Comment submitted by Gary Bracht, Program Manager, NDPDES Program Manager, North Dakota Department of Health, Division of Water Quality

August 7, 2006 RE: Docket ID No. EPA-HQ-OW-2006-0141 To whom it may concern: I am writing on behalf of the North Dakota Department of Health, Division of Water Quality, regarding the National Pollutant Discharge Elimination System (NPDES) Water Transfers Proposed Rule. This rule would exclude water transfers from regulation under section 402 of the CWA. The Department is in general agreement with the proposed rule; however, will provide comments on specific items where additional clarification is needed. 1. The rule defines a water transfer 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. This definition raises questions on the determination if the facility or water being transferred is adding pollutants (see #2 below). 2. The proposed rule is not clear when it comes to distinguishing between situations where the water transfer facility ?adds? pollutants to the water being transferred and thus must obtain a permit and those situations where waters merely pass through the facility without the addition of any pollutant. Courts have reached different conclusions based on their interpretation of the term ?addition? holding that certain activities require an NPDES permit (Dubois, Catskill Mountain and Miccosukee). If a lake/reservoir with high nutrients or algae growth discharges into a river of better quality does the transfer constitute the addition of pollutants and need an NPDES permit? Is a NPDES permit required if high mineral content (total dissolved solids) water is discharged into low mineral content water? With limited information provided by EPA on what constitutes ?adding pollutants? to the water being transferred can result in additional legal battles and court decisions as it relates to NPDES permitting. 3. Subpart V. ?Designation Authority,? mentions that EPA considered, but did not propose an additional provision allowing states to designate particular water transfers as subject to the NPDES program on a case-by-case basis. EPA further mentions that without this designation authority, states could not issue an NPDES permit for water transfers. EPA needs to include the designation authority in the final rule to allow states the option of designating water transfers on a case-by-case basis for NPDES permitting. This designation authority provides states flexibility on handling water transfers. States would have the option of requiring NPDES permits on all water transfers or to designate a NPDES permit on a case-by case basis. A program states have that can be used to address water quality impacts from water transfers is through 401 water quality certification. States could also address water quality through the use of a memorandum of understanding or agreement. Although these are binding documents between agencies or entities, they do not hold the same weight as an NPDES permit. Thank you for your time and consideration. Sincerely, Gary Bracht NDPDES Program Manager Division of Water Quality