Document ppXb74KremyeKwd3dMZnpE64w

EPA'S LOCAL GOVERNMENT ADVISORY COMMITTEE'S 1 2 3 4 5 6 7 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00001 IP A 's Loot! Government Advisory Committee's From the LGAC's Charter, defining general goals: The LGAC is a policy-oriented committee. To assist the agency in ensuring that its regulations, policies, guidance and technical assistance improve the capacity of local governments to carry out these programs, the LGAC provides advice and recommendations to the EPA Administrator. 12 "Water is the lifeblood of all our communities and our economic prosperity, and we want to be good stewards of our Nation's water resource for now and the years to come. This is why having a clear and enforceable `Waters of the U.S.' rule is so important to us. If also is important that it is financially sustainable and does not overreach, but affirms our goals to make our communities a better place to live and work for all of our citizens." Mayor Bob Dixson, LGAC Chairman 25 26 m!prm, sale and affordable drinking w afer Is a iSm ersfooe of health, recreation mtd commerce. EPA Acts a critical role fo creole a facilftoflve, cooperative and cellofeoraflve regulatory eovlroomeof la which local, tribal, sfate oacf fAe federal partners worft together to protect eoe of oar nation?$ most important resoarces." Susan Hann, LGAC Water Workgroup Chairwoman 38 Sierra Club v. EPA 18cv3472 NDCA Tier 10 Page 1 ED 002061 00067988-00002 IP's Locai Government Advisory Committee's 39 40 4, IRA's Local Government Advisory 42 Committee's 43 44 W A T I i S O F T H E U N I T E D STATES 2 0 1 111 E P O R T 45 Executive Summary 46 47 I. Introduction and Background 48 A. EPA's Proposed W aters of the U.S. Rule 49 B. Committee Charge 50 C. Historical Context 51 52 II. Waters of the U.S. and Local Governments 53 A. W aters: Our Nation's W ealth and Health 54 B. Local Governments and Cooperative Federalism 55 C. Clarity and Predictability 56 D. Flexibility and Regionalization 57 E. Enhanced State and Local Government Role 58 F. Scalia Approach: Challenges and Opportunities 59 G . Exemptions 60 H. Permitting Reform 61 I. Agriculture and Rural Communities 62 J. Outreach to Local Governments 63 K. Financial Sustainability 64 65 III. Response to Charge: Findings and Recommendations 66 67 IV. Conclusion 68 69 V. Appendix 70 72 73 Page 2 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00003 IPA's Loot! Government Advisory Committee's 74 75 76 The ERA Administrator issued a compelling charge to the Local Government Advisory Committee that 77 provided an opportunity for local, tribal and state governments to advise the EPA regarding W aters of 78 the United States. The LGAC W aters of the United States Report 2 0 1 7 provides both policy perspective 79 and specific responses to the charge that can help guide the EPA in moving forward with rulemaking. 80 Clean, safe and affordable drinking water is vital to the health and prosperity of our communities. As 81 local, state and tribal representatives, the LGAC is committed to this mission in philosophy and action. The 82 report includes several thematic concepts: 83 Local, tribal and state governments are partners in the mission to provide and preserve clean, 84 safe and affordable drinking water. W e connect with citizens and know our unique communities. 85 Armed with this knowledge, we can act locally in the interest of clean water. 86 Clarity and predictability are paramount to success. The lack of clarity and predictability are 87 serious challenges to effectuating any rulemaking process. Clear definitions and criteria are 88 needed for jurisdictional determinations rather than interpretations. Simplifying the jurisdictional 89 determination process is one of the most important steps. 90 Flexibility and consideration of regional differences are needed. Several examples of potential 91 regional exemptions are included in the report. 92 There are opportunities to enhance state and local roles. Local and state governments want to be 93 engaged and can do so with the appropriate resources through State Assumption of the 404 94 program or State Programmatic General Permits. 95 Regulatory reform should include incentives for best practices including green infrastructure, 96 stormwater management systems, agricultural innovation and other evolving innovations. 97 Exemptions for activities that clearly have a net positive impact need to be considered. 98 The permitting process must be more predictable. JurisdictionaI determinations of "yes", "no", or 99 "maybe" within a definitive time frame such as 60-90 days would be a tremendous improvement. 100 Technology, including mapping, and other innovations, can improve efficiency and effectiveness. 101 Utilizing the 2 0 0 8 guidance (with definitional changes) can be a good foundation for jurisdictional 102 determinations. 103 Source water protection remains a primary concern as this is the foundation of the nation's 104 drinking water system and health of our communities. Ultimately, a community's ratepayers 105 absorb the cost of treating source w ater, which can become unmanageable as source water 106 quality deteriorates. 107 Affordability is a universal theme heard across the nation. Whether it is the cost of source water 108 treatment, compliance costs and penalties, infrastructure development or a myriad of other costs - 109 the ability of citizens to pay must be considered in the equation. If a community cannot develop 110 an affordable rate structure, then citizens do not truly have access to clean, safe drinking water. 1 11 112 In summary, the LGAC W aters of the United States 2 0 1 7 report delivers a series of recommendations 113 that can assist EPA in evolving the regulatory framework in a w ay that collaborates with local 114 governments, improves efficiency and effectiveness and advances the goal of clean, safe and affordable 115 drinking water for our communities. Page 3 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00004 IP's Loei Government Advisory Committee's 116 1 17 118 119 A , E R A 'S P R O P O S E D W A LTERS O F TH E UPS, RU LE 120 121 On February 28, 201 7, the President signed the Executive O rder on Restoring the Rule of Law, 122 Federalism, and Economic Growth by Reviewing the "W aters of the United States" Rule (issued June 123 2 0 1 5 ).12The Executive O rder gives direction to the ERA Administrator and the Assistant Secretary of the 124 Army for Civil W orks to review the final Clean W ater Rule (CWR) and " publish for notice and comment a 125 proposed rule rescinding or revising the rule." The E.O. also directs that ERA and the Army "shall consider interpreting the term `navigable waters' in a manner "consistent with Justice Scalia'ii il p i o n in Rapanos 2 w h ii|||d u d e s relatively permanent w a t e llllp i w etlandlltith a continulilliurface connection to relatively permanent waters. As part of EPA's e ffo rllllllld n su it with state and local government officials, E P A llllia l Government Advisory C o m liilillfiL G A Q is p ro v id iilllis recommendations to the Administrator on revising the definition of "W aters of the United States" (W OTUS} and identifying ways to reduce the regulatory burden on local communities as well as balance that with . environm d||||||||fection. llln April 1i | i 0 17, EPA Administrator Scott Pruitt sent out a lllicitation fd lllp u t on the forthcoming proposal to rescind and 139 The Honorable Scott Pruitt, EPA Administrator seek input from officials as an important step 140 for the EPA in the process prior to proposing l ^1 regulations that may have implications on federalism. The LG A C 's charge is also an opportunity to hear from state, local and tribal partners from across the country on approaches to consider for a W O TU S rule and other significant issues to be considered in developing and implementing a revised W O TUS rule. 1 https://www.whitehouse.gov/the pres-office/2017/02/28/presidential-exeuctive-order-restoring-rule-law-federalism-and-economic 2 Rapanos v. United States, 5 4 7 U.S. 715 (2006) 126 Supreme Court 2 2 0 8 ; 165 L.Ed. 2d 159 Page 4 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00005 IPA's Loot! Government Advisory Committee's 149 The agencies intend to follow an expeditious, two-step process that will provide certainty across the 150 country: I) an initial rulemaking to rescind the 201 5 rule and reinstate the regulatory approach that, except 151 for a brief two-month period prior to the 6th Circuit stay of that rule, has been the law in place since 152 1986, and thus maintains the status quo, and 2) promulgation of a revised definition of 'W aters of the 1 co U.S.' consistent with direction in the February 28, 2 0 1 7 , E.O. "Our goal is to help the EPA be a better partner with State administrators and policy-makers to better achieve our shared objectives: protecting the waters of the U S . and protecting the economic interests of Americans." Slot'S isiiliiiilifrtciifiv IfiiililsiJdoc!; ICarfllllli::, 157 State Representative Tom Sloan, Kansas 158 160 As part of EPA's efforts to consult with state and local government officials, EPA's Local Government 161 Advisory Committee (LGAC) puts forth our findings and recommendations to the Administrator on revising 162 the definition of "W aters of the United States" (W OTUS) and identifying w ays to reduce the regulatory 163 burden on local communities as well as balance that with environmental protection. 164 tsEPA Admkmtrafor Pruitt gave the LGAC a greet opportunity to provide broad input m l only m proposed rules/ but also on their effective implementation. Waters of the US' rule is particularly challenging; but the LGAC embraced the charge/ by providing our unique perspective to heifer help clarify./ deine and prated our important wafer resources across America 165 166 Jeff Witte, Secretary, New Mexico Department of 167 Agriculture Page 5 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00006 IPA's Local Government Advisory Committee's 168 The LGAC consists of 35 local, state and tribal government elected and appointed officials representing 169 cities, parishes, counties, municipalities, and other local political jurisdictions. Local officials are 170 knowledgeable and provide unique perspectives on issues relating to a revised rule. Further, the LGAC 171 offers balanced views from diverse on-the-ground perspectives. 172 Through a collaborative process, the LGAC was charged to provide Administrator Pruitt with expeditious 173 and meaningful advice relating to a revised "W aters of the U.S." rule. O verall, the goal is to provide 174 recommendations on approaches the EPA should consider when considering a revised rule. "The City o f Aurora C olorado appreciates the EPAA effo rts to reach out fa iocat communities to gather comments fo r poioniiai approaches fa fhe W O TU S Council M em ber Brad Pierce 175 176 Council Member Brad Pierce, Aurora, CO 177 . 178 This Report highlights our findings and recommendations from our unique local government perspective 179 which will assist the agency in providing insights from this perspective to help shape a revised rule that 180 will better promote cooperative federalism and also provide our perspectives on the best means to 181 communicate a revised rule with state, local and tribal governments. 182 183 C HI S T 184 !f l l l l l i 185 Congress enacted the Clean W ater Act (CW A) in 1972 [33 U.S.C. 1 251 to 1387] to prevent the 186 pollution of waters of the United States, including waters not deemed traditionally "navigable" such as 187 streams, lakes, and wetlands. Since then, the CW A has been instrumental in protecting public health and 188 the environment. However, Supreme Court decisions in 2001 and 2006 interpreted the Clean W ater Act 189 In w ays that changed the approach for determining whether a water body was protected under the Act. 190 The Supreme Court's decisions shifted focus a w a y from potential effects on interstate commerce, and 191 towards connectivity among waters and potential effects of a water on the integrity of downstream 192 navigable waters. The intent of the proposed rule was to clarify what waters were covered under the 193 Clean W ater Act. Following Supreme Court decisions in 2001 and 2 0 0 6 , determining protection for 194 streams and wetlands became more complex. Requests for a rule to provide clarity came from 195 Congressional members, state and local officials, industry, agriculture, environmental groups and the 196 public. Page 6 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00007 IPA's Loot! Government Advisory Committee's 197 198 In M ay 2 0 1 4 , the LGAC undertook an extensive analysis and collaboration to provide recommendations 199 to the EPA on the 201 5 W aters of the U.S. Rule. The U.S. Environmental Protection Agency and the U.S. 200 Army Corp of Engineers proposed a joint rule (201 4) to clarify the definition of "waters of the United 201 States" in the 1972 Clean W ater Act. It was published in the Federal Register on April 21, 2014 [79 202 Fed. Reg. 22,1 88] with a public comment period that was extended twice. In response to the M ay 2014 203 Charge, the LGAC held four face-to- face public meetings from across the country to engage local 204 officials regarding the proposed rule. The goal of these public meetings was to hear input and develop 205 recommendationslililfhe EPA to consider in p rom u!aatina,iililil:l rule. To engage a wide range of officials, the meetings were held in diverse geographical regions: St. Paul, Minnesota; Atlanta, G eo rg ia; Tacoma, 210 W iillh g to n ; and Worcestliplkissachusetts. The LGAC heard diverse viewpoints from 212 individuals of local, state and tribal Julie Ufner, National Association of Counties 21 3 (NACo) 214 215 representatives. These perspectives were deliberated and incorporated in a Report for the EPA to consider entitled, " Initial Findings and 2161 Recommendations Pertaining to EPA's Clean 217 Wafer Act Waters of the U.S. Proposed Rule."3 218 The LGAC heard many concerns expressed across the country regarding clarity, sufficient time to give 219 input; regulatory delays and the costs ..(financial and resources) of implementation. Despite some changes 220 to the final rule as a result of the public comments and some LGAC recommendations incorporated, the 201 5 final rule still lacked clarity and was contested by states, industry and other organizations. Some members felt that EPA's detailed response to comments would demonstrate to participants that their concerns were heard and acknowledged. Other members felt that the public, and especially those involved in the LGAC public outreach, should have the opportunity to comment on a substantially revised rule. The LGAC concluded that it was (and remains) important to EPA's credibility to be responsive to the concerns of local governments expressed through the public outreach process. LGAC 2014 M eeting, A tlan ta, GA, w ith M ayor Kasim Reed 3 Ntps//www.epaoy/sites/prociuction/files/2015-10/documents/11.5. i 4 w.o.t.u.s. report.pdf Page 7 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00008 EPA's Local Government Advisory Committee's 237 1, IVater end Our Communities 238 239 W ater resources are the lifeblood for our nation's cities, towns and small rural communities. It is essential for the health, prosperity and security for our citizens and is among the top priorities for us in local governments. As State, local and tribal government partners we desire to manage our water resources so that we have reliable and safe water supplies to create jobs, attract industry and investments, and piovide for the health and -velfoi e of citizens. A common understanding of the value of wore! and how it impacts the health and prosperity of us at Z6X) 261 Evening barge trip on the M islilp p i River n|||||owntown $lig|:PauI, MN. 262 Photo Source: Davln Brandt, i | | | | | | f CGunty|iN 263 264 the local level is important for governmental decision-making. For exam ple, water infrastructure costs are 265 estimated to be $ 100 per household per year. For smaller communities, these same costs are $4 00 to 266 $800 more per y e a r.4 It is estimated that for every $1 million investment in water infrastructure it 267 supports between 15 and 18 jobs throughout the economy. Therefore, disruption in our nation's water 268 supply could be devastating to communities. 