Document DqO0zaZYvDR0e4Kvb7J36vxN

LGAC s Protecting America's Waters Workgroup Major Themes-W OTUS Issues- June 07,2017 | 1 > Water: Our Nation's Health and Wealth 2 Water resources are the lifeblood for our nation's cities, towns and small rural communities. It is 3 essential for the health, prosperity and security for our citizens and is among the top priorities 4 for us in local governments. As State, local and tribal government partners we desire to manage 5 our water resources so that we have reliable and safe water supplies to create jobs, attract 6 industry and investment, and provide for the health and welfare of citizens. A common 7 understanding of the value of water and how it impacts the health and prosperity of us at the 8 local level is important for governmental decision-making. For example, water infrastructure 9 costs are estimated to be $100 per household per year, fop||l|Jler communities, these same 10 costs are $400 to $800 more per year.1 Estimates range for every $1 million investment in water 11 infrastructure it supports between 15 and 18 jobs throughout the economy. Disruption in our 12 nation's water supply, would greatly impact our economy on a large scale.2 For example, one 13 day's disruption for the service industry wouldiiliult in a 70%i|||ption in sales. For the 14 petroleum industry (highest), the loss would be $5,800 per employee (7 days the equivalent of 15 1% of annua! income). Therefore, protecflltunder the Clean WateU|||||or the 117 million 16 people (one third of Americans) that rely on these waters as part of our public drinking water 17 assets are decisions of public trust and stewardship. Balancing the CWA authorities to protect 18 rivers, lakes, streams and wetlands and to keep them healthy and safe is the responsibility of all 19 levels of government. At the same time costs of treatment should not be transferred directly to 20 the rate payer - at the tap. 21 22 > Local Governments and Cooperative Federalism 23 The Clean Water Act (CWA) as amended in 1972, established the basic structure for protecting 24 our nation's wateMesources,by,.regulating,pollutant discharges into the waters of the United 25 States. Clean Water Act programs are largely federal, state and tribal programs. The CWA 26 Section 404 is an ERA and Corps of Engineer (joint: program) which regulates discharges of 27 dredged or fill materials into Waters of the United States, including wetlands. On February 28, 28 2017, the President of the United States issued an Executive Order directing ERA 29 and Department of the Army to review and rescind or revise the 2015 Rule. The EPA and the 30 Army Corps of Engineers are in the process of considering a revised definition of "Waters of the 31 United lilie s " consistentlllth the Executive Order. Local governments support a straight 32 forward rulemaking process, inclusive of the tenants of cooperative federalism. This approach 33 acknowledges the shared responsibility of state and local governments in the governance and 34 cooperation to w liliio u il l iails of responsibility. CWA Section 404 is largely federal with the 35 exception of a small number of State Assumed 404 Programs (Michigan and New Jersey). If 36 empowered, states and tribes could play an increased and more efficient role in managing the 1http://www, nerwa.org/gwnews/db212..pdf, The Value of Water and the Water Operator, by Doug Buresh, Circuit Rider #3 2 http;//tlhevalueofwater ;p rg / site s/ d e fa u lt/fn e s/ E c o n o m ic ^ ructure_^/OW_FjNAI=_pa^ Value of Water Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069206-00001 LGAC s Protecting America's Waters Workgroup Major Themes-W OTUS Issues- June 07,2017 | 37 program. Local governments too, have a strong role to play and can be key strategic partners in 38 protecting our nation's water resources. Local governments manage broader water quality 39 protection efforts such as managing stormwater, flood protection and enhanced watershed 40 protection along with protecting the sources of drinking water. Local governments have the 41 tools to strengthen wetland and stream protection efforts that better support community goals 42 with greater protection for the resource. Integrated Planning (IP) offers municipalities the 43 opportunity to meet multiple Clean Water Act requirements by sequencing separate 44 wastewater and stormwater programs while maximizing investments so that the highest priority 45 projects come first. EPA, states, and municipalities have achieved progress in implementing IP 46 approaches while addressing the most serious water quality issues in order of priority to protect 47 public health and the environment. 48 49 > Clarity and Predictability 50 A central theme heard by the LGAC in p u b liiB ilfin g s of state, loilil&nd tribal government 51 officials on the 2015 'Waters of the U.S.' rule is that definitions were too broad or confusing and 52 were subject to interpretation through litigation. Key terms used in the WOTUS rule are vague 53 such as "uplands," "tributary," "floodplain," "sipl llicantahilil." "adjacent."l i d "neighboring" 54 but are also important in defining what waters are jurisdictional. These terms are either broadly 55 defined, or not defined at all which has led to further confusion, not less, over what waters fall 56 within federal jurisdiction. Local governments need a rule that that puts forward clear 57 definitions and provides examples and graphics for further clarity. Without this clarity, it could 58 lead to further unpredictability and result in unnecessary project delays, subjective judgements 59 and inconsistency across the country. 