Document RJLYZj7gLLZNXkbjoGkKyGRkV

C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 1 CHARGE QUESTIONS AND DRAFT RESPONSES 2 > Question: 1- How w ould you like to see the concepts of 'relatively perm anent' and 'continuous 3 surface connection' be defined? How w ould you like to see the agencies in terpret 'consistent 4 w ith Scalia'? Are there particular features or im plications of any such approaches th a t the 5 6 agencies should be m indful o f in developing the step 2 proposed rule? 7 l.a . How would you like to see the concepts of 'relatively permanent' and 'continuous surface 8 connection' be defined? 9 10 Background: 11 In the Rapanos v. United States S47. U.S. 715 (2006), the S uprei^llliC irt'^piiyded a plurality decision of four 12 justices, ied by Justice Scalia. The decision basically challenged federal jurisdiction to regulate isolated 'wetlands 13 under the Clean Water Act. it also applied a very narrow in fii|illltio n to CWA jurisdiction, extending the agencies' 14 regulatory authority only to "relatively permanent, standing-- intinuouslv flowing bodies of water" connected to 15 traditional navigable waters, and to "wetlands with a co h |||p u s surface connection to" such relatively permanent 16 v/aters. Justice Kennedy focused on whether the waters inspuestion have a "significant nexus" to traditional navigable 17 waters, /.e., whether they, "either alone or in combination wi!i|!!|giiariy s itg llld lands in the region, significantly affect 18 the chemical, physical, end biological integrity of other covered 'waters a te .readily understood as 'navigable." 19 The LGAC has previously commented that ii||j|||ijd ,p r e fe r a ciea?i|||j'simple approach for jurisdictional 20 determinations such as an approach that y i e l i | | | | f i | | | | i j answers of||||pietio ri in these categories: 'yes', 'no' or 21 `maybe' responses. Any of these answers are s lly e n P ilillip l governm i|i|yf these answers are provided in a 22 timely fashion. 23 Recommendation: EPA a n d ||||ll|||||b o u ld applyli||ple a p p f | | | i | | | | t yielofifisdictional calls with simple 24 criteria that give a `yes', `: ii| | p limaybil|||yver. (LGAt|l|epglll|1''4) .. 25 [Council Member Brad Pierce-City of Aurora, CO Comments] 26 ....................... 27 Potential Approaches to "Relatively Perm anent" Waters 28 The potential approaches to include streams w ith seasonal flows or streams w ith another offlow will 29 capture ephemeral and interm ittent streams into the definition of "relatively permanent" waters, 30 which we believe is inappropriate. Each o f these approaches w ould need to define metrics and 31 th re s h o ld iliiiv w h ic h a streliBfcis c o n ifliie d "relatively perm anent," and such metrics w ill vary 32 geographicalflilh: a case-bv-calllbasis and the definition of thresholds w ill be subjective. 33 Including perennial streams only as "relatively perm anent w aters" is the appropriate approach. EPA 34 should ensure th a t ephemeral and in te rm itte n t streams and erosional features in the arid West, such 35 as arroyos and dry w a ii|||j||p B n - ju r is d ic tio n a l. Ditches and canals th a t only carry In te rm itte n t flows 36 o f w ater and th a t are not a relocated trib u ta ry or excavated in a tributary, as well as storm w ater control 37 features th a t periodically flo w in response to significant precipitation events, should also be exempted. 38 Potential Approaches to Wetlands w ith a "Continuous Surface Connection" 39 The potential approach to develop metrics to identify "some degree o f connectivity" should not be 40 utilized. This w ill require subjectively defining thresholds fo r w hat constitutes a significant degree of 41 connectivity, w hich should be avoided. W hile including as jurisdictional those wetlands th a t directly 42 touch jurisdictional waters is appropriate, there may also be circumstances where the current 43 practice o f considering wetlands w ith a continuous surface connection, regardless o f distance, to be Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00001 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 44 jurisdictional is not appropriate. Such connections should be perennial and should not include 45 ephemeral and interm ittent connections. 46 Wetlands w ith permanent, continuously flowing, surface connections should be included. Where 47 such connections do not exist, the wetlands should be exempted. EPA should ensure th a t where 48 there are overland flows through dryland breaks to a WOTUS, this type o f break renders a trib u ta ry 49 up gradient o f the dryland break to be non-jurisdictional. EPA should explicitly recognize th a t 50 features w here w a te r may be present (for instance, in residual ponds resulting from placer or other 51 mining efforts) are not jurisdictional w here a continuous physicaklhannel is absent, a bed-and-bank 52 is not discernible, an ordinary high w a ter mark is not o b se rva b lll and/or there are no flow 53 characteristics. 54 55 1.b. How would you like to see the agencies interpret 'consistent with Scalia'? 56 Background: 57 EPA and the Corps issued the 2008 guidance document fo!iBf|||g. the Rapanos case that w lillte n d e d to clarify 58 WOTUS. ft does so by asserting GWA jurisdiction over waters fWjfcrouMUMi t either the plurality test (relatively 59 permanent; continuous surface connectionh:the: Kennedy test ( l i | | i | | | h l nexus), in the Guidance and 60 Memorandum of Agreement between the Corps and SPA, there is key questions and answers, that generally 61 breaks the jurisdictional analysis into three m a ||A ca t||l|e s- NOTE: Tli:i|(yidance did not go out sufficiently for 62 public review and was not communicated w illlo iodiiibM ernm ents ilis D th e r stakeholders. The first, and 63 presumably more manaaeabie, category inciudehiife.se w a fiiiiite r which CWAgurisdiction will be asserted in every 64 case; those that do not and thesmayfee. that have a'liijpificant h l | | | | | .: 65 1.c. Are there particular features or implications of any such approaches that the agencies should be 66 mindful of in developing the step 2 proposed rule? 67 68 ^RecommendiliifliCdteria as 5Tjiii|it^:cij;i|!i!!!;i|i!|i!i::;guidancrSiraithd or modified can be modified to address clearer 69 definitions a i l l | l l l l i i l l b s . of q u d lllllP & f relafi:fi||l|e :rm a n iill)r continuous, if answers are `yes' or 'no' it leads to 70 a 'yes', ':|i|||ffr ia y b e ' ju llilig p n a i di!|||gpation. 71 Recom rfiillation: EPA and t f i l i | | | :rps srilljltestablish an Interagency Taskforce to develop the matrix of 72 questions to i||||rn in e `perm aneniliid `c o n tih li||' indicators. Their results should be published and the public 73 given the o p p o rfi||y to give c o m m e liltG A C 20i||Report) 74 R ecommendafion: An application for Smart phone or hand-held computer should be developed to give a quick 75 jurisdictional determination and sent tp ||||n terested parties. (LGAC 2014 Report) 76 Re commendation: Manmade conveyances, stormwater treatment systems, ditches, farm and irrigation ditches and 77 green infrastructure amenities should be exempt from jurisdiction Where possible, EPA and the Corps should 'work 78 with State, local and tribal governments to map these features as weli. (NOTE: Drinking water and wastewater 79 treatment utilities may have these features mapped as part of Asset Management features). (LGAC 2014 Report) 80 81 82 83 84 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00002 LGAC s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 j 85 > Q uestion 2- W hat opportunities and challenges exist fo r your locality w ith relying on Justice 86 Scalia's opinion? 