269 Therefore, protections unaer the Gearr W ater q ui, c o m m u n i t ie s d e p e n d OH w a t e r f o r 270 Act for the 1 1/ million people (one third of . . ,, . . 271 Americans) that rely on tnese waters as part econom ic p row ess. ` 272 of our public drinking w ate r assets are 273 decisions of public trust and stewardship. 274 4 http://w ww.nerw a.orq/qwnews/db21 2 .p d f, The Value of W ater and the W ater Operator, by Doug Buresh, Circuit Rider #3 Page 8 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00009 275 Protecting our rivers, lakes, streams and wetlands 276 and keeping them healthy and safe is the 277 responsibility of all levels of government. At the 278 same time costs of treatment should not be 279 transferred directly to rate payer - at the tap. 280 282 Mayor Norm Archibald, Abilene, TX 283 IPA's Loot! Government Advisory Committee's rir ij?' llllllllii lllll lllll lllllllllllllllllllilllllllllllilillllilMSj^^Wii^M^^^^^^^^^^^^H III "One of the most important resources for any community is its water supply. The ability to provide fo r the future is the ability to provide water for the future. As our city plans ahead, the building of the Cedar Ridge Reservoir is at the heart of our plans. If is imperative we work hand in hand with our federal and state agencies to streamline the permitting processes. The next generation is counting on us." 285 The Clean W ater Act (CW A) as amended in 1972, established the basic structure for protecting our 286 nation's water resources by regulating pollutant discharges into the waters of the United States. Clean 287 W ater Act programs are largely federal, state and tribal programs. 288 289 The Clean `W ater Act applies to " navigable waters," defined in the statute as "W aters of the United 290 States." On February 28, 2017, the President of the United States issued an Executive O rder directing 291 EPA and Department of the Army to review and rescind and/or revise the 201 5 Rule. 292 293 The EPA and the U.S. Army Corps of Engineers are in the process of considering a revised definition of 294 "W aters of the United States" consistent with the Executive O rder. Local governments support a straight295 forward rulemaking process, inclusive of the tenants of cooperative federalism. This approach 296 acknowledges the shared responsibility of state and local governments in the governance and in the 297 cooperation to work out details of responsibility. 298 Sierra Club v. EPA 18cv3472 NDCA Tier 10 Page 9 ED 002061 00067988-00010 IPA's Local Government Advisory Committee's The U.S. Conference of Mayors sincerely 300 appreciates the work of the Local Government Advisory Council (LGAC) for working on the issue of `W aters of United States' and for providing multiple forums to listen to the concerns of the many parties that have concerns. This rule will have an enormous impact on the nation and it is important that the views of local government are well represented." Judy Sheahan, Assistant Executive Director 3Q1 The U.S. Conference of Mayors iilihiestake Reservoir - PitkrilllfijEagle Counties, 'Colorado IllIsSource: City o flfllllta , CO 30f 304 The C W A Section 4 0 4 is jointly administered by ERA and the Corps of Engineers and regulates 305 discharges of dredged or fill materials into `W aters of the United States', including wetlands. C W A 306 Section 4 0 4 is largely federal with the exception of a small number of State Assumed 4 0 4 Programs 307 (Michigan and New Jersey). If empowered, states and tribes could play an increased and more efficient 308 role in managing the program. Local governments too, have a strong role to play and can be key 309 strategic partners in protecting our nation's water resources. Local governments too manage broad water 310 quality protection efforts such as managing stormwater, flood protection and enhanced watershed 311 protection along with protecting the sources of drinking water. 312 Local governments have the tools to strengthen wetland and stream protection efforts that better support 313 community goals with greater protection for the resource. Integrated Planning (IP) offers municipalities the 314 opportunity to meet multiple Clean W ater Act requirements by sequencing separate wastewater and 315 stormwater programs while maximizing investments so that the highest priority projects come first. EPA, 316 states, and municipalities have achieved progress in implementing IP approaches while addressing the 317 most serious water quality issues in order of priority to protect public health and the environment. In Portland, Maine, we're lucky to have wafer resources at our door step. Water is vital to our regional economy and way of life. Therefore, our city and regional stakeholders collaborate with state and national partners to ensure we keep our rivers, streams, and bays clean. Everyone plays an important role! Csmmdhr Jill Bmtm, Ptsrilmd, / i f 319 Page 10 318 Councilor Jill Duson, Portland, ME and Vice -Chair of LGAC Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00011 320 "We should be gravely concerned about the minimization of the federal role in the Clean Water A ct. Any changes at the federal level must be accompanied by the commitment and action to enhance protection by state and local officials. This requires frank discussion given the financial challenges faced by some local communities and states." IN IPA's Loot! Government Advisory Committee's 322 MayoPlIllilPPreemart-Wilsors, Gary, IN 323 324 325 326 A central theme heard by the LGAC in public meetings of state, local and tribal government officials on 327 the 201 5 `W aters of the U.S.' rule is that definitions were too broad or confusing and were subject to 328 interpretation through litigation. 329 330 Supervisor Ryan Sundberg, Humboldt County, CA "It is very important that we have a clear definition when it comes to W OTUS. Without clear definitions, the costs of doing business rise, and we jeopardize our ability to provide jobs and remain competitive. The LGAC has collected great input from around the Country and I am hopeful to see some positive changes." Supervisor Ryan Sunclberg, Humboldt County, CA Page 1 1 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00012 IPA's Local Government Advisory Committee's 331 Key terms used in the W O TUS rule are vague such as "uplands," "tributary," "floodplain," "significant 332 nexus," "adjacent," and "neighboring" but are also important in defining what waters are jurisdictional. 333 These terms are either broadly defined, or not defined at all which has led to further confusion, not less, 334 over what waters fall within federal jurisdiction. Local governments need a rule that that puts forward 335 clear definitions and provides examples and graphics for further clarity. Without this clarity, it could lead 336 to further unpredictability and result in unnecessary project delays, subjective judgements and 337 inconsistency across the country. 338 D, Fteillllitv and R eipMllllllizof loti 350 351 Ohio River, City of Huntington, West Virginia Photo Source: Huntington Quarterly 352 n formulating a revised `W aters of ie U.S.' rule it should have flexibility ind reflect natural and regional -arsabslity of our nation's waters. As a d i l i f approach, criteria could be established that recognize natural ecoregions (delineated on the basis of . .atural and anthropogenic factors) to recognize geographic variability 355 356 357 Page 12 Sierra Club v. EPA 18cv3472 NDCA Council Member David Bobzien, Reno, NV Tier 10 ED 002061 00067988-00013 358 "Park City is a smaj3j5609 western community 361 of 8,000 with big 362 water challenges. 363 W e work closely with our EPA Region 8 office to help solve our water issues. The EPA is not just a regulatory agency, but is an essential resource to help us address our legacy mining issues and its environmental impacts." Council Member Andy Beermarij^ Pork City, UT 3 6 '6 367 368 369 370 371 372 373 374 375 376 377 IRA's Loot! Government Advisory Committee's among regions. States and tribes should have further input in this process to modify or improve on this basic approach. Workgroups made up of federal, state and local officials could help establish local delineation factors characteristic of these regional water bodies such as western ephemeral streams, and other regional unique wetlands such as pocosins, Carolina bays etc. should be factored. Council Member Andy Beerman, Park C , 'Western arid streams may need funner regional determinations as to whether these areas are washes and otherwise dry channels characterized by irregular (not seasonal) ephemeral flows or may actually qualify as `W aters of the United States.' These jurisdictional calls of W O TU S should be the exception rather than the rule. Also, wetlands and streams in the State of Florida also should be considered in separate regional guidance since most of the State could be classified as `W aters of the U.S.' due to high groundwater tables and surface connections with `W aters of the U.S.' 378 379 Arroyos are common geographic water features in the arid west. The examples in these photographs are non 380 permanent, ephemeral waters that only carry water during extreme precipitation events. This is an example of 381 land structures which cause confusion under a one size fits all approach." Image Credit: Dripping Springs Road and 382 Baylor Canyon Road Improvement Project Environmental Assessment, BLM & FHWA, April 2015. 383 384 Page 13 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00014 IP's Local Government Advisory Committee's 385 386 States play a vital role in the protection of wetlands by addressing waters and activities that are not 387 regulated under the Section 4 0 4 program, or by imposing additional limits on activities that are 388 regulated under that program. Pursuant to Section 404(g) of the Clean W ater Act, a state can assume the 389 authority to issue permits for the discharge of dredged or fill material into waters regulated under the 390 Clean W ater Act other than traditional navigable waters or waters seaward of the high water mark. See 33 391 U.S.C. 1344(g). Clearwater Since the passage o f the Clean Water Act in 1972, tremendous progress has been made 393 cleaning up America's waterways. Water crises in Flint, Ml, Newburgh and Hoosick Falls, New York, remind us: The Clean W a ter Act is as important today, as it was then. It needs to be clarified, strengthened and enforced. All waters are connected to the water we drink. It's 393 394 39:5 39:5 39 g 3^3 3 9 :> 4031 40' 40 > 403 40 l 40:5 40 >5 important to the economy, and it's important to each of us". Legislator Manna Jo 40 7 403 40 ? 41 0 Greene, Ulster County, NY Legislator Manna Jo Greene, Ulster County, NY EPA's regulations also authorize tribes to assume Section 404 permitting authority within their jurisdiction (40 C.F.R. 233.2). In order to assume the Section 404 permitting program, a state must enact laws and regulations to create a program that meets requirements designed to ensure that the state can administer the Section 4 0 4 permitting program as the Corps. This process could be streamlined and could be incentivized for state assumption. States can play a greater role in the administration of the federal program and streamline permitting for developers in the state through the issuance of State Programmatic General Permits. C W A Section 404(e) authorizes the Corps of Engineers to issue general permits "on a state, regional or Page 14 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00015 IP A 's Loot! Government Advisory Committee's A11 nationwide basis for any category of activities involving discharges of dredged or fill material", if there are only minimal adverse environmental effects. Local regulation of wetlands in addition to the state and federal programs have many benefits as well. Local decision makers have numerous land yllito o ls availab le to them that can be more effective at less cost. They can also protect sensitive landscapes valuable to their community, such as with building permits, zoning authority, sanitary and health codes, and soil erosion control. 424 Back Cove runner, Portland ME. Photo Source: Corey Templeton Photography 425 427 Local governments, in general, support a narrow interpretation of the Clean W ater jurisdiction. The Scalia 428 opinion applies a narrow interpretation to C W A jurisdiction. Such an interpretation would extend 429 jurisdiction to only " relatively permanent, standing or continuously flowing bodies of w ater" connected to 430 traditional navigable waters, and to "wetlands with a continuous surface connection to" such relatively 431 permanent waters. The LGAC puts forth an approach that would yield categorical answers of jurisdiction 432 of 'yes', `no' or `maybe' using criteria such as contained within the 2008 guidance and consistent with the 433 Scalia approach. "Certainly America's waters must be protected. W e should not sacrifice the quality of our streams. However, pragmatism must also be reflected in our regulations. A pristine stream in a desert of economic activity creates an unnecessary tension between the intent to protect our environment and those who simply seek an honorable way to provide for their families. W e must always be prepared to balance the scales between environmental protection and economic opportunity." Mayor Stephen Williams, Huntington, WV 435 M ayor Stephen W illiams, Huntington, W V Sierra Club v. EPA 18cv3472 NDCA Tier 10 Page 15 ED 002061 00067988-00016 IPA's Local Government Advisory Committee's 436 Local governments are also concerned about the assurances that water resources which provide (or 437 potentially provide) our communities' drinking water (source water) are regulated and protected. These 438 significant water bodies form the assets of our water infrastructure and these areas may or may not fall 439 within the Scalia interpretation as "connected to a federal navigable w aterw ay." Local governments 440 would support States and Tribes assisting to identify these significant water bodies by delineating and 441 mapping these significant `W aters of the State'. These areas once identified should have primacy in 442 decision-making. ______________________________________________________443 "We need to protect our streams and 444 | wetlands that are the w a ter source for 445 \ many of our communities, especially for o i^ 6 j E J communities now and for our generations. A n d w e n eed to engage E J 447 i communities to look at local solutions." 