1

Summary of Additional Outreach to States

In response to State requests, EPA organized an additional opportunity to hear from States on issues of

interest to them on the proposed rulemaking regarding the definition of “Waters of the United States.”

What follows below is the invitation email, list of participants, four agendas, and the brief summaries of

the meetings generated by the States.

Invitation E

- mail

From: Goodin, John [mailto: Goodin.John@epa.gov ]

Sent: Tuesday, September 02, 2014 4:47 PM

To: Alexandra Dapolito Dunn ( adunn@ecos.org )

Cc: Gilinsky, Ellen; Best

- Wong, Benita; Evans, David; Pendergast, Jim; Kaiser, Russell; Downing, Donna;
Christensen, Damaris; Wendelowsk i, Karyn; McDavit, Michael W.
Subject: Further Engagement on Waters of the US Rulemaking

Greetings, Alex

--

I am pleased to respond to the several State requests in July and August for an opportunity to further

engage with the Environmental Protection Age ncy and the Army Corps of Engineers on the Clean Water

Act “Waters of the U.S.” rulemaking. We also recognize the unique status of States as regulators under

the Act and the importance of more fully understanding the implications of the rulemaking on you r
implementation of CWA programs. Described below is a proposed process for discussing additional

State insights, including some sideboards and considerations associated with the rulemaking

process. Please contact me at your earliest convenience to discu ss this proposal.

We propose to convene a series of meetings designed to generate meaningful discussion on the issues

of most concern to our state partners. This would be accomplished by reviewing specific concerns

expressed by individual state regulators as well as discussing options that appear in the preamble of the

proposed rule. The focus would be the implications of these important aspects of the proposed

rulemaking for State implementation of the Clean Water Act programs

We envision participation o f State environmental commissioners, water directors, and wetlands

program managers

-- perhaps 2

- 4 from each level

-- and a number of representatives from EPA and the

Army Corps of Engineers. We envision that the process would include facilitation by an Ass ociation

representative who could also convey meeting discussions to State representatives unable to attend a

particular session. We would defer to the States to identify the most appropriate, knowledgeable, and

constructive participants.

We recommend org anizing several sessions in the mid to late September/early October timeframe,

likely two per week of 2

- 3 hours in length. We anticipate that States would lead the identification of the

topics in advance of the meetings, and

-- to ensure the greatest utili ty of the sessions

-- that the topics

would generate specific thoughts on what individual States view as effective approaches to the issues

raised. Such topics could include options and implications for clarifications/ modifications of proposed

definitions , clarifications/ modifications of implementation issues, and clarifications/ modifications of

State role issues. While we recognize that some State participants may have concerns about the2

implications of the proposed rule on State assumption of the CWA 404 program or the ‘Interpretive

Rule,’ we would center our discussions on the proposed rule (though we envision future discussions on

issues related to assumption).

It is important to note that this would not be a FACA process; no consensus is sought an d individual

State participants would be sharing their individual views. Although the discussions and written

materials would be summarized for the proposed rulemaking docket, we anticipate that individual

States would make their own written recommendatio ns as part of the public notice and comment

opportunity.

Thank you again for the strong interest of the States in this important rulemaking, and your coordination

role. We look forward to additional opportunities to engage States to ensure that the fina l product of

the Agencies takes full advantage of the experience and knowledge of our State partners as we all work

for clean water.

John

Participants

(for at least one of the calls)

Michael Teague, Secretary of Energy & Environment, State of Oklahoma (backup Tyler Powell, Deputy

Secretary of Environment)

Colleen Cripps, Administrator, Nevada Division of Environmental Protection (backup Dave Gaskin,

Deputy Administrator)

Dick Pedersen, Director, Oregon Department of Environmental Quality

Michelle Walker, Director, Office of Policy & Planning, Tennessee Department of Environment &

Conservation

Sara Parker Pauley, Director of Missouri Department of Natural Resources

Mike Fulton, Director, Water Quality Division Arizona Department of Environmental Q uality