87 88 Background: 89 Cities and communities care deeply about the quality of water. A concern is 'where interpretative rules that do not 90 provide sufficient clarity, may add to costs and delays without causing important improvement to water quality. 91 (Goodman letter) We understand that the goal is to make it easier to identify WOTUS a rule interpreting Scalia may 92 not draw bright enough lines for local governments to easily identify those waters affected. Therefore, the use of the 93 Scalia approach of itself Is unlikely to significantly resolve all of the considerable uncertainty surrounding CWA 94 jurisdiction (either then or now), or prevent continuing litigation to test the agencies' interpretations in the federal 95 courts. However, the 2008 guidance does have criteria that will pose less uncertainty and yield faster resuits, if the 96 guidance were to be revised to include clearer definitions and for review J f c eHnout from states, local arid tribal 97 governments and other stakeholders it could perhaps help fo resolve these issues. 98 99 Recommendation: Relying on a modified Scaila approach witH:1|i|lifi8d 2||||guidance can provide a clearer 100 certainty of federal jurisdictional waters which will lead to moremertainty and m d||||se in permitting, 101 > Question 3: Are there other approaches to defining "waters of the UrS." that you would like 102 the agencies to consider to providing clarity and regulatory certainty? 103 104 Background: 105 The 2008 guidance document issue post Rapanss offers a s s is ta h i|i||lp fite ria fo assess jurisdiction of WOTUS 106 (post Rapanos). It is consistent with the Scalia approach but also asserts a modified CWA jurisdiction over some 107 waters. This approach would reflect the opportunity to cover waters significant to states, locals and tribes. The 108 WOTUS rule also confirms certain exemptions from federa! jurisdiction, offering federal clarification where there has 109 previously been uncertainty. These exemptions include stormilef,detention.ponds, wastewater treatment facilities, 110 and "puddles," 111 112 Recommendation: The LisAS recom m d||| that a simil|pproach articulated in the guidance to the 2008 guidance 113 be used to revise the W 0 7 lj:i l | j p . 114 R e c o m m ||||j!|!| ||i|jjp a n t n i | ( | | | | i ! :'f f fi!^ |e rs tR|||significantly affect the chemical, physical, and 115 b io lo g icp jllllp iiy" of fS :|||i|ly naV |i|| waters, ! i ) i | | | | :y\i'QtUS Rule covers waters that affect the "chemical, 116 physicaliilpiologicai n te g ii|||f:pavigl|j|||;aters. T h a f ii| ild be changed to `and' and include ail three 117 parametefliii|UpAC 2014 Repcf|||||:, 118 R e c o m m e n d illls The 2015 ruie :||||la fe s a h f||||a having a trace amount of water if it also has - or ever had - a 119 bed, banks, and t i narv high w a tlH a rk (OHWM). This could include many stormwater channels and other 120 features that are alto||prpetua!ly dr||!py channel that is part of a stormwater, drinking water utility treatment 121 system should be exempt from a W O tl|||urisdictional determination. For the 2017 revised rule, there could be more 122 predictability and certainb^ B n eraMirB is a dry bed with a OHWM (with historical aerial or infrared photography 123 that it can be established a ^^t|i|^iii^!::' 124 > Question 4-The agencies' economic analysis for step 2 intends to review programs under CWA 125 303, 311, 401, 402 and 404. Are there any other programs specific to your locality that could 126 be affected but would not be captured in such an economic analysis? 127 128 The Economic Analysis should be broad to include impacts to not only Clean Water Act programs but also state and 129 local programs. Below are programs from a local government perspective that should be considered in the Economic 130 Analysis: 131 Source Water Protection-There is a general consensus that protecting the nation's water resources is important to 132 local government. Local governments realize that poor 'water quality affects the health and economies of their Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00003 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 133 communities, disproportionaiiv impacting those that are low-income. Local governments also realize that protecting 134 source water bodies like rivers, lakes, streams, wetlands and groundwater is paramount to protecting drinking water. 135 (LG.AC 2016 Drinking Water Report). Under the Safe Drinking Water Act, Source Water Assessments (SWAs) 136 provide information about sources of drinking water used by public water systems. SWAs are studies or reports 137 developed by states to help local governments, water utilities, and others protect sources of drinking 'water and are 138 done differently by each state. Each program is adapted to a state's 'water resources and drinking water needs. To 139 protect source water, the tools of the Safe Drinking Water Act (SDWA) and Clean Wafer Act (CWA) programs are 140 utilized to protect source water. Additional protection tools can be found in other ERA programs and various 141 agricultural programs. Changes made to CWA programs may greatly impact state and local source 'water protection 142 programs and plans. This could have significant economic impacts to local communities. For example, in Flint, 143 Michigan shifting the source water to the Detroit River water resulted in significant deterioration of 'water quality that 144 produced sianificant public health and economic problems, in Portland. Oregwiwvhere source water is protected it 145 results in less cost to the rate payers by having Clean Water Protection p r ip lif s in place. It is unclear how changes 146 in a revised rule will impact streams and tributaries that impact local sources of drinking water, if adequate CAVA 147 protections are not in place it could have significant negative econom illitpiets to water utilities. This costs are likely 148 be transferred to local governments and rate payers, it is also unq|||i||bW l|i||pnay impact the prevalence of toxic 149 algal blooms which have proved very costly on drinking water. . 150 CWA Section 402 - The NPDES permits and discbargep||ii!::hoid significant e c o llllq issues for local 151 governments in regard to WOTUS ier wastewater t r e a t | | | i| sstormwater management, CSOs, and application of 152 pesticides (used for vector control). WOTUS IN 2015 baddasen a concern about expandedsfederal jurisdiction to 153 previously unregulated streams, ditches, and wetlands, id o fffllj; the finaUMe includes exclusions beneficial for 154 those that operate M84s, The rule includes key exclusions th il| |y b%|!|pi:;:for localities. The rule retains a 155 ionq-standing exclusion for "waste treatment systems," such as I f lliy iiip b n d s and lagoons it aiso adds new 156 exclusions for artificially created ponds, settling basins. co n stru ctio fii|||:ri'iining excavation pits, and wastewater 157 recyclina structures. Lastly, the rule finally co tf^ta ftte ll-u n d e rsto o A p te cip le that the CWA does not apply to 158 gioundwater. For MS4s, the primary concern a f l l f tfilillliA a s been tblti|puid potentially be used 159 as parts of an MS4 - including stormwater drainage ditches) MPs, and gri|||gfrastructure projects - are "waters of 160 the US," That could mean, for example, that NPDES permit co vsra |i::yvould ifljtlquired to discharge into an MS4 or 161 that a CWA 404 permit would be required to do maintenance on a 1, The final rule includes, for the first time, a 162 regulatory exclusion for "Stormwater control features constructed tb cblweyp treat, or store stormwater that are 163 created in dry land." However, the exclusion does not apply to ditches that were created in previously 164 existing streams or 'wetlands,The rule's exclusions are important because they take precedence over the rule's 165 jurisdictional tests. For example, a stormwater conveyance ditch that qualifies for the stormwater exclusion would be 166 excluded from CWA jurisdiction even if the ditch 'would be considered a jurisdictional water under the tributary test, 167 F u rth e rm o rq yj|||il|||sa ko f EPA and the Corps' previous position, the agencies stated that they do not retain any 168 discretioa:^^fcffi*O iV A jurisdiction to water features that qualify for one of the rule's exclusions. It is unclear how a 169 re v is e d llilip ill impact Section 402 permits, Potentially, Section 402 permits could prove more costly than Section 170 404 p e rffiiilg at the local levei in regard to stormwater and wastewater treatment. 