448 ------------------------------------ lllllllfe----------454-J 452 453 454 Exemptions for stormwater and green infrastructure are important for local government. Local 455 governments would be supportive of a revised rule that would retain codification of the waste treatment 456 exemption. It should also extend to municipal separate storm sewer systems (MS4s), stormwater ponds, " Ensuring c l a l l A m e ric a n iiillP i In M ich ig an,'Iflllno w th ii|| y fa r too wifllMbcause of the Flint IH it e r Crisis and continuing cd illl||g tio n s about h o ||i||e can ensure access to q u a liff|||||k in g water. l i l P W Q TU S rule must be carefully f i i l i d to e n s ilillh a t each level of government has t h il|i||s ^ |ll|B r c e s , and clarity It needs to e n su flliild n w ater." 458 Page 16 Sierra Club v. EPA 18cv3472 NDCA 457 State Representative Stephanie Change, Michigan Tier 10 ED 002061 00067988-00017 IPA's Loot! Government Advisory Committee's 459 460 settling basins and recycled water facilities which depend upon artificially created wetlands and storage 461 ponds to treat millions of gallons of water a d a y. There has also been a major concern of county governments that roadside ditches are "The EPA Locai Government Advisory Committee is Jre^64 also exempt. to supporting ant# buildSng the local-federal partnership, 465 The loco# officials that serve on fire LG AC ore able fa 466 directly share feedback with EPA on rules ontl reguiatioj^ and to help shape them to best meet the needs of 468 communities across the country, " 469 The revised rule should affirm that reservoirs and ponds along with influent and treated effluent storage ponds are within the scope of the waste treatment exemption, consistent with the regulatory definition of "complete 470 waste treatment system" found in existing 471 federal regulations. This would include features such as storage ponds, basins, artificially created 472 wetlands, recycled water reservoirs and other features associated with water recycling.5 473 474 475 476 C W A Section 404 permitting is complex and outdated. Agencies' budgets and staffing are overwhelmed 477 and lack resources to respond to individual permits. At the same time, the private sector confronts time478 consuming requirements that pose significant delays and economic burdens. 495 Commissioner Victoria Reinhardt, 496 Ramsey County, MN 497 498 482 "It's not just about getting a permit done quickfy63 It's about why you have the permit in the first 484 place. As long as we keep in mind that it's aboP^ our environment, and it's about our water, we 4g7 can implement that in any way we choose." 433 . . 489 490 491 492 493 5 1 See 40 C.F.R. 35.2005(b)(1 2), defining "compiete waste treatment system" as "all the treatment works necessary to meet the requirements of title III of the [CW A ], involving . . . the ultimate disposal, including recycling or reuse, or from the treatment process." Page 17 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00018 IP's Locai Government Advisory Committee's 499 Permitting can be made more efficient and more effective. For exam ple, permitting can be done more 500 efficiently and in less time (less than 90 days). It can also be more flexible, decentralized and integrated 501 with community goals. Local governments would be generally in favor of the State Assumption of the 404 502 program. Also, further consideration of General Permits and mapping would aid in permitting reform. 503 504 505 506 507 508 Agriculture and rural communities have expressed concerns about the `W aters of the U.S'. Most of the 509 concern of the 201 5 rule has been whether it would modify existing statutory provisions that exempt 510 "normal farming and ranching" practices from dredge and fill permitting or others that exclude certain 511 agricultural discharges, such as irrigation return flow and stormwater runoff, from all C W A permitting. 512 The other key area of concern was the confusion whether or not ditches were exempt. 513 514 .ilPW Com m untf0^dvisory liiiP iiH p f f f e e (SC A S) received many g)lii|il|> m n?enfs from across file nafion, p iliU p rfy as the issue applies to a g r ic a / lilliiiid small communities. W e iiiw e .done I S f best to incorporate them ip fS^ llliiptom m endafions, and hope we can heip to formulate a clean water rule that can work across the nation, " 515 516 Commissioner Dr. Robert Cope, DVM, Salmon, ID, 517 Chair of the Small Community Advisory Subcommittee (SCAS) 518 519 520 521 Normal agricultural and silvicultural practices are exempt but the interpretive rule issued in 2014 (later 522 rescinded) to clarify the 56 practices that are exempt from C W A Section 4 0 4 permitting was very 523 confusing to the agricultural community. Another issue for rural communities is the National Pollutant 524 Discharge and Elimination System (NPDES) permitting for application of pesticides and herbicides in 525 W O TUS. Also, there is a concern that `prior converted croplands' which are exempt if they are certified 526 by NRCS, it should also be exempt from wetland regulations administered by the Army Corps of 527 Engineers and EPA (Section 4 0 4 of the Clean W ater Act). 528 529 530 531 532 533 534 Page 13 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00019 535 536 537 550 551 552 Fencing Livestock, Lexington, KY-Phofo Source, Eric Vance, EPA IPA's Loot! Government Advisory Committee's However, If the land changes to a nonagricultural use, or is abandoned, according to the criteria established by the Corps and EPA, it may be regulated under the C W A . These issues combined with the complexity of the W O TU S and the role of the NRCS poses significant issues for the agricultural sector and rural pdmmunities. ,f! W afers o f the United flie unique opportunity i||i||afce surdld fl Americans have access fcf;:^|l!||?esf Jlllli drinking wafer possible. W # l||||||||lil||| a duty to preserve the mosf vitdfl^fgi of life - W a f l i l l l l i .. M ayor " J llliy DuPree, Ph. Illlll Ha 11lesb arp ||i||i 553 554 555 556 558 559 560 561 562 563 564 1 Mayor Johnny DuPree, Ph.D., Hattiesburg, MS Vice-Chair, Small Community Advisory SubCommittee Page 19 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00020 IP's Local Government Advisory Committee's 565 566 567 There is a need for enhanced outreach to local governments. Its significance in W O TU S decision-making is 568 all the more critical. A comprehensive communication strategy is needed for local governments that 569 improves the channels of information distribution, and explicit communication at all levels of government. 570 Getting information into the hands of local governments where it will have the most impact must be a 571 priority. This is particularly relevant in small, disadvantaged and ethnically diverse communities. Local 572 governments need to act effectively so that information will reach all relevant parties so it can also be 573 readily communicated effectively to citizens. 574 575 576 577 578 579 580 Administrator Pruitt meets with Mayor Elizabeth Kauri, Burnsville, i/tN anti Vice-Cnair, Protecting America's Wtilers Workgroup-at Ihe U.S. Conference of Mayors, Photo Source: Eric Vance, EPA 581 582 Therefore, there will be a pressing need to improve governmental communication and transfer of 583 information among the EPA, state, tribal and local governments, and to get 584 that information out to the public. Specific tailored information for local elected officials is also needed to 585 convey the effective changes on any new W O TUS rule. "A change in culture is necessary in managing our w a ter resources. Working together to solve our problems is what is needed rather than imposing fines on cities who already cannot pay. " M a yor Elizabeth Kaurz, Burnsviiie, Minnesota and V ice-C hair o f ihe Protecting A m erica 's, W aters W orkgroup 586 587 588 M ayor Elizabeth Kautz, Burnsville, MN Page 20 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00021 iP A 's Loot! Government Advisory Committee's 590 591 One of the common themes heard by LG C members revolves around a ffo rd a b ility . This Issue has several 592 components including compliance, pollution and clean-up costs, punitive costs that only serve to reduce 593 local government resources and the disproportionate costs for small and economically d isadvantaged 5 9 4 communities. If the goal is s a fe , clean w ater throughout the country, innovation In approach and cost 595 allocation must be considered a t the fe d e ra l, state and local levels. 596 597 598 599 Mayor Sal Panto, Easton, PA 600 601 " Wafers' o f fee U.S. needs an education p e c e m that others are given a clear understanding that clean and sa fe w afer is a precious resource connecfed to everyfetng-fee wafer we drink and the fo o d we e a t And we have a res:pomihiiify to profeef if not only this generation Jhu# the generations to come/' 602 603 S a m a ra S w a n s t o n , C o u n s e l to the New Y o rk C ity L e g is la t u r e Page 21 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00022 IP's Local Government Advisory Committee's 604 605 606 607 r - Question: 1- How would you like to see the concepts of `relatively permanent' and 'continuous 608 surface connection' be defined? How would you like to see the agencies interpret `consistent with 609 Seaiia'? Are there particular features or implications of any such approaches that the agencies 610 should be mindful of in developing the step 2 proposed rule? 611 612 l.a. How would you like to see the concepts of 'relatively permanent' and 'continuous surface 613 connection' be defined? 614 615 616 In the Rapanos v. United States 547. U.S. 715 (2006), the Supreme Court provided a plurality decision 617 of four justices, led by Justice Scalia. The decision basically challenged federal jurisdiction to regulate 618 isolated wetlands under the Clean W ater Act. It also applied a very narrow interpretation to C W A 619 jurisdiction, extending the agencies' regulatory authority only to " relatively permanent, standing or 620 continuously flowing bodies of w ater" connected to traditional navigable waters, and to "wetlands with a 621 continuous surface connection to" such relatively permanent waters. Justice Kennedy focused on whether 622 the waters in question have a "significant nexus" to traditional navigable waters, /.e., whether they, 623 "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, 624 physical, and biological integrity of other covered waters more readily understood as `navigable.'" 625 The LGAC has previously commented that they would prefer a d ea r and simple approach for 626 jurisdictional determinations such as an approach that yields categorical answers of jurisdiction in these 627 categories: 'yes', 'no or 'm aybe' responses. Any of these answers are sufficient for local governments if 628 these answers are provided in a timely fashion. 629 630 R ecommendations-. 631 H 632 k. a EPA and the Corps should apply simple approaches that yield jurisdictional calls with simple criteria 633 that give a 'yes', 'no' or 'maybe' answer. (201 4 LGAC Report) 634 H 635 i. a The LGAC recommends using State criteria for these terms as a potential Approach to W etlands with 636 a "Continuous Surface Connection" and "Relatively Permanent" W aters. Here are a few examples of such 637 criteria: 638 639 Jurisdictional 640 641 Streams with seasonal flows or streams with offlow from other water bodies should not cause 642 ephemeral and intermittent streams to be defined as 'relatively permanent'. Metrics and thresholds 643 should be established when a stream is considered "relatively permanent." Such metrics will vary 644 geographically, and the thresholds will be subjective, and made on a case-by-case basis. 645 646 Perennial streams only as "relatively permanent waters" . 647 Page 22 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00023 IPA's Loot! Government Advisory Committee's 648 4* W etlands that directly touch jurisdictional waters are jurisdictional. However, there may also be 649 circumstances where the current practice of considering wetlands with a continuous surface 650 connection, regardless of distance, to be jurisdictional is not appropriate. Such connections should 651 be perennial (and not include ephemeral and intermittent connections). 652 653 4- W etlands with permanent, continuously flowing, surface connections should be included as 654 jurisdictional. 655 656 657 Non Jurisdictional 658 659 4 Erosional features in the arid W est, such as arroyos and dry washes should be `non-jurisdictional'. 660 661 4 Ditches and canals that only carry intermittent flows of water and that are not a relocated 662 tributary or excavated in a tributary, as well as stormwater control features that periodically 663 flow in response to significant precipitation events, should also be exempted. 664 665 4* Develop metrics to identify when "some degree of connectivity" should not be utilized. This will 666 require subjectively defining thresholds for what constitutes a significant degree of connectivity, 667 which should be avoided if at all possible. 668 669 4* W etlands where connections do not exist should be exempted from jurisdiction. 670 671 4 Overland flows that flow through dryland 'S ila k |l|||E W O fO S (rendering a tributary up gradient 672 of the dryland break) should be non-jurisdictional. 673 674 4* W ater features that may be present (for exam ple, residual ponds resulting from placer or other 675 mining efforts) are not jurisdictional where a continuous physical channel is absent; a bed-and- 676 bank is not discernible; an ordinary high water mark is not observable; and/or there are no flow 677 characteristics are not jurisdictional. 678 679 1.b. How would you like to see the agencies interpret 'consistent with Scalia'? 680 681 682 EPA and the Corps issued the 2008 guidance document following the Rapa nos case that was intended to 683 clarify W O TU S. It does so by asserting C W A jurisdiction over waters that would meet either the plurality 684 test (relatively permanent; continuous surface connection) or the Kennedy test (significant nexus). In the 685 Guidance and Memorandum of Agreement between the Corps and EPA, there is a list of key questions 686 and answers, that generally breaks the jurisdictional analysis into three major categories. NOTE: The 687 2008 guidance did not go out sufficiently for public review and was not communicated well to local 688 governments and other stakeholders. The first, and presumably more manageable category includes those 689 waters over which C W A jurisdiction will be asserted in every case. And then the second category of Page 23 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00024 IPA's Local Government Advisory Committee's 690 waters that are not W aters of the U.S. The third category of `m aybe' will go to criteria developed by 691 the states on waters that are significant and should be included as jurisdictional waters. 692 693 694 Recommendations: 695 k ^Criteria as outlined in the 2008 guidance should be used for a revised rule, along with revised 696 definitions and the use of state specific criteria. n 697 l ^Definitions should be modified to provide clarity. n 698 v. * Criteria should be developed that state a series of questions to determine `relatively permanent' or 699 continuous'. If answers are `yes' or `no' it leads to a `yes', `no' or `m aybe' jurisdictional determination. If 700 there is a `m aybe', it diverts to state-specific criteria for jurisdictional determination. 