SECTION 404 – DISCHARGE OF FILL INTO WATERS OF US (INCLUDING WETLANDS) WITH POLLUTANTS

16. 404 PERMIT • U.S. ARMY CORPS OF ENGINEERS • (1899 RIVERS AND HARBORS ACT) • WATERS OF US: IF WETLANDS OR STREAMS DESTROYED OR ALTERED DUE TO DEVELOPMENT, INCLUDING WATER SUPPLY, CORPS OF ENGINEERS (NORFOLK OFC) MUST ISSSUE PERMIT. • MITIGATION (3-1) USUALLY REQUI.RED. • EX: PROPOSED MATTAPONI RESERVOIR – OVER 400 ACRES WETLAND & 21 MI STREAMS – PROJECT DENIED, ACCEPTED, DROPPED BY CITY OFNEWPORT NEWS

18. 401: but also here’s WHERE WATER SUPPLY can COME IN • WHENEVER A 404 PERMIT ISSUED, E.G., FOR A WATER SUPPLY OR OTHER PROJECT, • STATE HAS THE AUTHORITY UNDER 401 TO ENSURE THAT THE PERMIT MEETS ALL STATE REQUREMENTS. • (CORPS REQUIREMENTS ARE USUALLY THE MORE STRINGENT ONES)

19. CONFORMANCE WITH STATE LAW? • INSTREAM FLOW? PROTECTIVE OF EXISTING USES? (RECREATIONAL, AQUATIC LIFE, “FISHABLE, SWIMMABLE”) • COMPLIANCE WITH COASTAL MANAGEMENT PLAN UNDER CZMA. • OTHER IMPACTS: FISHERIES/WILDLIFE, • IENDANGERED PLANTS/HABITAT.

20. VIRGINIA WATER PROTECTION PERMIT - 401 CERTIFICATION – SCOTT KUDLAS • Includes: PROJECTED NEED • PROJECTED SUPPLY AND DEMAND • WQ STANDARDS, LIMITS AND OTHER CONDITIONS, INCLUDING INSTREAM FLOW. • PERMIT BASED SOLELY ON WQ ISSUES • ALTERNATIVES ANALYSIS TO MEET NEED, INCLUDING PROJECTIONS, FLOW REGIMES

21. EMERGING ISSUES in Water Supply? • HERE’S BUT ONE LIKELY TO BE A HOT ISSUE IN THE VIRGINIA GENERAL ASSEMBLY NEXT YEAR 2012 • >>>>>>>>>>>>>>

22. URANIUM MINING AND MILLING IN SOUTHSIDE VIRGINIA AND BEYONDFOCUS ON Chatham /Danville areaUranium mining/milling in Piedmont could involve a larger portion of VA

24. Regulatory scheme for uranium URANIUM MINING & MILLING • Va legislative moratorium on mining of uranium since 1982 • Federal Nuclear Regulatory Commission (NRC) regulates processing/milling of U under Uranium Mill Tailings Radiation Control Act (UMTRCA): • Disposal of & stabilization of mill tailings BUT NOT MINING • State may assume federal role if State has same/better regulations than NRC. • Virginia likely to become an Agreement State for uranium mill tailings. • When U milled out, Federal or state takes ownership of former milling site.

25. EPA OVERSIGHT OVER WATER LEAVING SITE • LOOPHOLE: EPA has a no-discharge-of-water rule EXCEPT in instances where the amount of precipitation exceeds evaporation. • VA - significant storm events where precipitation exceeds evaporation. • Stormwater could legally be discharged during storm events. • LOOPHOLE: EPA does not regulate mining overburden.(waste rock with U) • Lake Gaston – water supply for Virginia Beach, Norfolk, Portsmouth & NC cities – VB Study I >>>>>>>

26. “Depending upon whether it is wet or dry following a significant contamination event, it could take two months or two years to flush dissolved and suspended contaminants from both reservoirs.” Virginia Beach Study Presentation, February 7, 2011 to National Academy of Sciences Study Group

28. QUESTIONS regarding CWA ?