171 172 Pesticide Applications in W a te rb lllh e U .S )A l|||:q 2011, pesticide applications into, over, or near WOTUS are 173 permitted under the CWA National P ilila n t DiscnUfe Elimination System tNPDES1 Program due to a 200S U.S. 174 Court of Appeals for the Sixth Circuit r l| l| j. Agricultural producers, pesticide applicators and local governments have 175 opposed or expressed concerns on thij|gjrnitting largely on the grounds that it is duplicative and unnecessary to 176 regulate pesticides applied in accordance 'with the Federal insecticide, Fungicide, and Rodenticide Act 177 (FiFRA), Local governments-.mainiy coifhty governments are largely responsible for vector control programs to 178 manage mosquitos and spraying of insecticides to reduce vectors and public health concerns. Although the CWR 179 would have arguably expanded the scope of the waters requiring pesticide permitting, the replacement or elimination 180 of the CWR will not end NPDES requirements for pesticides however it may provide opportunity to clarify what 181 discharge waters are subject to federal versus state permits. 182 Section 303 (d)- Currently, The National Rivers and Streams Assessment (NRSA) 2008-2009 report provides 183 information on the biological and recreational condition of the nation's rivers and streams and the key stressors that 184 affect them. The Report indicated that about half of our nation's streams (some of which provide sources of drinking 185 water) have poor water quality. Poorer water quality could result in sianificant treatment costs such as Impaired Water 186 sites under CWA Section 303(d) and transfer the costs to local governments, in addition, communities that rely on 187 these water bodies for drinking water and source water the cost will ultimately be transferred to rate payers having a Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00004 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 188 significant economic impact to iocai governments, it is uncertain how changes in a revised WOTUS rule vviil impact 189 on local governments and their local efforts to improve access to clean water, 190 Section 31S and Other Grants-it is uncertain as to how the determination of WOTUS wiii impact grants to states and 191 communities. A grant may be given a priority if it given to protect a Water of the U S, it is uncertain how that would 192 impact states and communities 193 The Coastal Zone Management Act (CZMA'i of 1972 provides for the management of the nation's coastal resources. 194 including the Great Lakes. The aoal is to "preserve, protect, develop, arid where possible, to restore or enhance the 195 resources of the nation's coastal zone." it is administered by the National Oceanic and Atmospheric Administration 196 (NOAA), The National Coastal Zone Management Program aims to balance competing iand and water issues through 197 state and territorial coastal management programs through state and locally managed Coastal Zone permits. These 198 CZMA Programs work in tandem with the many tools of the CWA including Section 404. The Economic Analysis 199 should include an assessment of the economic impact to coastal resgiigiiiand wetlands, including an economic 200 impact anaiysis to water dependent industries such as fishery (sal:|f||phi)||foed industry), tourism, and other 201 water dependent industries. For example, in the Puget Sound regionTfish halcfiery and harvest operations reeled in 202 about $18 million to tribal personal income. In areas where the average annual per capita income is around $10,000, 203 a decline in the availability of healthy fish can significantly impact the economies of these communities. (L.GAC 204 Drinking Water Report). An example, the LGAC workedsWilhTs evaluating the impactssctthe Deepwater Horizon Spill 205 to local governments in the Gulf of Mexico, The Gulf fis l|||||n d tourism industries produce $3.5 - $4.5 billion a year. 206 Without adequate federal CWA authorities in place other potential impacts could occur havpisdeleterious impacts to 207 local economies and natural resources, 208 209 > Question 5- What additional information can you provide from a local government 210 perspective that EPA should be aware of? 211 212 DEFINITIONS (LGAC 2014 Report) 213 Background: 214 The LGACfully supports and endorses EPA's effortsfo r clarification o f Waters o f the United States. 215 These improvements are long overdue. The LGAC highlights clarity in definitions is criticalfor the 216 revised rule. While the LGAC does not have specific language recommendationsfo r all o f the 217 definitions o f a revised rule, the LGAC offers thefolio wing for the EPA to consider including, 218 redefining or clarifying in the rule. 219 220 These recommendationsfor definitions are broughtforward to consider in the 2017 WOTUS Rule. 221 222 Recommendations: 223 4 The LGAC recommends that EPA should, where appropriate, use definitions that are used 224 consistently across ail o f thefederal agencies, e.g. EPA, Army Corps o f Engineers, Federal 225 Emergency Managem ent Agency, Department o fAgriculture, U.S. Geological Survey and U.S. 226 Forest Services. 227 228 4 The LGAC recommends that an Interagency Workgroup be tasked to develop a glossary o f 229 definitions and publish this Interagency Glossary o f Terms, following public review. 230 231 4 The LGAC recommends that definitions be practical, written in plain English, and be 232 enforceable. 233 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00005 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 j 234 4 The LGAC recommends that narrative descriptions with examples be provided to augment the 235 definitions, as well as pictures, where this could achieve greater clarity. 236 237 4 The LGAC recommends that the public have the opportunity to comment on these proposed 238 definitions. 239 240 4 The LGAC recommends that thefollowing terms, among others, be defined concisely and with 241 clarity: 'other waters', 'significant nexus', 'adjacent' and 'upland'. Furthermore, the LGAC 242 recommends 'upland' be defined based upon exclusion o f what it is not. 243 244 4 The LGAC recommends that EPA consider thefollowing when defining these terms: 245 246 Wetlands 247 4 The LGAC recommends that the current definition o f wetlands be used: "areas that are inundated 248 or saturated by surface or ground water at afrequency and duration sufficient to support and that 249 under normal circumstances do support a prevalence of vegetation typically adaptedfor life in 250 saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." 251 252 Floodplains 253 4 The LGAC recommends using the definition of the Interagency Taskforce on Floodplains254 "Floodplains include low-lying areas adjacent to and the water bodies of streams, rivers, lakes, 255 estuaries, and coastal zones that are inundated or may become inundated as a result o f changing 256 conditions." The definition o ffloodplains should take into account movement offlood lines due to 257 account extreme weather events. 