ACWA Outreach Alert
Comment Letters Requested on EPA / Army Corps Proposal to Expand Clean Water Act Jurisdiction
The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a proposed rule on April 21, 2014, that would amend the definition of “waters of the United States” for the purpose of determining whether a water body is subject to Clean Water Act jurisdiction.
ACWA believes the rule would greatly expand jurisdiction of the Clean Water Act and adversely impact water agency operations. A work group convened by ACWA has prepared an extensive comment letter on the proposed rule. The letter can be found here<http://outreach.acwa.com/site/R?i=e8PPGSHpESR9C-sNMwf6xQ>. ACWA encourages individual member agencies to submit their own comment letters with agency-specific concerns before the Nov. 14, 2014, deadline.
ACWA believes that unless changes are made to the proposed rule, the following will become “waters of the United States” and subject to all the permitting requirements of the Clean Water Act:
* Water conveyance systems, including ditches.
* Water infrastructure (including construction, maintenance, and operation of infrastructure) adjacent to “waters of the United States.” This would include water recycling facilities, groundwater recharge basins, stormwater retention basins, and constructed wetlands.
A sample letter follows for use as a template.
Action Requested
ACWA is encouraging member agencies to submit comment letters on the proposed rule. To submit comments on the proposed rule, click the link below or email them to ow-docket@epa.gov<mailto:ow-docket@epa.gov> and include EPA–HQ–OW–2011–0880 in the subject line of the message.
Please send copies of your letters to ACWA by emailing to Abby Schneider at aschneider@sso.org
______________________________________________________________________________________________________________
Sample Letter
November 14, 2014
Donna Downing
Jurisdiction Team Leader, Wetlands Division U.S. Environmental Protection Agency Water Docket, Room 2822T
1200 Pennsylvania Avenue N.W.
Washington, D.C. 20460
Stacey Jensen
Regulatory Community of Practice
U.S. Army Corps of Engineers
441 G Street N.W.
Washington, D.C. 20314
Dear Ms. Downing and Ms. Jensen:
[Water Agency Name] appreciates the opportunity to provide comments on the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (collectively, “the Agencies”) proposed rule regarding Definition of Waters of the U.S. Under the Clean Water Act, Docket No. EPA-HQ-OW-2011-0880. This proposed rule, released on April 21, would amend the definition of “waters of the U.S.” and expand the range of waters that fall under federal jurisdiction. In addition to the comments herein, [Water Agency Name] urges you to carefully consider the comments submitted by the Association of California Water Agencies.
[Describe your agency here.][Water Agency Name] recognizes the important water quality improvements brought about by passage and implementation of the Clean Water Act (CWA).
In order to achieve our water quality and reliability goals, [agency name] needs predictability and certainty in determining if a water body is subject to jurisdiction of the CWA, and the Agencies need to be specific about the degree of regulation that accompanies that designation. Regulatory certainty is essential not only for water agencies to understand how to plan for and meet water quality objectives, but also protects water agencies from potential litigation for CWA violations. Unfortunately, the proposed rule does little to address these issues. Instead, it introduces new concepts, definitions and tests that would vastly expand the universe of waters defined as “waters of the United States.” To better balance the broad interest of the CWA in protecting the nation’s surface waters while not unduly interfering with the ability of water agencies to provide water, [Water Agency Name] recommends the following:
* Water conveyance systems, including ditches, should be excluded from the proposed definition of “waters of the United States.”
* Water infrastructure, such as recycled water facilities, groundwater recharge basins, stormwater retention basins, and constructed wetlands, adjacent to “waters of the United States” should be excluded from jurisdiction under the proposed rule.
[Use the following as appropriate]
- Concerns about water conveyance systems and ditches becoming “tributaries”
The definition of tributary in the proposed rule is so broad that numerous man-made, non-stream conveyances would become “waters of the United States” and subject to full spectrum of Clean Water Act permitting. The proposed definition of tributary would have broad implications for [Water Agency]. [Describe your system here.]
[If you operate canals or similar infrastructure:]
Under the proposed rule, [Water Agency Name] would be subject to all the permitting requirements in the CWA including needing to obtain a section 404 dredge and fill permit when, for example maintenance work is conducted on our canal? [Water Agency Name] recommends water conveyance systems be excluded from the definition of tributary.
[If you operate ditches:]
The proposed rule includes limited exemptions for ditches. Ditches that “are excavated wholly in uplands, drain only uplands, and have less than perennial flow” and ditches that “do not contribute flow either directly or through another water to a traditional navigable water, interstate water, the territorial seas or an impoundment of a jurisdictional water” are excluded and not considered tributaries. This approach of simultaneously classifying ditches as tributaries while carving out narrow exemptions creates unnecessary complexity and uncertainty. The exemptions are use-specific, while ditch uses are varied. Without clarity, tens-of-thousands of ditch miles will become jurisdictional under the proposed rule.
[Water Agency Name] recommends ditches should be excluded from the definition of tributary. Instead ditches should continue to be regulated under existing CWA provisions where appropriate. Additionally, regulatory guidance RGL No. 07-02, “Exemptions for Construction or Maintenance of Irrigation Ditches and Maintenance of Drainage Ditches under Section 404 of the Clean Water Act” should be affirmed and retained.
- Concerns about adjacent water infrastructure becoming a “water of the US”.
The proposed rule revises the existing jurisdictional category of “adjacent wetlands,” which limits consideration to only wetlands, to include all “adjacent waters.” The breadth of this category of adjacent waters will result in a wide range of water infrastructure becoming jurisdictional. [Water Agency Name] does not believe it is EPA’s intent to regulate water reuse facilities, retention and detention basins, groundwater recharge basins, constructed wetlands, and similar water and wastewater infrastructure that is often located adjacent to “waters of the United States.”
[Describe your projects here. Types to include are water recycling, stormwater basins, groundwater retention basins, constructed wetlands, etc.]
[Water Agency Name] requests water infrastructure facilities (including construction, maintenance, and operation) adjacent to traditionally navigable waters be excluded from the proposed definition of “waters of the United States”.
Conclusion
[Water Agency Name] appreciates the opportunity to provide comments on how to improve and clarify the proposed rule redefining “waters of the United States” under the CWA. Addressing the specific concerns discussed in this letter will help water agencies understand their responsibilities under the Clean Water Act.
Tags: policy, water