701 l.c. Are there particular features or implications of any such approaches that the agencies should be 702 mindful of in developing the step 2 proposed rule? n 703 l j EPA and the Corps should establish an Interagency Taskforce to develop the matrix of questions to 704 determine `permanent' and `continuous' indicators. Their results should be published and the public given 705 the opportunity to give comment. (LGAC 201 4 Report) n 706 i. jThe LGAC recommends these following examples of state- specific criteria for the revised rule: 707 Intermittent streams, playa lakes, wetlands, and other waters: 708 4 In cooperation with the states, the ERA should designate intermittent streams and other waters as 709 non-waters of the U.S i l l i e d .llihe.,.foIlow ing criteria: 710 Seasonal.flow o i f l | i | .8 P it l| | i| | p a t e r -- each state to develop its own criteria subject 711 l i l l i l l l l l f i ! j l l i j nd a " p ||||:| I; 712 713 4 .I l l i l u s e of the va riab iilflo f condiSfhs within and among states, the EPA should provide guidelines 714 f iillia t e standards thlllinclude factors to be considered, but which do not constitute federal 715 standards (such as the Science Advisory Board's Connectivity Report).6 716 717 4 Such fact ncid ig li re : 718 4 Average number of days of stream flow: 719 4 Seasoniliy of stream flow; 720 4 Rate of stream flow; 721 4 TMDL levels during such periods, amount of water and TMDLs delivered to the 'discharge" 722 body of water; and 723 4 Any other relevant factors as the Agency deems appropriate. 724 6 U.S. EPA. Connectivity of Streams and Wetlands to Downstream W aters: A Review and Synthesis of the Scientific Evidence (External Review Draft). U.S. Environmental Protection Agency, Washington, DC, EPA/600/R-1 1/098B, 2013. Page 24 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00025 IPA's Loot! Government Advisory Committee's 725 4 . States should have standards/factors which reflect possible ground water recharge rates on 726 intermittent streams, playa lakes, wetlands, and other waters. Similarly, factors should include 727 potential contamination of ground water from such water bodies. 728 729 *4 States should develop metrics for each standard they propose and submit to the ERA for review and 730 approval. EPA should respond within 90 days from receipt of a completed state plan to review, 731 propose revisions, or deny the submitted standards and metrics. Failure to complete the analysis 732 within 90 days, subject to the EPA and state agreeing on a time extension, shall result in the 733 submitted standards and metrics being deemed accepted. 734 735 *4 Once the state-submitted standards (three years) are acceptedlliilllitate should submit a report 736 to the EPA detailing whether the waters in question continue to meet the EPA-accepted standards, 737 as determined by the state's metrics. The EPA should detilmine w h e th e rilih . state should submit 738 subsequent reports on an annua! or other timeline basiSIIIII 739 740 4- States should use generally accepted scientific fihlil|s,on is s u e filif affect water Ijlifity related to 741 intermittent streams, playa lakes, wetlands, or othe'hi liig n ai l l livaters. The EPA may request 742 states review their standards and submit proposed reviilMlplihs for the Agency's consideration 743 and approval. 744 Permanent Bodies of Water: 745 4 Many wetlands are seasonal and have been addressed above. For rliose that are permanent, states 746 should be empowered to develop metrics l i l t de r i i l l t rali^ lillt her the water draining a wetland 747 connected to iurisdictipdi Wlii ier are " c le a f lillliln the water that otherwise would flow, if the 748 wetlands were not jlllp n t . 1 749 750 4 States should subrhlilpoposedlliiteria and rrililurement techniques to the EPA for review and 751 approval. EPA should (illg liQ llip lfc a n a .receipt of completed state plan to review, suggest revisions, 752 and approve.or.deny the l i i f t i t t e l .p t illlfip fe review is not completed within 90 days, subject to 753 e x te d iliiliilH liiM lln d s t a t illlls e . the submitted plan shall be deemed accepted. 754 755 ...... l i l i e s should be en co ill|ed to de\Miop water quality criteria and standards for wetlands and other 756 water bodies that, impact on ground and source water quality. n 757 l jA n application for Smart phone or hand-held computer should be developed to give a quick 758 jurisdictional determination and the output sent to all interested parties. (LGAC 20 14 Report) H 759 k ^Manmade conveyances, stormwater treatment systems, ditches, farm and irrigation ditches and green 760 infrastructure amenities should be exempt from jurisdiction. W here possible, EPA and the Corps should 761 work with State, local and tribal governments to map these features as well. NOTE: Drinking wafer and 762 wastewater treatment utilities may have these features mapped as part of Asset Management features. 763 (LGAC 2014 Report) 764 Page 25 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00026 IPA's Local Government Advisory Committee's 765 r Question 2- W hat opportunities and challenges exist for your locality with relying on Justice 766 Scalia's opinion? 767 768 769 Cities and communities care deeply about the quality of water. One concern is that a rule that is left 770 entirely to interpretation and does not provide sufficient clarity, may add to costs and delays without 771 causing important improvement to water quality. (Goodmann Letter) W e understand that the goal is to 772 make it easier to identify W O TU S and a rule interpreting the Scalia decision may not draw bright 773 enough lines for local governments to easily identify those waters affected. Therefore, the use of the 774 Scalia approach in and of itself is unlikely to significantly resolve all of the considerable uncertainty 775 surrounding C W A jurisdiction (either then or now), or prevent continuing litigation to test the agencies' 776 interpretations in the federal courts. However, the 2008 guidance does have criteria that will pose less 777 uncertainty and yield faster results. If the 2008 guidance were revised to include clearer definitions with 778 input from states, local and tribal governments and other stakeholders, with state-specific criteria, it could 779 perhaps help to resolve these issues. 780 7 8 1 Recommendations: H 782 k ^Relying on a modified Scalia approach and incorporating the 2008 guidance into a revised rule can 783 provide a clearer certainty of federal jurisdictional waters which will lead to more certainty and more 784 ease in permitting. 785 786 r Question 3: Are there other approaches to defining "waters of the U.S." that you would like 787 the agencies to consider to providing clarity and regulatory certainty? 788 789 The 2008 guidance document (issued post- Rapanos) offers assistance and criteria to assess jurisdiction of 790 W O TUS (post- Rapanos). It is consistent with the Scalia approach but also asserts criteria to be used for 791 further consideration of C W A jurisdiction (over some waters). This approach would reflect the opportunity 792 to cover waters significant to states, localities and tribes. The new W O TUS rule should also confirm 793 certain exemptions from federal jurisdiction, offering federal clarification where there has previously 794 been uncertainty. These exemptions include stormwater detention ponds, wastewater treatment facilities, 795 irrigation ditches and "puddles." 796 797 Recommendations: n 798 i. jThe LGAC recommends that a similar approach articulated In the guidance to the 2008 guidance be 799 used to revise the W O TUS rule. H 800 k j The 201 5 rule regulates any area having a trace amount of water if it also has - or ever had - a 801 bed, bank, and an ordinary high water mark (OHW M ). This could include many channels and other 802 features that are almost perpetually dry. For the 2 0 1 7 revised rule, there should be more predictability 803 and certainty in general if there is a dry bed with a O HW M (with historical aerial or infrared 804 photography that it can be established as a W O TUS) or exempt. 805 r Question 4-The agencies' economic analysis for step 2 intends to review programs under CWA 806 303, 311, 401, 402 and 404, Are there any other programs specific to your locality that could be 807 affected but would not be captured in such an economic analysis? Page 26 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00027 IPA's Loot! Government Advisory Committee's 808 809 810 811 A revised Clean W ater Rule is expected to have increased clarity and certainty to the process of making 812 jurisdictional determinations under the C W A . Individual jurisdictional determinations can be time813 consuming and resource-intensive for the agencies, permittees, business community and local governments. 814 A revised rule should be designed to reduce the uncertainty and clarify categories of waters that are 815 jurisdictional or not jurisdictional by simplifying the process. Clarifying the CW R will reduce the costs and 816 have positive economic benefits. However, the rule itself does not incur direct costs. The rule only applies 817 when a permit is required for a pollutant discharge that would degrade, pollute or destroy a water 818 body. On a positive jurisdictional call, it is uncertain how high the direct costs would be and who would 819 pay those costs. More clearly defined exemptions will lessen the trigger for a C W A permit. However, it is 820 uncertain the direct costs of either a positive or negative jurisdiction determination. Conceivably, a 821 positive jurisdictional determination could trigger permitted activities potentially threatening or polluting 822 waterw ays. This is especially a concern of local governments as it applies to water bodies that are used 823 for drinking water sources. Because of the high costs of water treatment to meet drinking water standards 824 these costs are often transferred directly to the rate payer and citizens. If a water body is polluted or 825 destroyed, then cost at the local level could pose serious economic costs. W hereas, under a C W A permit, 826 the permittee would seemingly be required to pay mitigation costs rather than the costs transferred to the 827 local government or rate payer. Also, as state or local programs assume more authority, likely with more 828 efficiency, the costs to manage permitting program could increase. States and local governments would 829 not be able to assume these costs without additional resources. Therefore, the economic analysis should 830 be broad and the direct and indirect costs be considered. 831 832 Recommendations: FI 833 i. jThe Economic Analysis should be broad to include impacts to not only Clean W ater Act programs but 834 also state and local programs. 835 836 Below are programs from a local government perspective that should be considered in the Economic 837 Analysis: 838 4 Source Water Protection-There is a general consensus that protecting the nation's water resources 839 is important to local government. Local governments realize that poor water quality affects the 840 health and economies of their communities, disproportionally impacting those that are low-income. 841 Local governments also realize that protecting source water bodies like rivers, lakes, streams, 842 wetlands and groundwater is paramount to protecting drinking water. (LGAC 201 6 Drinking 843 W ater Report). Under the Safe Drinking Water Act, Source W ater Assessments (SWAs) provide 844 information about sources of drinking water used by public water systems. SW As are studies or 845 reports developed by states to help local governments, water utilities, and others protect sources 846 of drinking water and are done differently by each state. Each program is adapted to a state's 847 water resources and drinking water needs. To protect source w ater, the tools of the Safe Drinking 848 W ater Act (SDWA) and Clean W ater Act (CW A) programs are utilized to protect source water. 849 Additional protection tools can be found in other EPA programs and various agricultural 850 programs. Changes made to C W A programs may greatly impact state and local source water 851 protection programs and plans. This could have significant economic impacts to local communities. 852 For exam ple, in Flint, Michigan, shifting the source water to the Detroit River water resulted in 853 significant deterioration of water quality that produced significant public health and economic 854 problems. In Portland, Oregon, where source water is protected, treatment cost is less by having Page 27 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00028 IPA's Local Government Advisory Committee's 855 Clean W ater Protection programs in place. It is unclear how changes in a revised rule will impact 856 streams and tributaries that impact local sources of drinking water. If adequate C W A protections 857 are not in place it could have significant negative economic impacts to water utilities. These costs 858 are likely be transferred to local governments and rate payers. It is also unclear how this may 859 impact the prevalence of toxic algal blooms which have proved very costly on drinking water. 860 861 4 CWA Section 402 - The NPDES permits and discharges could hold significant economic issues for 862 local governments in regard to W O TU S for wastewater treatment, stormwater management, 863 CSOs, and application of pesticides (used for vector control). There has been a concern about 864 expanded federal jurisdiction to previously unregulated streams, ditches, and wetlands. However, 865 a revised rule will include exclusions beneficial for those that operate MS4s. The rule includes key 866 exclusions that may be useful for localities. The rule retains a long-standing exclusion for "waste 867 treatment systems," such as treatment ponds and lagoons. It also adds new exclusions for 868 artificially created ponds, settling basins, construction andllilning e xc a vd f|il|p its, and wastewater 869 recycling structures. Lastly, the revised rule could finally codify the well-understood principle that 870 the C W A does not apply to groundwater. For MS4s, the primary concern about the 201 5 rule 871 was it could potentially be used as parts of an MS4 - including stormwater drainage ditches, 872 BMPs, and green infrastructure projects - are "waters of the US." For exam ple, that could mean 873 that NPDES permit coverage would be required to discharge into an MS4 or that a C W A 404 874 permit would be required to do maintenance on a BMP. The 201 5 final rule includes, for the first 875 time, a regulatory exclusion for "Stormwater control features constructed to convey, treat, or store 876 stormwater that are created in dry land." However, the exclusion does not apply to ditches that 877 were created in previously existing streams or wetlands. The rule's exclusions are important 878 because they take precedence over the rule's jurisdictional tests. For exam ple, a stormwater 879 conveyance ditch that qualifies for the stormwater exclusion would be excluded from C W A 880 jurisdiction even if the ditch would be considered a jurisdictional water under the tributary test. 881 Furthermore, in a reversal of EPA and the Corps' previous position, the agencies stated that they 882 do not retain any discretion to extend C W A jurisdiction to water features that qualify for one of 883 the rule's exclusions. It is unclear how a revised rule will impact Section 402 permits. Potentially, 884 Section 402 permits could prove more costly than Section 4 0 4 permitting at the local level in 885 regard to stormwater and wastewater treatment. 