258 259 Riparian area 260 4 The LGAC recommends that riparian areas be defined as "an area bordering a water where surface 261 or subsurface hydrology directly influence the ecological processes and plant and animal community 262 structure in that area. Riparian areas are transitional areas between aquatic and terrestrial 263 ecosystems that influence the exchange of energy and materials between those ecosystems." 264 265 Floodway 266 4 The LGAC recommends that floodway' be defined as aflood course within the banks or within a 267 canyon where water would be expected toflow under normal circumstances. 268 269 Ditches 270 4 The LGAC recommends a clear definition of'ditch'be provided in the proposed rule. 271 4 The LGAC recommends thefollowing Google Dictionary definition of 'ditch': a "narrow channel dug 212 in the ground typically usedfor drainage". Examples listed are trench, croft, channel, dike, drain, 273 watercourse conduits. 274 275 Tributaries 276 4 The LGAC recommends a clear definition of'tributaries' be included in the proposed rule using 277 clarifying examples. 278 4 The proposed rule refers to a term "rain dependent stream". The LGAC recommends that this term 279 be defined and an example of a stream that is not rain dependent be provided. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00006 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 280 Significant Nexus 281 4 The LGAC regards this to be the most important definition contained within the proposed rule and 282 at the heart ofjurisprudence in the issue of Waters of the U.S. It is uncertain how 'significant' nexus 283 would be interpreted so the Committee recommends EPA describe significant nexus such that it is in 284 plain English, with specific terms and examples. 285 286 4 The LGAC recommends that the agency consider all three parameters o f water quality in this 287 determination so that "the chemical, physical, and biological integrity of water" be the criteria used 288 for 'significant nexus'. Likewise, the LGAC does not agree that only one of thesefeatures be used as the 289 benchmark, but that all three parameters o f chemical, physical and biological integrity of a water 290 body are all equally important. 291 292 4 The LGAC does not agree with the term "significant effect" and also recommends language of 293 "insignificant or speculative" be deleted. 294 295 4 The LGAC is aware that the EPA. charged the Science Advisory Board vfffflferpreting significant 296 nexus and connectivity based on the best sciemeWIMable. The LGAC is unceffilBas to how the revised 297 rule will make benefit o f these important and critici^ ^ B nitions'^Bwever. the findings may be 298 important to factor into a revised rule. f^EWRlTTEN j l^ ^ f i ^ ^ ^ ^ .4 Report} 299 300 [Representative Tom Sloan comments] 302 303 304 a. 305 306 b. 307 308 309 310 311 C. 312 313 314 d. 315 316 317 318 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00007 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 319 e. 320 321 322 323 f, 324 325 326 327 328 a. 329 330 331 332 b. 333 334 335 338 > Question 6- Are there other issues the agencies should consider which would help ease the 339 regulatory burden for implementation of WOTUS for state,local and tribal government? 340 343 for the support o f local governments. Clear boundaries provide for more equitable and predictable 344 permitting and also fo r better protection o f our water resources. (LGAC 2014 Report) 345 346 The LGAC concludes, based upon the testimony that we heard and the analysis o f the Committee, 347 that a revised rule can significantly clarify the historic confusion and uncertainty resulting from 348 conflicting case law and Supreme Court decisions. (LGAC 2014 Report) 349 350 The LGAC has heard a broad level o f concernsfrom municipal associations and county 351 governments concerning MS4s. The LGAC is uncertain o f what the regulatory impact will be on 352 MS4s as the proposed rule is currently written. MS4s and green infrastructure are foundational to 353 the continuum o f care that is being implemented at the local level to improve water quality. 354 (LGAC2014 Report) 355 356 Much of the uncertainty of MS4s, stormwater and green infrastructure is centered on whether 357 these collection systems or portions of the systems will be required to meet State Water 358 Quality Standards (WQS) under Section 303(d) or potentially a total maximum daily load Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00008 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 359 (TMDL) because they will now he considered a "water of the United States." WQS and TMDL 360 were not designed for this application so application within a collection system seems 361 improper. WQS define goals for a waterbody by designating its uses and setting criteria to 362 protect those uses, but there is no established designated use for MS4s. Without a designated 363 use, the default required designated use is as "fishabie/swimmable," unless the state 364 demonstrates that it is not attainable for one of six particular reasons, none of which is because 365 the waters serve as storm-water conveyances. A pending EPA proposed rule on water quality 366 standards could make use designation analyses more stringent (i,e,, by requiring a "highest. 367 attainable use" presumption). Also, if it is not deemed jurisdicfiijial under Section 404 it will 368 likely need a Section 402 permit and subject to WQS. (Goodjj|liietter) 369 370 There could be potential impacts to wastewater systeij|il|lii|||p NPDES permitting related to 371 these systems. Because of the exclusion language, tjie'llfincy aid not seem to analyze the 372 impact to wastewater systems but some cities have raised questions whether some part of 373 combined sewer systems or other aspects of a.... water treatment systems would be 374 considered within the jurisdiction of the EPAtilled upon the WC3TUS fii|||Goodm an Letter) 375 376 Many communities already heavilyfocus on water quality programs and projects; these 377 communities should be encouraged andincentivized to do more. A revised rule should recognize 378 that much o f the action towards cleaner water happens at the local level. High performing local 379 agencies should be noted asfollowing best practices and afforded a relaxed regulatory 380 environment in those circumstances where water quality objectives are met and exceeded. (LGAC 381 2014 Report) 382 ....................... ................... 383 The LGAC believes that making jurisdiction calls o f what is exempt and what is not in a timely 384 fashion is critical to protecting water resources and providing predictability to state and local 385 governments. The LGAC believes that easily accessible predictive tools need to be developed and 386 utilized to speed this process. (LGAC 2014 Report) 387 388 Recommendations: 389 4 The LGAC recommends that, the usiWiMate General permits he expanded to reduce the regulatory 390 burden and also he used for smaller proiecflMth minimal impacts, it could also he used to address 391 regional and stdfijiippcific activities and types of water bodies. Under Section 404(e) of the Clean Water 392 Act, the U.S. Army Q ll|s of Engineers can issue generai permits to authorize activities that have minimai 393 individual and cumuiaWSmdversi S S/ironmentai effects. Nationwide permits can authorize a wide 394 variety of activities such dlilin hiili5buoys, residential developments, utility lines, road crossings, mining 395 activities, wetland and streariffistoration activities, and commercial shellfish aquaculture activities. Ail 396 permits, whether individual or general, must be reissued every five years. 