Mike Tate, Director, Bureau of Water Kansas Department of Health & Environment (backup Tom Stiles)

Drew Bartlett, Deputy Secretary for Water Policy & Ecosystem Restoration (backup Brian Accord)

Melanie Davenport, Director, Water Division Virginia Department of Environmental Quality

Collis Adams, New Hampshire

Ken Murin , Pennsylvania

Lauren Driscoll , Washington

Ginger Kop' Kash , New Jersey3

Alexandra Dunn, ECOS

Julia Anastasio, ACWA

Susan Kirsch, ACWA

Melissa McCoy, ACWA

Jeanne Christie, ASWM

Peg Bos tick, ASWM

Ken Kopocis, EPA

Ellen Gilinsky, EPA

Benita Best

- Wong, EPA

Dave Evans, EPA

John Goodin, EPA

Russ Kaiser, EPA

Donna Downing, EPA

Sonia Altieri, EPA

Greg Peck, EPA

Gautam Srinivasan, EPA

Jim Keating, EPA

Lee Schroer, EPA

Damaris Christensen, EPA4

Agendas :

EPA/ECOS/ACWA/ASWM Engagement on W aters of the U.S.

Tuesday, September 23, 2014

2:00

- 4:00 p.m. Eastern

Location (in person): 2369B EPA East

PH#: 1

- 866

- 299

- 3188

Conference Code: 202

- 566

- 0657

2:00pm Open Call and Make Introductions John, Meg, Alex, Julia, Jeanne

2:10pm Review Purpose of Series and Today’s Call John and Julia

Discuss Process and Ground Rules Julia and John

* Presentation of Issues

* Comments/Options/Recommendations

* Discussion of Implications

* Avenues for Addressing (Rule, Preamble, RTC, Other)

2:25pm Share Particular Expectations State Representatives

2:45pm Discuss and Confirm Agenda Topics All5 * Today

— Identification of Ephemeral Waters

* 30 September

— Clarity/Certainty for Approaches for Ditches, MS4s, Definition

* 2 October

— Additional Topic(s) TBD

* 7 October

— Additional Topic(s) TBD and Opportunities Post

- rule

3:00pm Identification of Ephemeral Waters / Extent of Tributaries

* Technical Approaches regarding clarifying the extent of jurisdiction

* Definitions and Practice for bed and bank and OHWM

* Clarification of the ‘upper limit’ and ‘breaks’ of tributary

* Clarification/Alternatives for excluding erosional features, dry washes, etc.

* Policy Appro aches

* Considerations for flow regime v. physical features

* Clarification approaches: rule, preamble, RTC, technical guidance

3:55pm Identify Tabled Issues, Confirm any preparation for next call(s) Julia and John

4:00pm Adjourn

EPA/ECOS/ACWA/ASWM Engagement on W aters of the U.S.

Tuesday, September 30 , 2014

2:00

- 4:00 p.m. Eastern

Location (in person): 2369 B EPA East6 PH#: 1

- 866

- 299

- 3188

Conference Code: 202

- 566

- 0657

2:00pm Open Call and Make Introductions John, Meg, Alex, Jeanne

2:10pm Updates, Opening Remarks, Feedback State Representatives

2:20pm Clarification and Discussion of MS4 Related Issues

* Review of Current Jurisdictional Aspects of MS4s EPA

* Considerations Regarding Adjacency of Feat ures in Floodplains All

* Considerations Regarding Tributary Status

* Considerations Reg arding Ditches, Exemptions

3:15pm Clarification and Discussion of Definitions All

* Upland

* Definition Clarifications

* Clarification approaches: rule, preamble, RTC, technical guidance

3:50pm Identify Tabled Issues, Confirm any Preparation for Next Call(s) John

4:00pm Adjourn7 EPA/ECOS/ACWA/ASWM Engagem ent on Waters of the U.S.