60 61 > Flexibility and Regionalization 62 In formulating a revised 'Waters of the U.S.' rule it should have flexibility and reflect natural and 63 regional variability of our nation's waters. As a basic approach, criteria could be established that 64 recognizes natural ecoregions (delineated on the basis of natural and anthropogenic factors) to 65 recognize geographic variability among regions. States and tribes should have further input in 66 this process to modify or improve on this basic approach. Workgroups made up of federal, state 67 and iocliilfficials could Hli|lestablisnj:tbcal delineation factors characteristic of these regional 68 waterbodifiliuch as westililephemeral streams, and other unique wetlands such as pocosins, 69 Carolina bays etc. should be factored. Western arid streams may need further regional 70 determinations a lllih e liilth e se areas are washes and otherwise dry channels characterized by 71 irregular (not seasonal) ephemeral flows or may actually qualify as waters of the United States. 72 These jurisdictional calls of WOTUS should be the exception rather than the rule. Also, wetlands 73 and streams in the State of Florida also should be considered in separate regional guidance since 74 most of the State could be classified as a Waters of the U.S. due to high groundwater tables and 75 surface connections with waters of the U.S. 76 77 > Enhanced State and Local Government Role 78 States play a vital role in the protection of wetlands by addressing waters and activities that 79 ore not regulated under the Section 404 program, or by imposing additional limits on Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069206-00002 LGAC s Protecting America's Waters Workgroup Major Themes-WOTUS Issues- June 07,2017 80 activities that are regulated under that program. Pursuant to Section 404(g) of the Clean 81 Water Act, a state can assume the authority to issue permits for the discharge of dredged or 82 fill material into waters regulated under the Clean Water Act other than traditional 83 navigable waters or waters seaward of the high water mark (33 U.S.C. 1344(g)). EPA's 84 regulations also authorize tribes to assume Section 404 permitting authority within their 85 jurisdiction (40 C.F.R. 233.2). In order to assume Section 404 permitting program, a state 86 must enact laws and regulations to create a program that meets requirements designed to 87 ensure that the state can administer the Section 404 pernjjtting program as the Corps. This 88 process could be streamlined and could be incentivizedJiilltate assumption. States can 89 play a greater role in the administration of the federillfligram and streamline permitting 90 for developers in the state through a State Pro p railjillillSen eraI Permit. CWA Section 91 404(e) authorizes the Corps of Engineers to issud.flneral p l|||its "on a state, regional or 92 nationwide basis for any category of activitilililVolving d is c h liiis of dredged or fill 93 material" if there are only minimal adveiillihvironm ental effeclilliocai regulation of 94 wetlands in addition to the state and fedliifcprograms have many j j l i f i t s as well. Local 95 decision makers have numerous land use td liila vaila b lilh a t can be m lilleffective. and 96 with less cost, protect sensitivillandscapes valililtellllMWeir community sd lp as with 97 building permits, zoning authd|||||l|j|ary and heliijkcodes. and soil erosion control. 98 99 > Modified Scaiia Approach 100 The Scaiia opinion applies a narrow interpretation to CWA jurisdiction, extending the agencies' 101 regulatory authority only to "relatively permanent, standing or continuously flowing bodies of 102 water" connected to traditional navigable waters, and to ''wetlands with a continuous surface 103 connection to" such relatively permanent waters. Local governments in general support a 104 narrow interpretation and put forward that the criteria in the 20083guidance has clear criteria 105 for categorical jurisdiction of `yes', `no' or 'maybe' which might be considered as a modified 106 Scaiia approach. Local governments are also concerned about the assurances that water 107 Filiurces which provide (or potentially provide) our communities' drinking water and source 108 water are regulated and protected. These significant waterbodies form the assets of our water 109 infrastructure and these areas may or may not fall within the Scaiia interpretation as "connected 110 to a federllllavigable w a tllia v ." Local governments would potentially support States and 111 Tribes assistihllPJdentifyllllse significant waterbodies by delineating and mapping these 112 significant 'Waters of the State'. These areas once identified should have primacy in decision 113 making. 