397 398 4 The LGAC recommends that EPA clearly articulate jurisdictional waters in an outreach plan 399 which, in plain English, describes these areas with a clear statement o f why they are in need o f 400 protection. This will provide local governments with more certainty and assurance in 401 communicating the rule to their communities. (LGAC 2014 Report) 402 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00009 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 j 403 4 The LGAC highly recommends explicitly specifying when ditches would be considered 404 jurisdictional. (LGAC 2014 Report) 405 406 4 The LGAC recommends that manmade conveyance components ofMS4s be exemptfrom 407 Waters o f the United States. This includes manmade green infrastructure, roads, pipes, manmade 408 gutters, manmade ditches, manmade drains, and manmade ponds. (LGAC 2014 Report) 409 410 4 The LGAC recommends that natural conveyance components ofMS4s are included in Waters 411 o f the United States. This includes natural wetlands and associated modifications to natural 412 wetlands. (LGAC 2014 Report) 413 414 4 The LGAC recommends that green infrastructure projects be exemptfrom WOTUS and that 415 they should be incentivized to protect water resources.. (LGAC 2014 Report) 416 417 4 The LGAC recommends that there be some criteria which exempt certain activities in Waters 418 o f the U.S.for public safety and hazards. This is particularly critical in flood prone areas andfor 419 disadvantaged communities infloodways that may need to have emergency relief quickly and 420 rapidly. (LGAC2014 Report) 421 422 4 The LGAC recommends that EPA work to identify regional areas where jurisdictional 423 determinations could be problematic in terms o fsea level rise and where groundwater and 424 surface flow intermix. For example, it is unclear how the state o f Florida juxtaposed nearly at sea 425 level, will be categorized, in this specific region, conceivably all waters could potentially be 426 jurisdictional. The LGAC recommends that specific guidance be developed to address and classify 427 these areas with region-specific criteria used to assess this determination. (LGAC 2014 Report) 428 429 4 The LGAC recommends that EPA, working with the Corps o f Engineers, develop a toolfo r use 430 by local governments which a permittee can use to assess their own jurisdictional status. For 431 example, this could involve a simple categorical, printable questionnaire in a decision tree 432 framework with questions aimed with an outcome o f `yes', `no' or `maybe-callyour local Corps 433 representative'. The LGAC recommends this method be computerized and developed as a 434 smartphone application which yields a simple predictive outcome. (LGAC 2014 Report) 435 436 4 The LGAC recommends that EPA work directly with stormwater associations to provide 437 guidance to best address MS4s, stormwater controls, and theirjurisdictional determinations. 438 (LGAC2014 Report) 439 440 4 The LGAC recommends that EPA look to stormwater experts and the practical advice that 441 stormwater professionals can lend to thefinal rule the EPA is considering in Waters o f the U.S. 442 (LGAC2014 Report) 443 444 4 The LGAC recommends addressing how mining impoundments or borrow pits will be 445 addressed within jurisdiction o f WOTUS. (LGAC 2014 Report) 446 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00010 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 j 447 4 The LGAC recommends that regional and local technical manuals as well as other 448 communication tools (e.g. checklists, smartphone apps, etc.) that accountfo r geographic 449 differences in each EPA region be developed to assist with jurisdictional calls. (LGAC 2014 Report) 450 451 4 The LGAC recommends that EPA provide planning maps at the state level which could be used 452 as a planning tool to ascertain jurisdictional probability with high certainty. Such mapping would 453 include the Hydrologic Unit Codes (HUC) fo r waterways. (It is presumed that all waterways with a 454 designation ofHUC-12 or less will be included in WOTUS.) (LGAC 2014 Report) 455 456 IM P L E M E N T A T IO N 457 458 B a ckg ro u n d 459 The LGAC heard a strong concern regarding implementation, especiallyfrom local governments. 460 Several local agencies reported uncertainty in interpretation as well as uncertainty in time and 461 cost to conclude the permit process. The rule language must be consistently interpreted by all 462 parties including the EPA, the US Army Corps o f Engineers and local agencies. The rule should 463 stipulate responsiveness o f permitting agencies. Otherwise, the LGAC is concerned that a revised 464 rule couldfurther delay permits at the local level. (LGAC 2014 Report) 465 466 Recom m endations: 467 4 The LGAC recommends that the rule stipulate time frames for permit review andjurisdictional 468 determinations. Time frames such as 60 to 90 days to obtain a permit would be well-received at 469 the local level. (LGAC 2014 Report) 470 471 4 The LGAC recommends that EPA more clearly identify how Preliminary lurisdictional 472 Determinations would be processed to avoid unnecessary permit delays. (Goodman Letter) 473 474 4 The LGAC recommends that EPA Administrator work with the Chiefo f the US Army Corps o f 475 Engineers to determ ine a pro cess to reduce the issue o f permitting delays o fSection 404 permits. 476 These delays are a significant and a costly issuefo r local governments. (LGAC 2014 Report) 477 478 4 The LGAC recommends that state agency staff be utilized to make jurisdictional calls and 479 work in cooperation with local districts with subject matter expertise such as county-based 480 Conservation Districts or water management districts (e.g. Florida Water Management District). 481 These local agencies can work together with the Corps to streamline permitting. (LGAC 2014 482 Report) 483 484 4 The LGAC recommends that EPA regionalize wetlands delineation manuals to take into 485 account regional and local variability o f vegetation, hydromorphology and hydroperiods. (LGAC 486 2014 Report) 487 Recommendation: The LGAC recommends that State agencies be delegated the authority to make jurisdictional 488 determinations. These determinations could be certified by the EPA and Corps District staff. Potentially, private sector 489 firms and/or individuals could be certified to make these determinations. This could relieve overburdened federal 490 agencies and accelerate the determination/permit process. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00011 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 491 Recommendation: ERA and the Corps should encourage and provide incentives for States and Tribes to identify 492 and protect significant state or unique waters such as sources for drinking water to protect. 