Thursday, October 2, 2014

2:00

- 4:00 p.m. Eastern

Location: EPA East 3233

PH#: 1

- 866

- 299

- 3188

Conference Code: 202

- 566

- 0657

Topic: Other Waters, Adjacency, and Related Topics

2:00pm Open Call and Make Introductions John, Meg, Alex, Julia, Jeanne

2:10pm Updates, Opening Remarks, Feedback State Representatives

2:20pm Clarification and Discussion of Other Wat ers

* Options Presented in Proposed Rule EPA

* Considerations for Other Waters All

* Regionalization

* Considerations of Distance, Geography

* Per se v. Case by Case

3:00pm Clarification and Discussion of Adjacency All

* Considerations for Subsurface Flow/Shallow Groundwater Connections

* Considerations for Floodplain and Riparian Area Definitions

*Clarification approaches: rule, preamble, RTC, technical guidance

3:50pm Identify Tabled Issues, Confirm any Preparation for Next Call(s) Julia & John

4:00pm Adjourn8 EPA/ECOS/ACWA/ASWM Engagement on Waters of the U.S.

Tuesday, October 7, 2014

2:00

- 4:00 p.m. Eastern

Location: EPA West 7129

PH#: 1

- 866

- 299

- 3188

Conference Code: 202

- 566

- 0657

Topic: Agriculture Issues, General Issues, Post

- Rule Implementation

2:00pm Open Call and Make Introductions John, Meg, Alex, Julia, Jeanne

2:10pm Updates, Opening Remarks, Feedb ack State Representatives

2:20pm Clarification and Discussion of Agricultural Issues

* Review of Current Relevant Provisions o f CWA EPA
* Considerations Regarding Ditches, Exemptions

3:10pm Clarification and Discussion of General Issues All

* Science Analysis, Economic Analysis, Docum entation

3:30pm Discussion of Post

- Rule Implementation

* Existing/Future JDs: Grandfathering, Preliminary JDs, No JD

* Roll

- out, Training, Workshops

* Clarification approaches: rule, preamble, RTC, technical guidance All

3:50pm Concluding Remarks Alex, Julia, Jeanne

4:00pm Adjourn9

ASWM Summary after final call (October 7, 2014) :



### At the end of the conference call today I said I would provide brief bullets on the areas where I

heard states express concerns and identified a need for greater clarity and predictability in how

decisions would be made in the field. Because of the diversity of landscapes, precipitation rates,

and existing state and federal laws and programs, these areas cannot be fully addressed in a

rule, but are ripe for collaborative efforts to develop consistent procedures to follow leading up

to and after the publication of a final rule. I think they all to some degree reflect existing areas of uncertainty that have been highlighted as part of the rulemaking effort. In some cases the

proposed rule ha s created additional uncertainty.

It would be very beneficial, not only for the states, but also for permit applicants and the

general public if further guidance could be developed in the following areas:

 Criteria and field/remote* procedures for i dentifying streams particularly ephemeral
streams (a joint effort by EPA/COE/States). This includes not only bed and bank and OHWM but
some method to determine that flow/biological or chemical processes are occurring that are

important to downstream navig able waters.

 Criteria and field/remote procedures for the identification of ditches

- jurisdictional

and non

- jurisdictional

 Criteria and field/remote procedures for identifying wastewater treatment systems

exempt from the CWA and those wate rs regulated under the CWA particularly within MSD4

boundaries and for the variety of stormwater treatment practices that have are being installed

in urban and urbanizing areas.

 Clarification of the expectations of EPA with respect to the developme nt of any new WQS for ephemeral streams that are not, because they are dry the great majority of the time,

easily addressed by conventional WQS for stream and rivers that run for sustained periods

(intermittent) or continuously (perennial) throughout the y ear.

In the rule itself there was support for developing a process for identifying categories of "other

waters" that could be identified as jurisdictional (not requiring the significant nexus tests) on a regional basis.

*field/remote

- the appropriate use GIS and other remote information where possible is

recommended and then a field visit only if needed

If folks have additional ideas they would like to offer or some additional thoughts on any of the

items listed here, please 'reply to all' so we can all benefit.

Thank you, Jeanne Christie , A ssociation of State Wetland Managers