886 887 4 Pesticide Applications in Waters of the U.S.- Since 2 0 1 1 , pesticide applications into, over, or 888 near W O TUS are permitted under the C W A National Pollutant Discharge Elimination System 889 (NPDES) Program due to a 2 009 U.S. Court of Appeals for the Sixth Circuit ruling. Agricultural 890 producers, pesticide applicators and local governments have opposed or expressed concerns on 891 the permitting largely on the grounds that it is duplicative and unnecessary to regulate pesticides 892 applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Local 893 governments, mainly county governments are largely responsible for vector control programs to 894 manage mosquitos and spraying of insecticides to reduce vectors and public health concerns. 895 Although the CW R would have arguably expanded the scope of the waters requiring pesticide 896 permitting, the replacement or elimination of the CW R will not end NPDES requirements for 897 pesticides. However, it may provide opportunity to clarify what discharge waters are subject to 898 federal versus state permits. 899 900 4 Section 303 (d)- Currently, The National Rivers and Streams Assessment (NRSA) 2 0 08 -2 0 0 9 901 report provides information on the biological and recreational condition of the nation's rivers and 902 streams and the key stressors that affect them. The Report indicated that about half of our 903 nation's streams (some of which provide sources of drinking water) have poor water quality. Page 28 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00029 IPA's Loot! Government Advisory Committee's 904 Poorer water quality could result in significant treatment costs such as Impaired W ater sites under 905 C W A Section 303(d) which could transfer the costs to local governments. In addition, in 906 communities that rely on these water bodies for drinking water and source w ater, the cost will 907 ultimately be transferred to rate payers, having a significant economic impact to local 908 governments. It is uncertain how changes in a revised W O TU S rule will impact on local 909 governments and their local efforts to improve access to clean water. 910 911 4* Section 319 and Other Grants-lt is uncertain as to how the determination of W O TU S will impact 912 grants to states and communities. A grant may be given a priority if given to protect a W a te r of 913 the U.S. It is uncertain how that would impact states and communities. 914 915 4* The Coastal Zone Management Act (CZMA) of 1972 provides for the management of the 916 nation's coastal resources, including the G reat Lakes, administered by the National Oceanic and 917 Atmospheric Administration (NOAA). The goal is to ``preserve, protect, develop, and where 918 possible, to restore or enhance the resources of the nation's coastal zone." The NatiSnal Coastal 919 Zone Management (CZMA) Program aims to balance competing land and water issues through 920 state and territorial coastal management programs managed through state and local Coastal 921 Zone permits. These CZMA Programs wor< in tandem with the many tools of the C W A including 922 Section 4 0 4 . The Economic Analysis should include an assessment of the economic impact to coastal 923 resources and wetlands, including an economic impact analysis to water dependent industries such 924 as fishery (salmon and seafood industry), tourism, and other water dependent industries. For 925 exam ple, in the Puget Sound region, fish hatchery and harvest operations reeled in about $1 8 926 million to tribal persona! income. In areas where the average annual per capita income is around 927 $1 0 ,0 0 0 , a decline in the availability of healthy fish can significantly impact the economies of 928 these communities. (LGAC Drinking W ater Report). An exam ple, the LGAC worked with is 929 evaluating the impacts of the Deepwater Horizon Spill to local governments in the Gulf of Mexico. 930 The Gulf fishing and tourism industries produce $3.5 - $4.5 billion a year. Without adequate 931 federal C W A authorities in place other potential impacts could occur, having deleterious impacts 932 to local economies and natural resources. 933 934 r- Question 5- What additional information can you provide from a local government 935 perspective that EPA should be aware of? 936 937 938 DEFINITIONS 939 940 941 Clear definitions are critical for the revised W O TUS rule. The LGAC fully supports and endorses EPA's 942 efforts for clarification of `W aters of the United States'. These improvements are long overdue. The 943 LGAC highlights clarity in definitions, which is critical for the revised rule. W hile the LGAC does not have 944 specific language recommendations for all of the definitions of a revised rule, the LGAC offers the 945 following for the EPA to consider including, redefining or clarifying in the rule. 946 947 948 949 Page 29 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00030 IPA's Local Government Advisory Committee's 950 Recommendations: 951 The LGAC puts forward the following definitions brought forward to consider in the 20 17 W O TUS Rule. 952 H 953 l j EPA should, where appropriate, use definitions that are used consistently across all of the federal 954 agencies, e.g. EPA, Army Corps of Engineers, Federal Emergency Management Agency, Department of 955 Agriculture, U.S. Geological Survey and U.S. Forest Services. 956 H 957 k j EPA should task an Interagency Workgroup to develop a glossary of definitions and publish this 958 Interagency Glossary of Terms, following public review. n 959 960 l ^Definitions should be practical, written in plain English, and be enfg||lpl||||||:: 961 n 962 .. ..The LGAC recommends that narrative descriptions with examples be provided to augment the 963 definitions, as well as pictures, where this could achieve greater clarity. 964 H 965 k. jlh e public should have the opportunity to comment on refi|i||d ili|ifions. 966 n 967 l jThe following terms, among others, should Itedefined concisely d lllllvith clarity: `other waters', 968 `adjacent' and `upland'. Furthermore, the LGAC recommends `upland' be defined based upon exclusion of 969 what it is not. n 970 971 l jThe LGAC recommends that EPA consider the following when defining these terms: 972 973 974 Wetlands 975 4 The current definition of wetlands should be used: "areas that are inundated or saturated by 976 surface or ground water at a frequency and duration sufficient to support and that under normal 977 circumstances do support a prevalence of vegetation typically adapted for life in saturated soil 978 conditions. W etlands generally include swamps, marshes, bogs and similar areas." 979 980 Floodplains 981 4 The definition of the Interagency Taskforce on Floodplains should be used: " Floodplains include 982 low-lying areas adjacent to and the water bodies of streams, rivers, lakes, estuaries, and coastal 983 zones that are inundated or may become inundated as a result of changing conditions." The 984 definition of floodplains should take into account movement of flood lines due to extreme 985 weather events. 986 987 Riparian area 988 4 The LGAC recommends that riparian areas be defined as "an area bordering a water where 989 surface or subsurface hydrology directly influences the ecological processes and plant and 990 animal community structure in that a re a . Riparian areas are transitional areas between aquatic 991 and terrestrial ecosystems that influence the exchange of energy and materials between those 992 ecosystems." 993 994 Floodway Page 30 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00031 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 IPA's Loot! Government Advisory Committee's 4* `Floodway' should be defined as a flood course within the banks or within a canyon where water would be expected to flow under normal circumstances. Ditches 4* A clear definition of `ditch' should be provided in the proposed rule. 4 The following Google Dictionary definition of `ditch': a "narrow channel dug in the ground typically used for drainage". Examples listed are trench, croft, channel, dike, drain, watercourse conduits. [SCAS to include strike language] Significant Nexus 4- The most important definition contained within the proposed rule and at the heart of jurisprudence in the issue of W aters of the U.S. It is uncertain how `significant' nexus would be interpreted so the Committee recommends ERA describe significant nexus such that it is in plain English, with specific terms and examples. 4 The agency should consider all three parameters of water quality "the chemical, physical, and biological integrity of w ater" as criteria for significant nexus'. Likewise, the I..GAC does not agree that only one of these features be used as the benchmark, but that all three parameters of chemical, physical and biological integrity of a water body are all equally important. 4- The LGAC does not agree with the use of the term "significant effect" and also recommends language of "insignificant or speculative-'' should not be used. 4- EPA charged the Science Advisory Board with interpreting significant nexus and connectivity based on the best science availab le. The LGAC Is uncertain as to how the revised rule will make benefit of these important and critical definitions; however, the findings may be important to factor into a revised rule. (G AC 2014 Report) Streams and Tributaries Tributaries s4- A d ear definition of `tributaries' be Included in the proposed rule using clarifying examples. Streams 4 The revised rule should define the term " rain dependent stream" . An example of a stream that is not rain dependent be provided. ENVIRONMENTAL JUSTICE The LGAC would like to assure that a ll, but especially EJ, small, rural and tribal communities have access to safe drinking water and these water sources protected and made accessible. (For example, Sierra Club v. EPA 18cv3472 NDCA Tier 10 Page 31 ED 002061 00067988-00032 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 IPA's Local Government Advisory Committee's disproportionately low income communities do not have access to drinking water and source water is the only source of water). EJ Communities: 4 Must have regulation and enforcement that is coordinated among all levels (federal, state and local) to assure we protect water now and for our future generations, since water is life. 4 Must have protections against current contaminants but, as well, engage the scientific community to preserve safe drinking w ater, and recreational waters from new and emerging contaminants. EJ communities and Tribal communities depend on clean and safe water for their food supply, as well. 4 Need to have clearly defined W O TU S, what they are and engage E.i communities to better understand protection of these valuable watersheds and bodies of water. 4 Look to local communities to find local solutions. W ater infrastructure resources, including clean and safe source water, are needed for EJ communities to ensure safe and accessible drinking water. 4 Must have assurances that for all issues of W O TUS that EJ communities are included in any economic analysis to assess cumulative risks for the lack of safe drinking water and/or for being exposed to contaminated water (lead, mercury). 4 Need to be integrated in urban and rural planning In coordination with state and federal partners for Flood control impacts of a narrow C W A interpretation. Recommendations: H l j The revised W O TU S rule should serve as another important tool towards advancing clean safe drinking water for all communities throughout the country, but especially for EJ, small, rural and tribal communities. 1070 1071 1072 1073 1074 n l jThe revised W O TU S rule must include protections for the access of reliable, clean and safe drinking water especially for disproportionately affected low income EJ communities (who alread y have significant health disparities) and vulnerable populations across the country. n i. jThe revised W O TU S rule should protect communities against downstream impacts of agricultural runoff, sewage, industrial waste, mining, flooding and improper disposal of medical waste. 1075 1076 1077 H k jThe revised W O TU S rule must assure protection of water bodies from contamination that can significantly harm the health of a community. Page 32 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00033 1078 1079 1080 IPA's Loot! Government Advisory Committee's > Question 6- Are there other issues the agencies should consider which would help ease the regulatory burden for implementation of WOTUS for state, local and tribal government? 1081 1082 1083 1084 1085 1086 10 8 7 1088 1089 1090 1091 1092 1093 1094 1095 I 096 1097 1098 1099 I I 00 11 01 11 02 11 03 11 04 I 105 I I 06 11 07 1108 11 09 1110 1111 1112 1113 1114 1115 1116 1117 1118 1119 1120 1121 11 22 11 23 11 24 1125 1126 The LGAC believes that clear boundaries of W O TU S jurisdiction and clear exemptions are crucial for the support of local governments. Clear boundaries provide for more equitable and predictable permitting and also for better protection of our water resources. (LGAC 2 014 Report) The LGAC concludes, based upon the testimony that we heard and the analysis of the Committee, that a revised rule can significantly clarify the historic confusion and uncertainty resulting from conflicting case law and Supreme Court decisions. (LGAC 201 4 Report) In 2 0 1 4 , the LGAC heard a broad level of concerns raised by municipal associations and county governments concerning MS4s. The LGAC is uncertain of what the regulatory impact will be on MS4s as a revised rule is currently not written. MS4s and green infrastructure are foundational to the continuum of care that is being implemented at the local level to improve water quality. (LGAC 2014 Report) Much of the uncertainty of MS4s (in 201 4), was that stormwater and green infrastructure is centered on whether these collection systems or portions of the systems would be required to meet State W ater Quality Standards (W Q S) under Section 303(d) or potentially a total maximum daily load (TMDL) because they will now be considered a "W ater of the United States." W Q S and TMDL were not designed for this application so application within a collection system seems not warranted. W Q S define goals for a water body by designating its uses and setting criteria to protect those uses, but there is no established designated use for MS4s. Without a designated use, the default is "fishable/swimmable," unless the state demonstrates that it is not attainable for one of six particular reasons, none of which is because the waters serve as stormwater conveyances. A pending EPA proposed rule on water quality standards could make use designation analyses more stringent (i.e., by requiring a "highest attainable use" presumption). Also, if it is not deemed jurisdictional under Section 404 it will likely need a Section 402 permit and subject to W Q S. (Goodmann Letter) There could be potential impacts to wastewater systems and NPDES permitting related to these systems. Because of the exclusion language, the Agency did not seem to analyze the impact to wastewater systems but some cities have raised questions whether some part of combined sewer systems or other aspects of a wastewater treatment systems would be considered within the jurisdiction of the EPA, based upon the W O TUS rule. (Goodmann Letter) Many communities alread y heavily focus on