493 Recommendation: ERA and the Corps should provide mapping of jurisdictional waters (8-Digit HUC). it should also 494 be accessible by zip code and available online, 495 4 The LGAC recommends that EPA workfurther with the Committee to develop a cohesive 496 strategy to address local tools for stream and tributary protection so that it does not interfere 497 with local governments protecting and maintaining water resources for its citizens and 498 communities. For example, many local governments have zoning ordinances and coastal 499 management plans that are protective o fstreams, riparian areas, and sensitive wetland areas. It 500 is unclear how a revised rule in its current state will affect our ability at the local level to protect 501 our significant ecological areas. (LGAC 2014 Report) 502 503 4 The EPA should work with local communities to utilize the regulatory tools that the Clean Water Act 504 (CWA) and the Safe Drinking Water Act (SDWA) provide in order to protect source water, especiallyfor 505 low-income, minority, rural and tribal communities where this threat remains. (LGAC Drinking Water 506 Report 2016) 507 508 4 The LGAC strongly recommends that the EPA continue to explore how the SDWA and the CWA could 509 be coordinated to better protect source water and our nation's water resources. In addition, the LGAC 510 recommends that the EPA coordinate a Memorandum of Agreement with the U.S. Department of 511 Agriculture's Natural Resources Conservation Service (NRCS) to explore ways to reduce agricultural 512 runoff and improve soil health. (LGAC Drinking Water Report 2016) 513 514 515 S T A TE ASSUM PTIO N O F SECTIO N 404 516 517 Background 518 Under current regulations, states and some tribes may seek delegation to implement CWA 404 519 which governs dredge andfill activities in wetlands and other waters. This CWA assumption 520 allows a state or tribe to regulate those waters and to take jurisdictional responsibility to 521 condition, approve or deny dredge and fill permits in lieu o f the federal Section 404 program 522 administered by the Corps and EPA. The state or tribal program must be approved by the EPA and 523 the Corps ofEngiiWfim, States a | | | r ib e s play a significant role in im plem en t CWA Section 404 524 Program through a s llltg tio n a l l l l o fully integrated and comprehensive w ater program 525 addressing the fu ll r a n d l llf c il iil i. trib a l, and CWA requirem ents. A ssum ption allows fo r 526 fle xib ility , less tim e c o n s tr lilfe and the a b ility to integrate state and local w a te r q u a lity 527 objectives. 528 529 The State o f Michigan has received delegation authority and the LGAC was briefed on their 530 program. Under the Michigan program, the permitting process is more streamlined and has 531 incorporated other state statutory programs like CWA 401 certifications, dam safety and other 532 state regulatory programs. 1 The average time o f the permitting process is 21 days. 533 534 1 "Wetlands Protection." Michigan Department of Environmental Quality. W W W . mi.gOv/wetlandS. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00012 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 535 536 Based on the Michigan example, the LGAC believes that states may more effectively administer the 537 Section 404 program, especially in addressing regional issues. States can more effectively interact 538 with local governments, businesses, agriculture and private landowners. (LGAC 2014 Report) 539 540 541 Recommendations: 542 4 The LGAC believes that State Assumed GWA and tribal-led programs may provide substantial 543 cost-savings in time and money and should be investigatedfurther. (LGAC 2014 Report) 544 545 4 The LGAC recommends that guidance be developed to f a i l l i f f e State Assumption of the Section 546 404 program. 547 548 4 In orderfor state assumed programs to be successful, adequate resources must be made 549 available and comparable water quality protections must be adopted by the state or tribal 550 government. Despite these perceived barriers, the LGAC believes this is a highly worthwhile 551 approach. Incentivizing the delegation program could achieve a strong return on 552 investment.(LGAC 2014 Report) 553 554 4Local agencies may also be more receptive to the rule if there are state-run programs which are 555 more responsive to local and regional issues. (LGAC 2014 Report) 556 557 4 The LGAC strongly suggests federal incentives fo r States and Tribes to assume CWA Section 404 558 program. These federal incentives should also provide technical, financial and staffing resources to 559 assume the CWA 404 program. (LGAC 2014 Report) 560 561 562 E N FO R C E M E N T 563 564 Background 565 The LGAC believes that enforcement will be important in implementing the CWA programs to 566 follow the proposed rule. It is not possible to ascertain the impacts o f enforcement on local 567 governments based on the proposed rule as written. The LGAC also believes that clarified 568 definitions contained within afinal rule will be critical to effective and equitable enforcement o f 569 the rule. (LGAC 2014 Report) 570 571 Recommendations 572 4 The LGAC recommends thatflexibility is included within the regulatory context so that 573 conservation practices can be considered nationwide and be consistent, particularly on 574 agricultural lands. (LGAC2014 Report) 575 576 4 The EPA should work collaboratively with state regulators to reduce punitive approaches and 577 increase facilitative solutions. Generally, communities facing fines and citations are already struggling 578 with compliance. Fines rarely increase water quality; fines only reduce the local resources available to 579 achieve compliance. A collaborative approach can be most effective in reaching water quality goals. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00013 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 580 (LGAC Drinking Water Report 2016) 581 582 4 The LGAC recommends that EPA work with state and local governments once the final rule is 583 developed regarding enforcement options. (LGAC2014 Report) 584 585 LOCAL SOLUTIONS -INTEGRATED PLANNING 586 587 Background 588 The LGAC believes that the CWA has had tremendously positive impacts on the rivers and streams 589 o f the United States which in turn has led to economic prosperity and well-being fo r our nation's 590 communities. Communities and local governments are spending millions o f dollars to improve our 591 waterways and drinking water supplies. Some states even have more protective water standards 592 than those required byfederal law. The LGAC noticed a generalfeeling o f distrust that the 2015 593 rule generated. Further clarity on definitions, jurisdiction and exemptions shouldfurther aid 594 Integrated Planning. However, it is uncertain how afinal rule will factor in Integrated Planning 595 efforts in general. Furthermore, there is a great deal o f uncertainty how CWA 404 and the rule 596 will impact local ordinances and how it can be integrated into state, tribal and local water quality 597 plans. (LGAC 2014 Report) 598 599 600 Recommendations: 601 4 The LGAC recommends that EPA work with cities and communities on Integrated Water 602 Quality Planning that will incorporate all o f the Clean Water Act provisions into local plans. This 603 planning process is already ongoing and the LGAC looks forward to these proactive approaches to 604 address water quality concerns while providing green infrastructure and multi-use amenities to 605 serve our public and create jobs. (LGAC 2014 Report) 606 ..................... 607 4 The LGAC recommends that EPA incentivize local, tribal and state agencies to engage in 608 Integrated Water Quality Planning and develop polices, programs and projects thatfurther the 609 goals o f the Clean Water Act. The rule should not in any way discourage local efforts to improve 610 water quality through projects and programs. (LGAC 2014 Report) 611 612 613 > Question 7- What should the agencies consider in communicating the final rule to state, local 614 and tribal governments to help them fully understand these regulatory changes and 615 implementing them efficiently and most cost-effectively? 616 Background 617 618 The L G A C believes that clear communication and outreach needs to happen at every level o f 619 government once thefinal rule is developed. There are many misconceptions and uncertainties 620 regarding EPA, the Army Corps o fEngineers, and the rule's impact on CWA programs. 