Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

1 Clean Water Rule Comment Compendium Topic 7: Features and Waters Not Jurisdictional

The Response to Comments Document, together with the preamble to the final Clean Water Rule, presents the responses of the Environmental Protection Agency (EPA) and the Department of the Army (collectively “the agencies”) to the more than one million public comments received on the proposed rule (79 FR 22188 (Apr. 21, 2014)). The agencies have addressed a ll significant issues raised in the public comments.

As a result of changes made to the preamble and final rule prior to signature, and due to the volume of comments received, some responses in the Response to Comments Document may not reflect the languag e in the preamble and final rule in every respect. Where the response is in conflict with the preamble or the final rule, the language in the final preamble and rule controls and should be used for purposes of understanding the scope, requirements, and bas is of the final rule. In addition, due to the large number of comments that addressed similar issues, as well as the volume of the comments received, the Response to Comments Document does not always

cross

- reference each response to the commenter(s) who r aised the particular issue involved. The responses presented in this document are intended to augment the responses to comments that appear in the preamble to the final rule or to address comments not discussed in that preamble. Although portions of the p reamble to the final rule are paraphrased in this document where useful to add clarity to responses, the preamble itself remains the definitive statement of the rationale for the revisions adopted in the final rule. In many instances, particular responses presented in the Response to Comments Document include cross references to responses on related issues that are located either in the preamble to the Clean Water Rule, the Technical Support Document, or elsewhere in the Response to Comments Document. All i ssues on which the agencies are taking final action in the Clean Water Rule are addressed in the Clean Water Rule rulemaking record.

Accordingly, the Response to Comments Document, together with the preamble to the Clean

Water Rule and the information con tained in the Technical Support Document, the Science Report, and the rest of the administrative record should be considered collectively as the agencies’ response to all of the significant comments submitted on the proposed rule. The Response to Comments Document incorporates directly or by reference the significant public comments addressed in the preamble to the Clean Water Rule as well as other significant public comments that were submitted on the proposed rule.

This compendium, as part of the Respons e to Comments Document, provides a compendium of the technical comments about Features and Waters Not Jurisdictional submitted by commenters. Comments have been copied into this document “as is” with no editing or summarizing. Footnotes in regular font a re taken directly from the comments.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

2 T OPIC 7. F EATURES AND W ATERS N OT J URISDICTIONAL

................................ ....................... 23

S UMMARY R ESPONSE

................................ ................................ ................................ ... 23

S PECIFIC C OMMENTS

................................ ................................ ................................ ... 26 Gila River Indian Community (Doc. #13619)

................................ ...................... 26

Texas Commission on En vironmental Quality (Doc. #14279.1)

.......................... 26 Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)

........... 27 State of Oklahoma (Doc. #14625)

................................ ................................ ........ 27 Tennessee Department of Environment and Conservation (Doc. #15135)

.......... 27 Southern Ute Indian Tribe Growth Fund (Doc. #15386)

................................ ...... 28 Pike Peak Area Council of Governments, Colorado (Doc. #9732)

...................... 28 Northwest Florida Utility Managers Council (Doc. #14573)

............................... 29 Broward County, Florida (Doc. #15395)

................................ .............................. 30 Public Works, Ramsey County, Minnesota (Doc. #16665)

................................ .. 30 Board of Supervisors, Amador County, California (Doc. #17450)

...................... 31 Colorado Clean Water Coalition (Doc. #3533)

................................ .................... 31 Great Lakes Indian Fish and Wildlife Commission (Doc. #15454)

..................... 31 League of California Cities (Doc. #16442.1)

................................ ........................ 32 Federal StormWater Association (Doc. #15161)

................................ .................. 32 Idaho Association of Commerce & Industry (Doc. #15461)

................................ 32 Association of Nebraska Ethanol Producers (Doc. #15512)

................................ 32 FMC Corporation (Doc. #15533)

................................ ................................ ......... 33 Federal Water Quality Coalition (Doc. #15822.1)

................................ ................ 34 Water Advocacy Coalition (Doc. #17921.1)

................................ ........................ 35 FMC Corporation (Doc. #16505)

................................ ................................ ......... 36 Kentucky Oil and Gas Association (Doc. #16527)

................................ ............... 36 Vulcan Materials Company (Doc. #16566)

................................ .......................... 36 Irvine Ranch Water District (Doc. #14774)

................................ .......................... 37 Missouri Soybean Association (Doc. #14986)

................................ ..................... 37 Utah Farm Bureau Federation (Doc. #16542.1)

................................ ................... 38 Florida Crystals Corporation (Doc. #16652)

................................ ........................ 38 Union Pacific Railroad Company (Doc. #15254)

................................ ................. 39 West Bay Sanitary District, Novato Sanitary District, West County Wastewater District, Union Sanitary District and West Valley Sanitation District, California (Doc. #16610)

................................ ................................ ................................ ....... 39 Western States Water Council (Doc. #9842)

................................ ........................ 39 Duke Energy (Doc. #13029)

................................ ................................ ................. 40 The Clean Energy Group Waters Initiative (Doc. #14616)

................................ .. 40 Santa Clara Valley Water District (Doc. #14776)

................................ ................ 40 Utility Water Act Group (Doc. #15016)

................................ ............................... 41 Colorado River Water Conservation District (Doc. #15070)

............................... 41 Michigan Manufacturers Association (Doc. #15170)