water quality programs and projects; these communities should be encouraged and incentivized to do more. A revised W O TU S rule should recognize that much of the action towards cleaner water happens at the local level. High performing local agencies should be noted as following best practices and afforded a relaxed regulatory environment in those circumstances where water quality objectives are met and exceeded. (LGAC 201 4 Report) The LGAC believes that making jurisdiction calls of what is `exempt' and what is not in a timely fashion is critical to protecting water resources and providing predictability to state and local governments. The LGAC believes that easily accessible predictive tools need to be developed and utilized to speed this process. (LGAC 20 14 Report) Page 33 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00034 1127 1128 11 29 11 30 1131 11 32 11 33 I 134 I I 35 I 136 1137 I I 38 11 39 1 14 0 1141 1142 1 14 3 1144 1145 1146 1147 1148 1149 1150 1151 1152 1153 1 15 4 1155 1156 1157 I 158 1159 1160 1161 I I 62 11 63 11 64 11 65 11 66 11 67 1168 11 69 1170 IPA's Local Government Advisory Committee's nRecommendations: l jThe LGAC recommends that the use of State General permits be expanded to reduce the regulatory burden and also be used for smaller projects with minimal impacts. It could also be used to address regional and state specific activities and special water bodies. Under Section 404(e) of the Clean W ater Act, the U.S. Army Corps of Engineers can issue general permits to authorize activities that have minimal individual and cumulative adverse environmental effects. Nationwide permits can authorize a wide variety of activities such as mooring buoys, residential developments, utility lines, road crossings, mining activities, wetland and stream restoration activities, and commercial shellfish aquaculture activities. All permits, whether individual or general, must be reissued every five years. n l jThe LGAC recommends that EPA clearly articulate jurisdictional waters in an outreach plan which, in plain English, describes these areas with a clear statement of why they are in need of protection. This will provide local governments with more certainty and assurance in communicating the rule to their communities. (LGAC 201 4 Report) n l jThe LGAC highly recommends explicitly specifying when ditches would be considered jurisdictional. (LGAC 2 014 Report) n i. ..The LGAC recommends that manmade conveyance components of MS4s be exempt from W aters of the United States. This includes manmade green infrastructure, roads, pipes, manmade gutters, manmade ditches, manmade drains, and manmade ponds. (LGAC 2014 Report) n L jThe LGAC recommends that natural conveyance components of MS4s are included in W aters of the United States. This includes natural wetlands and associated modifications to natural wetlands. (LGAC 2014 Report) n l jThe LGAC recommends that green infrastructure projects be exempt from W O TUS and that they should be Incentivized to protect water resour ces. (LGAC 2014 Report) H k jThe LGAC recommends that there be some criteria which exempt certain activities in `W aters of the U.S'. for public safety and hazards. This is particularly critical in flood prone areas and for disadvantaged communities in floodways that may need to have emergency relief quickly and rapidly. (LGAC 2014 Report) H k jlh e LGAC recommends that EPA work to identify regional areas where jurisdictional determinations could be problematic in terms of sea level rise and where groundwater and surface flow intermix. For exam ple, it is unclear how the state of Florida, with so much land area nearly at sea level, will be categorized. In this specific region, conceivably all waters could potentially be jurisdictional. The LGAC recommends that specific guidance be developed to address and classify these areas with region-specific criteria to assess jurisdictional determinations. (LGAC 2014 Report) n l jThe LGAC recommends that EPA, working with the Corps of Engineers, develop a tool for use by local governments which a permittee can use to assess their own jurisdictional status. For exam ple, this could Page 34 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00035 1171 1 172 1173 1174 1175 1176 1177 1178 1179 1180 1181 I 182 I I 83 1184 11 85 11 86 11 87 11 88 11 89 I 190 I I 91 11 92 1193 1194 1195 1196 1 19 7 I 198 I I 99 1200 1201 1202 1203 1204 1205 1206 1207 1208 1209 1210 1211 1212 IPA's Loot! Government Advisory Committee's involve a simple categorical, printable questionnaire in a decision tree framework with questions aimed with an outcome of `yes', `no' or `m aybe'. The LGAC recommends this method be computerized and developed as a smartphone application which yields a simple predictive outcome. (LGAC 201 4 Report) H k. The LGAC recommends that EPA work directly with stormwater associations to provide guidance to best address MS4s, stormwater controls, and their jurisdictional determinations. (LGAC 201 4 Report) n k jThe LGAC recommends that EPA look to stormwater experts and the practical advice that stormwater professionals can lend to a proposed W O TU S rule that the EPA is considering for W aters of the U.S.' (LGAC 2 014 Report) n k jThe LGAC recommends addressing how mining impoundmentsflhorrow pits a h |i|i||in g s ponds will be addressed within jurisdiction of W O TU S. (LGAC 20 14 Report) H k jlh e LGAC recommends that regional and local technical manuals as well as other communication tools (e.g. checklists, smartphone apps, etc.) designed to account for geographic differences in each EPA region be developed to assist with jurisdictional calls. (LGAC 201 4 Report) k jThe LGAC recommends that EPA provide planning maps at the state level which could be used as a planning tool to ascertain jurisdictional probability with high certainty. Such mapping would include the Hydrologic Unit Codes (HUC) for w aterw ays. (It is presumed that all w aterw ays with a designation of HUC-1 2 or less will be included in W O TUS.) (L G /ll|||0 1 J llif S o r t ) ..... IMPLEMENTATION The LGAC heard strong concerns (in 2014) regarding implementation, especially from local governments. Several local agencies reported uncertainty in interpretation as well as uncertainty in time and cost to undertake the permitting process. The rule language must be consistently interpreted by all parties including the EPA, the US Army Corps of Engineers and local agencies. The rule should stipulate responsiveness of permitting agencies. Otherwise, the LGAC is concerned that a revised rule could further delay permits at the local level. (LGAC 201 4 Report) Recommendationst H k jlh e LGAC recommends that a revised rule stipulate time frames for permit review and jurisdictional determinations. Time frames such as 60 to 90 days to obtain a permit would be well-received at the local level. (LGAC 2014 Report) n l jThe LGAC recommends that EPA more clearly identify how Preliminary Jurisdictional Determinations would be processed to avoid unnecessary permit delays. (Goodmann Letter) Sierra Club v. EPA 18cv3472 NDCA Tier 10 Page 35 ED 002061 00067988-00036 1213 1214 1215 1216 1217 1218 1219 1220 1221 1222 1223 IP's Locai Government Advisory Committee's n L jih e LGAC recommends that EPA Administrator work with the Chief of the US Army Corps of Engineers to determine a process to reduce the issue of permitting delays of Section 4 0 4 permits. These delays are a significant and a costly issue for local governments. (LGAC 20 14 Report) n t. jThe LGAC recommends that state agency staff be utilized to make jurisdictional calls and work in cooperation with local districts with subject matter expertise such as county-based Conservation Districts or water management districts (e.g. Florida W ater Management District). These local agencies can work together with the Corps to streamline permitting. (LGAC 20 14 Report) n k. jThe LGAC recommends that EPA regionalize wetlands delineation manuals to take into account regional and local variability of vegetation, hydromorphology and hydroperiods. (LGAC 20 14 Report) 1224 1225 1226 1227 1228 1229 1230 1231 1232 1233 1234 1235 1236 1237 1238 1239 1240 1241 1242 1243 1244 1245 1246 1247 1248 1249 1250 1251 1252 1253 H k The LGAC recommends that State agencies be delegated the authority to make jurisdictional determinations. These determinations could be certified by the ERA and Corps Districistaff. Potentially, private sector firms and/or individuals could be certified to make these determinations. This could relieve overburdened federal agencies and accelerate the determination/permit process. H k a EPA and the Corps should encourage and provide incentives for States and Tribes to identify and protect significant state or unique waters such as sources for drinking water to protect. FI k EPA and the Corps should provide mapping of jurisdictional waters (8-Digit HUC). It should also be accessible by zip code and availab le online. n k The LGAC recommends that EPA work further with the Committee to develop a cohesive strategy to address local tools for stream and tributary protection so that it does not interfere with local governments protecting and maintaining water resources for its citizens and communities. For exam ple, many local governments have zoning ordinances and coastal management plans that are protective of streams, riparian areas, and sensitive wetland areas. It is unclear how a revised W O TUS rule will affect our ability at the local level to protect our significant ecological areas. (LGAC 2014 Report) n k jThe EPA should work with local communities to utilize the regulatory tools that the Clean W ater Act (CW A) and the Safe Drinking W ater Act (SDWA) provide in order to protect source w ater, especially for low-income, minority, rural and tribal communities where this threat remains. (LGAC Drinking W ater Report 201 6) F k a The LGAC strongly recommends that the EPA continue to explore how the SDW A and the C W A could be coordinated to better protect source water and our nation's water resources. In addition, the LGAC recommends that the EPA coordinate a Memorandum of Agreement with the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) to explore w ays to reduce agricultural runoff and improve soil health. (LGAC Drinking W ater Report 2016) Page 36 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00037 1254 1255 1256 1257 1258 12 5 9 1260 1261 1262 1263 1264 1265 1266 1267 1268 1269 1270 1271 1272 1273 1274 1275 1276 1277 1278 1279 1280 1281 1282 STATE ASSUMPTION O F SECTION 40 4 iP A 's Loot! Government Advisory Committee's Under current regulations, states and some tribes may seek delegation to implement C W A 4 0 4 which governs dredge and fill activities in wetlands and other waters. This C W A assumption allows a state or tribe to regulate those waters and to take jurisdictional responsibility to condition, approve or deny dredge and fill permits in lieu of the federal Section 4 0 4 program administered by the Corps and ERA. The state or tribal program must be approved by the EPA and the Corps of Engineers. States and tribes play a significant role in implementing C W A Section 404 Program through assumption and to fully integrated and comprehensive water program addressing the full range of state, tribal, and C W A requirements. Assumption allows for flexibility, less time constraints and the ability to integrate state and local water quality objectives. The State of Michigan has received delegation authority and the LG AC was briefed on their program. Under the Michigan program, the permitting process is more streamlined and has incorporated other state statutory programs like C W A 401 certifications, dam safety and other state regulatory programs. The averag e time of the permitting process is 21 d ays.7 Based on the Michigan exam ple, the LGAC believes that states may more effectively administer the Section 4 0 4 program, especially in addressing regional issues. States can more effectively interact with local governments, businesses, agriculture and private landowners. (LGAC 2014 Report) Recommendations: FI l jThe LGAC believes that State Assumed C W A and tribal-led programs may provide substantial costsavings in time and money and should be investigated further. (LGAC 2014 Report) FI k jThe LGAC recommends that guidance be developed to facilitate State Assumption of the Section 404 program. 1283 1284 1285 1286 1287 1288 1289 1290 1291 1292 1293 1294 1295 L jin order for state assumed programs to be successful, adequate resources must be made availab le and comparable water quality protections must be adopted by the state or tribal government. Despite these perceived barriers, the LGAC believes this is a highly worthwhile approach. Incentivizing the delegation program could achieve a strong return on investment. (LGAC 2014 Report) n j Loca I agencies may also be more receptive to a revised W O TUS rule if it is a state-run program which can be more responsive to local and regional issues. (LGAC 2014 Report) FI k j The LGAC strongly suggests federal incentives for States and Tribes to assume the C W A Section 404 program. These federal incentives should also provide technical, financial and staffing resources to assume the C W A 4 0 4 program. (LGAC 20 14 Report) "W etlands Protection." Michigan Department of Environmental Quality, www.mi.gov/wetlands. Sierra Club v. EPA 18cv3472 NDCA Tier 10 Page 37 ED 002061 00067988-00038 1296 1297 1298 1299 1300 1 301 1302 1303 1304 1305 1306 1307 1308 1309 1310 1311 1312 1313 1314 1315 1316 1317 1318 1319 1320 1321 1322 1323 1324 1325 1326 1327 1328 1329 1330 1 331 1332 1333 1334 1335 1336 1337 1338 1339 1340 1 341 1342 IPA's Local Government Advisory Committee's ENFORCEMENT The LGAC believes that enforcement will be important in implementing the C W A programs to follow a revised rule. It is not possible to ascertain the impacts of enforcement on local governments without a revised rule currently in place. The LGAC also believes that clarified definitions contained within a revised W O TU S rule will be critical to effective and equitable enforcement of the rule. (LGAC 2014 Report) Recommendations: n l jThe LGAC recommends that flexibility is important within the regulatory context so that conservation practices can be considered nationwide and be consistent, particularly on agricultural lands. (LGAC 2014 Report) n i. jThe ERA should work collahoratlvely with state regulators to reduce punitive approaches and increase facilitative solutions. G enerally, communities facing fines and citations are alread y struggling with compliance. Fines rarely improve water quality; fines only reduce the local resources availab le to achieve compliance. A collaborative approach can be most effective in reaching water quality goals. (LGAC Drinking W ater Report 2016) n k. jThe LGAC recommends that ERA work with state and local governments once a revised W O TU S final rule is developed and issued regarding enforcement options, (LGAC 2 0 14 Report) LOCAL SOLUTIONS -INTEGRATED PLANNING The LGAC believes that the C W A has had tremendously positive impacts on the rivers and streams of the United States which in turn has led to economic prosperity and well-being for our nation's communities. Communities and local governments are spending millions of dollars to improve our w aterw ays and drinking water supplies. Some states even have more protective water quality standards than those required by federal law. The LGAC noticed a general feeling of distrust that the 201 5 rule generated. Further clarity on definitions, jurisdiction and exemptions should further aid Integrated Planning. However, it is uncertain how a revised W O TUS rule will factor in Integrated Planning efforts in general. Furthermore, there is a great deal of uncertainty how C W A 4 0 4 and the rule will impact local ordinances and how it can be integrated into state, tribal and local water quality plans. (LGAC 2014 Report) Recommendations: H k jThe LGAC recommends that EPA work with cities and communities on Integrated W ater Quality Planning that will incorporate all of the Clean W ater Act provisions into local plans, including Section 4 0 4 . This planning process is alread y ongoing and the LGAC looks forward to these proactive approaches to address water quality concerns while providing green infrastructure and multi-use amenities to serve our public and create jobs. (LGAC 2014 Report) Page 33 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00039 1343 1344 1345 1346 1347 1348 1349 1350 IPA's Loot! Government Advisory Committee's n L jih e LGAC recommends that EPA incentivize local, tribal and state agencies to engage in Integrated W ater Quality Planning and develop policies, programs and projects that further the goals of the Clean W ater Act. The rule should not in any w ay discourage local efforts to improve water quality through projects and programs. (LGAC 2014 Report) r Question 7- What should the agencies consider in communicating the final rule to state, local and tribal governments to help them fully understand these regulatory changes and implementing them efficiently and most cost-effectively? 