114 115 > Exemptions 116 Exemptions for stormwater and green infrastructure are important for local government. Local 117 governments would be supportive of a revised rule that would retain codification of the waste 3 https://www.epa.gov/cwa-404/2008-r3panos-guid3nce-3nd-related-documents Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069206-00003 LGAC s Protecting America's Waters Workgroup Major Themes-WOTUS Issues- June 07,2017 | 118 treatment exemption. It should also extend to MS4s, stormwater ponds, settling basins recycled 119 water facilities which depend upon artificially created wetlands and storage ponds to treat 120 millions of gallons of water a day. There has also been a major concern of county governments 121 that roadside ditches are exempt. The revised rule should affirm also that reservoirs along with 122 influent and treated effluent storage ponds are within the scope of the waste treatment 123 exemption, consistent with the regulatory definition of "complete waste treatment system" 124 found in existing federal regulations including features such as storage ponds, basins, artificially 125 created wetlands, recycled water reservoirs and other features associated with water recycling.4 126 127 > Permitting Reform 128 The permitting system is complex and outdated. Agencies' budgets and staffing are 129 overwhelmed and lack resources to respond to individual permits. At: the same time, the private 130 sector confronts time-consuming requirementi||lt pose signiifbllt delays and economic 131 burdens. Permitting can be made more e f l l l l l t and more effective,.fjqr example, permitting 132 length of time can be done more efficienlillless than 60 days) and itlSllalso be more flexible, 133 decentralized and integrated with eommumfildals. Local governments f ilik J be generally in 134 favor of State Assumption of the 404 program i i l i i :th|i|livations to strifUfine the 135 permitting process. Also, further consideration of General Permits and mapping would aid in 136 permitting reform. 137 138 > Agriculture, Rural Communities and Waters of the U.S. 139 Agriculture and rural communities have expressed concerns about the Waters of the U.S. Most 140 of the concern of the rule has been whether it,w.o.uId modify existing statutory provisions that 141 exempt "normal farming and ranching" practices from dredge and fill permitting or others that 142 exclude certain agricultural discharges, such as irrigation return flow and stormwater runoff, 143 from all CWA permlUllja. ThillhersikeY arealllioncern was the confusion whether or not 144 ditches were exempt. Normal agricultural and silvicultural practices are exempt but the 145 interpretive rule issued (but then withdrawn) to clarify the 56 practices that are exempt from 146 CWA Section 404 permitting was very confusing to farmers. Other issues for rural communities 147 is the NPDES permits for application of pesticides and herbicides in WOTUS. Also, there is a 148 conciffl that 'prior conllfted cropfI l l s ' which are exempt if they are certified by NRCS are also 149 exempt film wetland re^lil tions administered by the Army Corps of Engineers and ERA 150 (Section 404 of the Clean Water Act). However, if the land changes to a non-agricultural use, or 151 is abandoned, according to the criteria established by the Corps and EPA, it may be regulated 152 under the CWA. These issues combined with the complexity of the WOTUS and the role of the 153 NRCS poses significant issues for the agricultural sector and rural communities. 154 4 1 See 40 C.F.R. 35.2005(b)(12), defining "complete waste treatment system" as "all the treatment works necessary to meet the requirements of title III of the [CWA], involving . . . the ultimate disposal, including recycling or reuse, of the treated wastewater and residues which result from the treatment process." Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069206-00004 LGAC s Protecting America's Waters Workgroup Major Themes-WOTUS Issues- June 07,2017 | 155 > Outreach to Local Governments 156 There is a need for enhanced outreach to local governments. Its significance in WOTUS decision 157 making is all the more critical. A comprehensive communication strategy is needed for local 158 governments that improves the channels of information distribution, and explicit 159 communication at all levels of government. Getting information into the hands of local 160 governments where it will have the most impact must be a priority. This is particularly 161 relevant in small, disadvantaged and ethnically diverse communities. Local governments need 162 to act effectively so that information will reach all relevant parties so it can also be readily 163 communicated effectively to citizens. Therefore, there wilibe a pressing need to improve 164 governmental communication and transfer of inform ailllllfnong the EPA, state, tribal and 165 local governments, and getting that information o u l l l l l e public. Specific tailored 166 information for local elected officials is also n e e d llf ib ll| :y the effective changes of the 167 WOTUS rule. 168 169 Affordability 170 One of the common themes heard from locaisgovernments revolves arllfid affordability. This 171 issue has several components including the aii|||;:pf ratepayers to pay t h lljis t of regulatory 172 compliance, poilution and cleanup costs, punitidilli s fl ll l i l only serve to re8||fe local 173 government resources and thefliliilportionate coUll r small and economically disadvantaged 174 communities. If the goal Is safe, dii i n'H l l l nthroughouti l e.,country. innovation in approach and 175 cost allocation must be consideredllfhe f i l l i l ! .state, trlBilland iocal levels. 176 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069206-00005