621 622 The LGAC, consistent with concerns heard throughout the outreach process, noted the mixed 623 messages relating to the economic analysis. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00014 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 624 625 The L G A C recommends that the EPA share the L G A C findings and recommendations with the state 626 environmental commissioners, state agricultural directors, state water directors, and other state 627 officials. (LGAC Water Report 2014) 628 629 630 Recommendations: 631 632 4 The L G A C recommends that a Fact Sheet (one-page) he developed laying out the clear 633 messaging o f the revised rule. It should also have graphics and a side hy side comparison o fwhat the 634 rule currently is and what the revised rule proposes should he developed and included to enhance 635 public understanding o f the ride. (LGAC Water Report 2014). 636 637 4 The L G A C believes it is important that EPA is aware o f the potential for mixed messages in their 638 communication with local agencies regarding the economic impact o f the proposed ride. Based on 639 the Workgroup's 2014field meetings, local agencies were skeptical o fEPA's strong statement that 640 the proposed rule does not change the definition o f the Waters o f the U S. Although this statement 641 may befactually correct, what will likely occur in thefield is that local agencies will experience a 642 permitting environment in direct contrast to this statement, asjurisdictional assertion is expected to 643 increase. It is important that the EPA and the l S Army Corps o f Engineers do not understate the 644 impact the rule may have on localjurisdictions. And the economic analysis should include all Clean 645 WaterAct programs. (LGAC Water RepoffMO 1f f l -- ,,,,,,.. 646 647 47he LGAC recommendifBiilBlhdlPA contiflM, to e ^ | | | l | ! l i | r ? p r d :ip 7 te communication with 648 local governments, q |i|||if'a s Eg.^ ^ f u k u r a t ^ ^ ^ ^ 0 'c o r f^ ^ ^ ^ e s with respect to the Waters o f 649 the United States. 650 651 4The J.G.4C recommends that EPA develop Pact Sheets So communicate the proposed changes in the 652 LOTUS rule designed specificallyfo r locally elected officials. 653 654 4The EPA should work with State Municipal Leagues and other intergovernmental information to 655 distribute communication materials for local governments. (LGAC Drinking Water Report 2016) 656 657 4 In its annual or biannual meetings with State Environmental Commissioners, State Public Health 658 Directors and State Agricultural Directors, the EPA should convene a special session on Waters of the U.S. 659 and ways to assist local governments, EJ communities and rural communities. (LGAC Drinking Water 660 Report 2016) 661 662 663 664 > Question 8- The Workgroup will also develop recommendations on how the EPA can better 665 work with local governments and engage local governments on issues such as: What 666 additional regulatory issues could be revised or clarified to more effectively to help local 667 governments understand how this rule would apply? Are there additional policy discussions 668 that could help address local questions about implementation, in agricultural and rural small Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00015 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 669 communities? Are there other considerations such as ditch maintenance, stormwater 670 management or green infrastructure? 671 8.a. What additional regulatory issues could be revised or clarified to more effectively to help 672 local governments understand how this rule would apply? 673 674 4The LGAC recommends that ERA should consider the impacts of a revised rule on NPDES and 675 Wastewater systems, (Goodman Letter). 676 677 4 The LGAC recommends that EPA consider a bright-line on 'other waters' to provide more 678 clarity on what isjurisdictional under the CWA. For example, it would be well-advised that EPA 679 determine with accuracy what areas are considered to be ecologically significant and to list these 680 areas and provide examples. (LGAC 2014 Report) 681 682 683 8.b. Are there additional policy discussions that could help address local questions about 684 implementation, in agricultural and rural small communities? 685 686 687 Background 688 689 The Small Community Advisory Subcommittee (SCAS) o f the LGAC investigated in greater 690 depth the agricultural related issues to the WOTUs rule. The SCAS had some observations from the 691 testimony received. Also, several o f the SCAS Members are also agricultural producers and work 692 for the Conservation Districts. Due to lack o f clear definitions and the Science Advisory Board's 693 Report which contained even more uncertainty on connectivity and how that will be applied. 694 695 Agricultural issues remain an area where there is a great deal o f uncertainty and confusion 696 regarding WOTUS.. The SCAS believes that the agricultural community presents the greatest 697 challenge but also offers the greatest receptivity to recognizing the importance o f conservation 698 and protection o f our natural resources. Agriculture is a water-dependent business and cannot 699 flourish without adequate supplies o f clean and safe water. 700 701 702 Recommendations: (LGAC2014 Report) 703 4 The LGAC recommends that EPA develop a "rural strategy" which would address the issue o f 704 Waters o f the U.S. on agricultural lands and rural communities. This rural strategy could provide 705 more comprehensive planning and resources to address thefull range o f water quality and 706 community issues associated with rural America and disadvantaged small comm unities. 707 708 4 The LGAC recommends that there be consistency between Natural Resources Conservation 709 Services (NRCS) and EPA on interpretation o f normalfarming practices and that a clear definition 710 o f normalfarming practices be included. Furthermore, the LGAC recommends a manual o f 711 agricultural exemptions be developed and published. 712 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00016 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 j 713 4 The LGAC recommends that thejurisdiction o ffarm ponds, artificial lakes and ponds created 714 by excavation and/or diking dry landfor purposes o f stock watering, irrigation, settling basins or 715 rice production be excludedfrom WOTUS. 716 717 4 The LGAC recommends thatfloodplains be established at a level o f 50 year, 100 year and 500 718 years fo r agricultural purposes. 719 720 4 The LGAC was made aware o f the State o f Tennessee's Water Quality program, and the LGAC 721 recommends that the EPA investigate this approach in regard tojurisdictional waters on 722 agricultural lands. 723 724 4 The LGAC recommends that EPA facilitate better working relationships with the Corps, 725 especially in regard to agricultural lands. 726 727 4 The LGAC recommends that dams and drainages designedfo r fire prevention be exemptfrom 728 WOTUS. 729 730 4 The LGAC recommends that settling ponds and basins be determined on a regional case by 731 case specific basis. 732 733 4 The LGAC recommends increasing the boundaries o f riparian areas in the Conservation 734 Reserve program so that they enhance protection o f waters. 735 736 4 The LGAC recommends that EPA continue to work with NRCS to incentivize farming practices 737 that improve water quality. 738 739 Prior Converted Croplands (Discussed by Je ff Witte) 740 741 B a c k g i i l l i l : ' ....... 742 The Clean Water Rule excludes Prior Converted Croplands (PCC) from the definition of "waters of the United States." 