1351 1352 1353 1354 1355 1356 1357 1358 1359 1360 1 361 1362 1363 1364 1365 1366 1367 1368 1369 1370 1 371 1372 1373 1374 1375 1376 1377 1378 1379 1380 1 381 1382 1383 1384 1385 1386 The LGAC believes that clear communication and outreach is essential at every level of government once a revised rule is developed. There are many misconceptions and uncertainties regarding EPA, the Army Corps of Engineers, and a revised W O TU S rule's impact on C W A programs. In learning from the W O TU S 201 5 rule, we heard concerns throughout the outreach process, and noted these concerns about the mixed messages relating to the economic impacts. The LGAC recommends that the EPA share the LGAC findings and recommendations with the state environmental commissioners, state agricultural directors, state water directors, and other state officials. (LGAC W ater Report 2014) Recommendations: n l jThe LGAC recommends that a Fact Sheet (one-page) be developed laying out the clear messaging of the revised W O TU S rule. It should also have graphics and a side-by- side comparison of what the rule currently is and what the revised rule proposes. This sheet should be developed to enhance public understanding of the rule. (LGAC W ater Report 201 4). FI k j The LGAC believes it is important that EPA is aw are of the potential for mixed messages in their communication with local agencies regarding the economic impact of a revised rule. Based on the Workgroup's 201 4 field meetings, local agencies were skeptical of EPA's strong statement that the proposed rule did not change the definition of the `W aters of the U.S.' Although this statement may have been factually correct, what likely occurred in the field is that local agencies may have experienced a permitting environment in direct contrast to this statement, as jurisdictional assertion was expected to increase. It is important that the EPA and the US Army Corps of Engineers do not understate the impact the rule may have on local jurisdictions. Also, the economic analysis should include all Clean W ater Act programs. (LGAC W ater Report 2014) PH l jThe LGAC recommends that the EPA continue to evolve and improve its communication with local governments, as well as EJ, agricultural and small communities with respect to the `W aters of the United States.' FI k jlh e LGAC recommends that EPA develop Fact Sheets to communicate the proposed changes in the W O TUS rule designed specifically for locally elected officials. Page 39 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00040 1387 1388 1389 1390 1 391 1392 1393 1394 1395 1396 1397 1398 1399 1400 1401 1402 IPA's Local Government Advisory Committee's n l jih e EPA should work with State Municipal Leagues and other intergovernmental organizations to distribute communication materials for local governments. (LGAC Drinking W ater Report 201 6) M b. j In EPA's annual or biannual meetings with State Environmental Commissioners, State Public Health Directors and State Agricultural Directors, the EPA should convene a special forum on `W aters of the U.S.' on ways to assist local governments, EJ communities and rural communities. (LGAC Drinking W ater Report 2016) Question 8- The Workgroup will also develop recommendations on how the EPA can better work with local governments and engage local governments on issues such as: What additional regulatory issues could be revised or clarified to more effectively to help local governments understand how this rule would apply? Are there additional policy discussions that could help address local questions about implementation, in agricultural and rural small communities? Are there other considerations such as ditch maintenance, stormwater management or green infrastructure? 1403 1404 1405 1406 1407 1408 1409 1410 1411 1412 141 3 1414 1415 1416 1417 1418 1419 1420 1421 1422 1423 1424 1425 1426 1427 1428 1429 1430 1431 8.a. What additional regulatory issues could be revised or clarified to more effectively to help local governments understand how this rule would apply? Recommendations: FI k. jlh e LGAC recommends that EPA should consider the impacts of a revised rule on NPDES and W astew ater systems. (Goodmann Letter). n i. jThe LGAC recommends that EPA consider a bright-line on `other waters' to provide more clarity on what is jurisdictional under the C W A . For exam ple, it would be well-advised that EPA determine with accuracy what areas are considered to be state or local ecologically significant areas such as source water and drinking water sources, and that states should provide a listing of these areas. (LGAC 201 4 Report) 8.b. Are there additional policy discussions that could help address local questions about implementation, in agricultural and rural small communities? The Small Community Advisory Subcommittee (SCAS) of the LGAC investigated in greater depth the agricultural related issues to a revised W O TUS rule. The SCAS had some observations from the testimony received. Also, several of the SCAS Members are also agricultural producers or work closely with the Conservation Districts. G enerally, at issue for the agricultural community in the 201 5 rule was the lack of clear definitions and the lack of clarity on exemptions. Agricultural issues remain an area where there is a great deal of uncertainty and confusion regarding W O TUS. The SCAS believes that the agricultural community presents the greatest challenge but also Page 4 0 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00041 1432 1433 1434 1435 1436 14 3 7 1438 1439 1440 1441 1442 1443 1444 1445 1446 1447 1448 1449 1450 1451 1452 1453 1454 1455 1456 1457 1458 1459 1460 1461 1462 1463 1464 1465 1466 1467 1468 1469 1470 1471 1472 1473 iP A 's Loot! Government Advisory Committee's offers the greatest receptivity to recognizing the importance of conservation and protection of our natural resources. Agriculture is a water-dependent business and cannot flourish without adequate supplies of clean and safe water. Recommendations: n l -The LGAC recommends that EPA develop a " rural strategy" which would address the issue of `W aters of the U.S.' on agricultural lands and rural communities. This rural strategy could provide more comprehensive planning and resources to address the full range of water quality and community issues associated with rural America and disadvantaged small communities. FI l -The LGAC recommends that there be consistency between Natural Resources Conservation Services (NRCS) and EPA on interpretation of normal farming practices and that a clear definition of normal farming practices be included. Furthermore, the LGAC recommends a manual of agricultural exemptions be developed and published. n l -The LGAC recommends that the jurisdiction of farm ponds, irrigation ditches and ponds, artificial lakes and ponds created by excavation and/or diking dry land for purposes of stock watering, settling basins be exempt from W O TUS. FI h. -The LGAC recommends that floodplains be established at a level of 50- year, 100- year and 500 year for agricultural purposes. FI i. -The LGAC was made aw are of the State of Tennessee's W ater Quality program, and the LGAC recommends that the EPA investigate this approach in regard to jurisdictional waters on agricultural lands. FI l -The LGAC recommends that EPA facilitate better working relationships with the Corps, especially in regard to agricultural lands. FI i. -The LGAC recommends that dams and drainages designed for fire prevention be exempt from WOTUS. FI >. -The LGAC recommends that settling ponds and basins be determined on a regional case- by -case specific basis. FI k -The LGAC recommends expanding the Conservation Reserve program to enhance protection of riparian areas and wetlands. fJ l -The LGAC recommends that EPA continue to work with NRCS to incentivize farming practices that improve water quality. Page 41 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00042 1474 1475 1476 1477 1478 1479 1480 1481 1482 1483 1484 1485 1486 1487 1488 1489 1490 1491 1492 1493 1494 1495 1496 1497 IPA's Local Government Advisory Committee's Prior Converted Croplands The Clean W ater Rule excludes Prior Converted Croplands (PCC) from the definition of "waters of the United States." (existing since 1992). The Rule also provides that even if another federal agency has deemed land to be PCC, the final authority regarding C W A jurisdiction remains with the EPA. Other provisions such as Swampbuster also incorporates a PCC exception but are administered by the USDA under the Food Security Act of 1985. The Act regulates federal benefits for farmers and includes provisions designed to discourage farming on converted wetlands. Under the Act, farmers who have altered a wetland after November 28, 1990, to make crop production possible are generally prohibited from receiving USDA-FSA-administered commodity, disaster, and conservation program benefits. Likewise, farmers who plant crops on wetlands converted between December 23, 19 8 5 , and November 28, 19 9 0 , are ineligible for program payments. G enerally, drainage systems and other conversions in place before December 23, 1985, may continue in their existing form. The 20 14 Farm Bill also reinstated a requirement that farmers must comply with Swampbuster provisions to receive crop insurance premium assistance beginning in 2 0 15 . The NRCS is responsible for making wetland determinations for purposes of USDA farm program eligibility only. Once a certified wetlands determination is made (and given to the farmer via form NRCS-CPA-026), it is binding on the property. All determinations made after July 3, 1996, are automatically deemed "certified." Determinations made prior to that date may be considered certified if they meet certain conditions. If a certified wetlands determination exists, the NRCS may not issue a new determination, absent a request by the landowner and (1) a determination that natural changes have occurred to the topography or (2) an acknowledgment by NRCS that an error exists in the current report. It is uncertain how changes in the W O TU S rule will change the dates for PCC or Swampbuster provisions. 1498 1499 1500 1501 1502 1503 Recommendations: n l j A process for determining Prior Converted Croplands should be established with the new changes to the W O TUS rule. For exam ple, what date should the PCC be referred to. n l jO n agricultural lands, the Department of Agriculture should be given authority to make W O TUS jurisdictional determinations. (LGAC 2014 Report) 1504 1505 1506 1507 1508 1509 1510 1511 1512 1513 1514 1515 1516 n h. jThe LGAC recommends that normal agricultural practices be defined more effectively to achieve the desired results and to be accepted by the agricultural community. Normal farming practices are not limited to those listed and will change with advances in science and technology. H k jlh e LGAC recommends consistency of definitions among NRCS, EPA and other agencies involved in these issues. The SCAS believes that a glossary defining what agricultural exemptions are will be helpful. Specifically, the LGAC has heard a great deal of concern from Northern Minnesota where there are nontiled drainage ditches and also from agricultural communities in G eorgia. (LGAC 201 4 Report) n l jThe LGAC recommends more effective outreach to agricultural communities and small rural communities on a revised W O TU S rule. Page 4 2 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00043 IPA's Loot! Government Advisory Committee's Recommendations: FI k jlh e EPA should plainly state how W O TU S rulemaking will impact storm-water collection systems and clearly exempt those parts of the systems that ERA does not wish to include. (Goodmann Letter) 1517 1518 8.c. Are there other considerations such as ditch maintenance, stormwater management or green infrastructure? 