743 (existing since 1992). The Rule also provides that even if another federal agency has deemed land to be PCC, the 744 final authority regarding CWA jurisdiction remains with the EPA, Other provisions such as Swampbuster also 745 incorporates a PCC exception but are administered by the USDA under the Food Security Act of 198S. The Act 746 regulates federal benefits for farmers and includes provisions designed to discourage farming on converted wetlands. 747 Under the Act, farmers who have altered a wetland after November 28, 1990, to make crop production possible are 748 generally prohibited from receiving USDA-FSA-administereci commodity, disaster, and conservation program 749 benefits. Likewise, farmers 'who plant crops on wetlands converted between December 23, 1985, and November 28, 750 1S90, are ineligible for program payments. Generally, drainage systems and other conversions in place before 751 December 23, 1985, may continue in their existing form. The 2014 Farm Bill also reinstated a requirement that 752 farmers must comply with Swampbuster provisions to receive crop insurance premium assistance beginning in 2015. 753 The NRCS is responsible for making wetland determinations for purposes of USDA farm program eligibility. Once a 754 certified wetlands determination is made (and given to the farmer via form NRCS-CP.A-028), it is binding on the 755 property. All determinations made after July 3, 1996, are automatically deemed "certified." Determinations made prior 756 to that date may be considered certified if they meet certain conditions. If a certified wetlands determination exists, 757 the NRCS may not issue a new determination, absent a request by the landowner and (1) a determination that 758 natural changes have occurred to the topography or (2) an acknowledgment by NRCS that an error exists in the 759 current report, it is uncertain how changes in the WOTUS rule will change the dates for PCC or Swampbuster 760 provisions Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00017 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 761 Recommendation: A process for determining Prior Converted Croplands should be established with the new 762 changes to the WOTUS rule. For example, what date should the PCC be referred to. 763 Recommendation: On agricultural lands, the Department of Agriculture be given authority to make jurisdictional 764 determinations. (LGAC 2014 Report) 765 Recommendations: 766 4 The LGAC recommends that normal agricultural practices be defined more effectively to 767 achieve the desired results and to be accepted by the agricultural community. Normal farming 768 practices are not limited to those listed and will change with advances in science and technology. 769 770 4 There needs to be consistency between NRCS, EPA and other agencies involved in these issues. 771 The SCAS believes that a glossary defining what agricultural exemptions are in a glossary will be 772 helpful. Specifically, the LGAC has heard a great deal o f concern from Northern Minnesota where 773 there are non-tiled drainage ditches and also from agricultural communities in Georgia. 774 775 4 The LGAC recommends more effective outreach to agricultural communities and small rural 776 communities on this proposed rule. Ill 778 8.c. Are there o th e r considerations such as ditch m aintenance, s to rm w a te r m anagem ent or green 779 infrastructure? 780 Background 781 Rule language should n d l i l f e of11:4n c iu s Io n H id c r i i l l l f e l i l i e m e d th a t jurisdictional calls wili be 782 dependent upon a e e n llllid g m e n ts " ill ,discretiohlii i l l lh11jsIons. f lP t r it e r ia need to be clear enough 783 that cities do not have tdfS lher g u e s fll a p p lica tio h |l|:a rule or wait for the agency to interpret a rule 784 that creates uncertainty. It f liiw o t k iilh ile r , cities t o l l l v on agency judgments and discretion for 785 exdusions.,::;lil i i li! li l i ei.ncern l i ill iA vf f l i l hi i iide of i l i trequests the agencies wiil be forced to 786 a ddressolllilhe tim e ffh llljp f th e 'l|ljic ie s re s p 8 ill||iy e :h::any uncertainty of a new ruie. Cities cannot 787 be fa c d tiillth significant delays to address critical storm-water infrastructure while waiting for agency 788 action. Cifil l lrthoulrt be provifil|i!|g:Sarity agencies so that they can effectively plan and budget for 789 the o pe ra tia h lllif. maintenance:il i f h e s to h il|||a te r collection systems w ithout the uncertainty of the 790 discretion of t h ille n d e s and w h llltl: will receive that agency judgment. In addition, w ithout a specific 791 exemption for M S lU l t ems incluc||i:drains, roads, pipes, curbs, gutters, ditches and other components 792 that channel runoff, allHWj as noiilHiiS4 storm-water systems and features/components, EPA and Army 793 Corps open the door for lllila t id lllif d citizen suits that could determine that they are considered a 794 "Waters of the U.5." and t h ii|| p iu b je c t to Section 404 permitting and state Water Quality Standards. 795 (Goodman Letter) 796 797 Recommendations 798 A lh e EPA should plainly state how this rulemaking will impact storm-water collection systems 799 and clearly exempt, those parts of the systems that EPA does not wish to include. (Goodman 800 Letter) 801 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00018 C LGA s Protecting America's Waters Workgroup Waters of the U.S.-June 07, 2017 j 802 4 We request that the ERA specifically exclude green infrastructure and outline the Agency's 803 understanding of what is included within green infrastructure similar to what was done for agricultural 804 practices for 'normal farming practices'. (Goodman Letter) 805 806 Cost to Local Government 807 808 B a c k g ro u n d 809 The LGAC heard extensive concerns that the US Army Corps o f Engineers simply does not have 810 enough resources to effectuate an efficient permit process now or under a new rule without 811 additional resources. An ineffective permit process consumes scarce local state andfederal 812 personnel andfinancial resources without achieving a value-added return on investment The 813 revised ride and the permitting process and implementation must recognize the scarcity o f these 814 resources such that results are optimizedfor the level o f investment (LGAC 2014 Report) Delays 815 and additional permitting do not get calculated infSUfimplistic understanding o f affordability o f 816 2 percent: o f median household income (MH1), which the Agency utiiize&dmmmke determinations 817 on significant cost impacts to local communitiSfffpodman letter). 818 819 R e c o m m e n d a tio n s : 820 4 The LGAC recommends that the EPA continue to coordinate with the US Army Corps o f 821 Engineers to ensure that the permit process is predictable and value-added. The proposed rule 822 must be viewed in the context o f how it will be implemented to validate that the resource 823 protection outcome is balanced against the economic cost o f the permitting process. Local, tribal 824 and state agencies are at thefront lines o f achieving the goals o f the Clean Water Act. Engaging 825 local agencies as collaborative partners in the conversation with EPA and the US Army Corps o f 826 Engineers regarding implementation can only improve the process and the desired water 827 resources protection results. (LGAC 2014 Report) 828 829 4 The LGAC recommends that EPA better understand the cost and resource implications, 830 especially to local, state and tribal agencies, before drafting thefinal rule. Local agencies are very 831 concerned about cost, which is exacerbated by the uncertainty in the permitting process. (LGAC 832 2014 Report) 833 834 835 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069203-00019