1519 1520 1521 1522 1523 1524 1525 1526 1527 1528 1529 1530 1531 1532 1533 1534 1535 Rule language should not have broad inclusions and cities are concerned that jurisdictional calls will be dependent upon agency judgments and discretion for exclusions. The criteria need to be clear enough that cities do not have to either guess at application of a rule or wait for the agency to interpret a rule which creates uncertainty. It is unworkable for cities to rely on agency judgments and discretion for exemptions. There is a concern about the magnitude of the requests the agencies will be forced to address and the timeliness of the agencies' responses given any uncertainty of a new rule. Cities cannot be faced with significant delays to address critical storm-water infrastructure while waiting for agency action. Cities should be provided clarity by the agencies so that they can effectively plan and budget for the operation and maintenance of the storm-water collection systems without the uncertainty of the discretion of the agencies and when it will receive that agency judgment. In addition, without a specific exemption for MS4 systems including drains, roads, pipes, curbs, gutters, ditches and other components that channel runoff, as well as non-MS4 storm-water systems and features/components, EPA and Army Corps open the door for litigation and citizen suits that could determine that they are considered a "W aters of the U.S." and thereby subject to Section 404 permitting and state W a te r Quality Standards. (Goodmann Letter) 1536 1537 1538 1539 1540 1541 F k jThe EPA should exempt green infrastructure from jurisdiction and outline the Agency's definition of what is included within green infrastructure similarly as for agricultural practices for `normal farming practices'. (Goodmann Letter) 1543 1544 1545 1546 1547 1548 1549 1550 1551 1552 1553 1554 1555 1556 The LGAC heard extensive concerns that the US Army Corps of Engineers simply does not have enough resources 1o effectuate an efficient permit process now, or under a new rule, without additional resources. An ineffective permit process consumes scarce local, state and federal personnel and financial resources without achieving a value-added return on investment. A revised rule and the permitting process and implementation must recognize the scarcity of these resources such that results are optimized for the level of investment. (LGAC 2014 Report) Delays and additional permitting do not get calculated into a simplistic understanding of affordability of 2 percent of median household income (MHI), which the Agency utilizes to make determinations on significant cost impacts to local communities (Goodmann letter). Page 43 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00044 1557 1558 1559 1560 1561 1562 1563 1564 1565 1566 1567 1568 1569 1570 1571 IP's Locai Government Advisory Committee's Recommendations: n l jThe LGAC recommends that the EPA continue to coordinate with the US Army Corps of Engineers to ensure that the permit process is predictable and value-added. The proposed rule must be viewed in the context of how it will be implemented to validate that the resource protection outcome is balanced against the economic cost of the permitting process. Local, tribal and state agencies are at the front lines of achieving the goals of the Clean W ater Act. Engaging local agencies as collaborative partners in the conversation with EPA and the US Army Corps of Engineers regarding implementation can only improve the process and the desired water resources protection results. (LGAC 20 14 Report) n l jThe LGAC recommends that EPA better understand the cost and resource implications, especially to local, state and tribal agencies, before drafting a revised rule. Local agencies are very concerned about cost, which is exacerbated by the uncertainty in the permitting process. (LGAC 201 4 Report) 1572 1573 1574 1575 1576 1577 1578 1579 1580 1581 1582 1583 1584 1585 1586 1587 1588 1589 1590 1591 The Local Government Advisory Committee (LGAC) provides a strong connection between the EPA and the communities striving to provide clean drinking water and maintain healthy source water. The LG A C 's `W aters of the United States' 2 0 17 Report provides a series of recommendations that offer the EPA practical solutions to complex challenges based on the experience of local and tribal governments. The LGAC is confident that our concepts and approaches can assist the EPA in developing a regulatory framework that inspires communities to act in the interest of clean, safe and affordable drinking water. Many communities have alread y invested their resources in green infrastructure, integrated planning and innovation that advances the state of practice. Local, tribal and state governments are alread y leading clean water initiatives in their jurisdictions. EPA can utilize this experience, captured in the LGAC report, to develop clear, predictable, flexible and locally adaptable approaches to regulation. Thank you to the EPA Administrator and the EPA Team for their partnership with the LGAC in advancing the goal of clean, safe and affordable drinking water across the United States. Page 4 4 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00045 IPA's Loot! Government Advisory Committee's 1593 APPENDIX 1594 1595 1596 1597 1598 1599 1600 1601 1602 16 0 3 16 0 4 16 0 5 D iscla im e r: This R e p o rt re fle p iM p t w a s co n v||||f d u rin g the cil||e o f the L G A C m eetin g s. The C o m m ittee is n o t re sp o n sib le fo r a n y p o te n tia l in a ccu ra cie s th a t m & M p e a r in t h p o r t a s a re s u lf n fo rm a tio n c o n v e y e d . M o r e o v e r , the C o m m itte e a d v is e s th a t a d d itio n a l in fo rm a tio n so u rce s Blltilsy/ieillllsCfflses w h e re a n y h c e rn m a y e x is t a b o u t sta tistics o r a n y o th e r in fo rm a tio n . Sierra Club v. EPA 18cv3472 NDCA Tier 10 Page 45 ED 002061 00067988-00046 1606 1607 1608 1609 1610 161 1 1612 1613 1614 1615 1616 1617 1618 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00047 1619 1620 2 017 ROSTER LG A C AND SCA S MEMBERS 1621 Chair of LGAC 1622 1623 1624 1625 The Honorable Bob Dixson Mayor, Greensburg, KS Greensburg, KS 1626 Chair of SCAS 1627 1628 1629 1630 The Honorable Robert Cope Commissioner, Planning and Zoning, Salmon, ID Salmon, ID 1631 1632 LGAC AND SC A S MEMBERS 1633 1634 1635 1636 1637 1638 1639 1640 1641 1642 1643 1644 1645 1646 Region 1 Mr. Rodney Bartlett Town Administrator Peterborough, New Hampshire The Honorable Kim Driscoll Mayor, City of Salem Salem, MA The Honorable Miro Weinberger Mayor, City of Burlington Burlington, VT PA' s I ootSGovernment Advisory Committee's _ (SCS Only) 1647 1648 1649 1650 1651 1652 1653 The Honorable Jill Duson (Vice-Chair) Councilor, Portland, Maine Portland, Maine Region 2 1654 1655 1656 1657 Samara Swanston, Esa. Counsel to NYC Council Environmental Protection Committee, New York, NY New York, NY Page 4 7 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00048 1658 1659 1660 1661 1662 1663 1664 1665 1666 1667 1668 1669 1670 1671 1672 1673 1674 1675 1676 1677 1678 1679 1680 1681 1682 1683 1684 1685 1686 1687 1688 1689 1690 1691 1692 1693 1694 1695 1696 1697 1698 1699 1700 1701 1702 1703 1704 IP's Loei Government Advisory Committee's The Honorable D aw n Zimmer M ayor, Hoboken, NJ Hoboken, NJ The Honorable Manna Jo Greene County Legislator, Ulster County, NY District 19 Rosendale, NY Region 3 The Honorable Sal Panto, Jr. Mayor, City of Easton Easton, PA The Honorable Stephen T. Williams Mayor, Huntington, WV Huntington, WV Region 4 The Honorable Merceria Ludaood Commissioner, Mobile County Mobile County, AL The Honorable Johnny DuPree, Ph.D. Mayor Hattiesburg, MS The Honorable Kitty Barnes Commissioner, Catawba County, NC Terrell, NC The Honorable Hardie Davis Mayor, City of Augusta, GA Augusta, GA Ms. Susan Hann Director, Planning Palm Bay County Schools, FL Palm Bay County, FL Region 5 The Honorable Stephanie Chang State Representative- House District 6 State of Michigan 1705 The Honorable Victoria Reinhardt 1706 Commissioner, Ramsey County, MN Page 4 3 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00049 1707 1708 1709 1710 1711 1712 1713 1714 1715 1716 1717 1718 1719 1720 1721 St. Paul, MN IPA's Loot! Government Advisory Committee's The Honorable Elizabeth Kautz Mayor, Burnsville, MN Burnsville, MN The Honorable Karen Freeman-Wilson Mayor, Gary, IN Gary, IN Mr. Kevin Shafer. PE Executive Director, Milwaukee Metropolitan Sewerage District Milwaukee, Wl 1722 Region 6 1723 1724 1725 1726 1727 1728 1729 1730 1731 1732 1733 1734 1735 1736 1737 1738 1739 1740 The Honorable Mark Stodola Mayor, City of Little Rock Little Rock, Arkansas The Honorable Norm Archibald Mayor, City of Abilene, TX Abilene, TX Jeff Witte Secretary of Agriculture, NewMexico New Mexico Dr. Hector Gonzalez. MD Director of Health Department, Laredo, TX Laredo, TX 1741 Region 7 1742 1743 1744 1745 1746 1747 1748 1749 1750 Teri Goodmann Assistant City Manager, City of Dubuque Dubuque, IA The Honorable Tom Sloan State House Representative, State of Kansas Kansas 1751 Page 49 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00050 1752 IP 's Local Government Advisory Committee's Region 8 1753 1754 1755 1756 The Honorable Andv Beerman City Councilor Park City, UT 1757 1758 1759 1760 1761 1762 1763 1764 1765 1766 1767 1768 1769 1770 1771 1772 1773 1774 1775 1776 1777 1778 1779 1780 1781 1782 The Honorable Brad Pierce Council Member, City of Aurora, CO Aurora, CO Region 9 The Honorable Cynthia Koehler Board of Directors, Marin County Marin County, CA The Honorable David Bobzien City Councilmember At-Large - City of Reno Reno, NV The Honorable Mary Casillas Salas Mayor, City of Chula Vista Chula Vista, CA Scott Bouchie Environmental Management and Sustainability Director - City of Mesa Mesa, AZ The Honorable Ryan Sundberg Supervisor, Humboldt County, CA Humboldt County, CA 1783 Region 10 1784 1785 1786 1787 1788 1789 1790 1791 1792 1793 1794 Susan Anderson Director, Portland Bureau of Planning and Sustainability Portland, OR The Honorable Shawn Yanitv Chairman, Stillaguamish Tribe Arlington, WA 1795 1796 Page 50 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00051 1797 APPENDIX 2 iP A 's Loot! Government Advisory Committee's 1798 1799 ER A 'S LO C A L G O V E R N M E N T A D V IS O R Y C O M M ITTEE (L G A C ) D RAFT C H A R G E O N `W A T E R S O F THE LAST (W O T U S ) 1800 O V E R V IE W 1801 1 8@2i February 28, 2 0 1 7 , the President signed the Executive O rder on R e s to r in g th e R u le o f L a w ^ E d lis m , a n d E c o n o m ic G r o w th by 1 88viewing the "W aters of the United States" Rule (issued June 2 0 15).89The Executive Orde:g p | lli|||lc f io n to the Administrator and 1 8Sbt Assistant Secretary of the Army for Civil Works to review the final Clean W ater Rule fHIPR) an d |li||b lish for notice and comment 1 8 Qiiproposed rule rescinding or revising the rule." The E.O. also directs that EPA and the|Army "shall conii|il||nterpreting the term 1 8Q6ivigable waters' in a manner "consistent with Justice Scalia's opinion in Rapanos J U l i ! ! 1includes relativet/|i||manent waters and 1 8QJtlands with a continuous surface connection to relatively permanent waters. 1 8 0 S part of EPA's efforts to consult with state and local government officials,'l i l l i X o c a l G o v lllt p h t Advisory CorhtiflS'e (LGAC) will 1 8(jl9bvide its recommendations to the Administrator on revising the definition of <! i ! e :rs o f|||l|in it e d States" (WOTUS) and identifying 1 8l\Qiys to reduce the regulatory burden on local communities as well as balance th d |i||i|i||firo n m e n ta l protection. 1811 1 81 2 h e agencies intend to follow an expeditious two-step process^liiigFbitlii with the rule: 1813 1814 1815 1816 1817 1818 1) Establish the legal status quo by re-codifying the l|||la t io n t |||iP ii||i|i|||^ :f p r io r to issuance of the CWR now under the U.S. Court of Appeals for the Sixth C ir c u illilfa y s illld t rule. 2) Propose a new d e fin itiQ ||||iW d te fP ||i|e U.S. that \ / ||||} replace the 2015 CWR that reflects the principles outlined by Justice Scalia ( R a g || | plurality o |||||n ) . 1819 1820 1821 1822 1823 1824 1825 1826 The LGAC consists of 36 local, state d i ! i | | | B and appointed officials representing cities, parishes, counties, m unicipa!.i||i||ii|i||||j||||!;r local g b lliilju r is d it f iiiilllC a l officials are knowledgeable and provide unique perspectives QR:;iii!||(^||IP^I^irl^||^|i^|g:evised the LGAC has potential to engage other knowledgeable local officials w ith lillS fe valuable oh4lllf|ro und p l| || l| t iv e s and knowledge. Through this collaborative process, the chartered LGAC w iliiip n d e Administrator PF|i|fiyith e xp e d iliB s and meaningful advice relating to a revised "W aters of the U.S." rule. Overall, f i l ilp g l would be to develd|lltecommendations to the EPA for consideration on a revised rule. This advice and recommenddiilliicpme from an `on t|i|||ro u n d ' local government perspective which will assist the agency in providing the best means to com m B||l||e a revised ru le ip i! local officials. 1827 1828 1826AC Charge: 1830 1831 The LGAC will develop recommendations for the EPA to consider in developing approaches to a revised rule 1832 defining "waters of the U.S." that ensures that the nation's waters are kept free from pollution while at the 8 https://www.whitehouse.gov/the pres-office/2017 /02/28/presidential-exeuctive-order-restoring-rule-law-federalism-and-econornic 9 Rapanos v. United States, 5 4 7 U.S. 715 (2006) 126 Supreme Court 2 2 0 8 ; 165 L.Ed. 2d 159 Page 51 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00052 1833 1834 1835 1836 1837 1838 1839 1840 1841 1842 1843 1844 1845 1846 1847 1848 1849 1850 1851 1852 1853 1854 1855 1856 1857 1858 1859 1860 1861 1862 1863 1864 1865 1866 1867 1868 IP's Locai Government Advisory Committee's same time promoting economic growth and minimizing regulatory uncertainty. The following are specific charge questions and issues for the LGAC to consider: Charge Questions 1) How would you like to see the concepts of 'relatively permanent' and 'continuous surface connection' be defined? How would you like to see the agencies interpret 'consistent with Scalia'? Are there particular features or implications of any such approaches that the agencies should be mindful of in developing the step 2 proposed rule? 2) What opportunities and challenges exist for your locality with relying on Justice Scalia's opinion? 3) Are there other approaches to defining "waters of the U.S." that you would like the agencies to consider to providing clarity and regulatory certainty? 4) The agencies' economic analysis for step 2 intends to review programs under CWA 303, 311, 401, 402 and 404. Are there any other programs specific to your locality that could be affected but would not be captured in such an economic analysis? 5) What additional information can you provide from a local government perspective that EPA should be aware of? 6) Are there other issues the agencies should consider which would help ease the regulatory burden for implementation of WOTUS for state, local and tribal government? 7) What should the agencies consider in communicating the final rule to state, local and tribal governments to help them fully understand these regulatory changes and implementing them efficiently and most cost-effectively? 8) The Workgroup will also develop recommendations on how the EPA can better work with local governments and engage local governments on issues such as: What additional regulatory issues could be revised or clarified to more effectively to help local governments understand how this rule would apply? Are there additional policy discussions that could help address local questions about implementation, in agricultural and rural small communities? Are there other considerations such as ditch maintenance, stormwater management or green infrastructure? 1869 1 87CThe LGAC will provide a letter of recommendation to the Administrator to identify approaches to consider in a revised "W aters of 1 871he U.S." rule. The chartered LGAC will prioritize and summarize these issues in a report to the EPA that focuses on the charge issues. 1 872kfinal LGAC report will be conveyed to the EPA Administrator with a transmittal letter summarizing findings and recommendations. 1 873'his Report will be published on the EPA's website for LGAC. 1874 1875 Page 52 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00067988-00053 IP A 's Loot! Government Advisory Committee's 1 876April 26, 2017 - Executive Committee meets to discuss and approve the LGAC's Charge (Protecting America's W aters Workgroup) 1 87/Emd develops a work plan with timeline. 1 87/lay 3 - LG A C s Protecting America's W aters Workgroup meets to discuss charge (via teleconference). 1 8 7 % a y 18- LGAC's Protecting America's W aters Workgroup meets with National Intergovernmental organizations to discuss charge 1 88Qvia teleconference). 1 8 8 U u n e 7 - LGAC's Protecting America's W aters Workgroup meets to discuss charge (via teleconference). 1 8 8 2 u n e 29, 2017 -The LGAC meets in a public meeting (via teleconference) to review recommendationispn rescission of the 2015 CWR 1 883bnd revising the CW R. (Deliverable: Letter of Recommendation) 1884 1885 1886 1887 1888 1889 1890 1891 1892 1893 1894 1895 1896 1897 1898 1899 1900 1901 1902 1903 1904 Sierra Club v. EPA 18cv3472 NDCA Tier 10 Page 53 ED 002061 00067988-00054