................................ ........... 41

Tri

- State Generation and Transmission Association, Inc. (Doc. #16392)

............ 42 National Wildlife Federation (Doc. #15020)

................................ ........................ 42 Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network (Doc. #15233)

................................ ................................ ..... 42 Pacific Legal Foundation (Doc. #14081)

................................ .............................. 43Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

3 Trout Unlimited (Doc. #18015)

................................ ................................ ............ 44 Earthjustice (Doc. #14564)

................................ ................................ ................... 44 Nebraska Wildlife Federation (Doc. #15034)

................................ ....................... 45 Neuse Riverkeeper Foundation (Doc. #15095)

................................ .................... 45 Texas Agricultural Land Trust (Doc. #15188.2)

................................ .................. 46 Hackensack Riverkeeper, Hudson Riverkeeper, Milwaukee Riverkeeper, NY/NJ Baykeeper and Raritan Riverkeeper (Doc. #15360)

................................ ............. 46 Louisiana Environmental Action Network (Doc. #15377)

................................ ... 46 Delaware Riverkeeper Network (Doc. #15383)

................................ ................... 48 Wisconsin Wetlands Association (Doc. #15629)

................................ ................. 4 8

AES

- US Services (Doc. #3242)

................................ ................................ ............ 49

The Property Which Water Occupies (Doc. #8610)

................................ ............. 49

7.1. W ASTE T REATMENT S YSTEM (WTSE)

................................ ................................ ............. 51

S UMMARY R ESPONSE

................................ ................................ ................................ ... 51

S PECIFIC C OMMENT S

................................ ................................ ................................ ... 52 Quapaw Tribe of Oklahoma (the O

- Gah

- Pah) (Doc. #7980)

............................... 52 Navajo Nation Environmental Protection Agency (Doc. #10117)

....................... 52 Texas Department of Transportation (Doc. #12757)

................................ ............ 53 Earthworks et al. (Doc. #15173)

................................ ................................ ........... 53 California State Water Resources Control Board (Doc. #15213)

......................... 53 National Tribal Water Council (Doc. # 18922)

................................ .................... 54 Allen Boone Humphries Robinson, LLP (Doc. # 19614)

................................ ..... 56 Bard of Douglas County Commissioners, Colorado (Doc. #8145)

...................... 56 City of Palo Alto, California (Doc. #12714)

................................ ......................... 57 Waters of the United States Coalition (Doc. #14589)

................................ .......... 57

National Association of Counties (Doc. #15081)

................................ ................. 58 City of Stockton, California (Doc. #15125)

................................ .......................... 59 City of Beaverton, Oregon (Doc. #16466)

................................ ............................ 59 Las Vegas Valley Watershed Advisory Committee (Doc. #16504)

..................... 59 Department of Public Works, County of San Diego, California (Doc. #17920)

.. 60 Department of Public Works & Engineering, City of Cookeville, Tennessee (Doc. #19619)

................................ ................................ ................................ ................. 61 Rural County Representatives of California (Doc. #5537)

................................ ... 61 California State Association of Counties (Doc. #9692)

................................ ........ 61 California Association of Sanitation Agencies (Doc. #12832)

............................. 62 Oregon Association of Clean Water Agencies (Oregon ACWA) (Doc. #16613) 62 Virginia Association of Counti es (Doc. #16796)

................................ ................. 62 Iowa League of Cities (Doc. #18823)

................................ ................................ ... 63 U.S. Chamber of Commerce (Doc. #14115)

................................ ......................... 63 Indiana Farm Bureau et al. (Doc. #14119)

................................ ........................... 64 Pennsylvania Chamber of Commerce and Industry (Doc. #14401)

..................... 64 South Carolina Chamber of Commerce (Doc. #14535)

................................ ........ 65 Institute of Scrap Recycling Industries, Inc. (Doc. #15041)

................................ . 66 American Council of Engineering Companies (Doc. #15534)

............................. 67 Federal Water Quality Coalition (Doc. #15822.1)

................................ ................ 67 Water Advocacy Coalition (Doc. #17921.1)

................................ ........................ 67Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

4 Virginia Manufacturers Association (Doc. #18821)

................................ ............. 69 National Association of Home Builders (Doc. #19540)

................................ ....... 69 Vulcan Materials Company (Doc. #14642)

................................ .......................... 70 Texas Mining and Reclamation Association (Doc. #10750)

................................ 70 Pennsylvania Coal Alliance (Doc. #13074)

................................ .......................... 76 Newmont Mining Corporation (Doc. #13596)

................................ ..................... 77 American Exploration & Mining Association (Doc. #13616 )

.............................. 78 Wyoming Mining Association (Doc. #14460)

................................ ...................... 79 American Petroleum Institute (Doc. #15115)

................................ ....................... 80 Sinclair Oil Corporation (Doc. #15142)

................................ ............................... 81 Corporate Communications and Sustainability, Domtar Corporat ion (Doc. #15228)

................................ ................................ ................................ ................. 83 Alpha Natural Resources, Inc. (Doc. #15624)

................................ ...................... 84 Dominion Resources Services, Inc. (Doc. #16338)

................................ .............. 85 Barrick Gold of North America (Doc. #16914)

................................ .................... 85 Halliburton Energy Services, Inc. (Doc. #19458)

................................ ................. 86 Alameda County Cattlewomen (Doc. #8674)

................................ ....................... 87 North American Meat Association and American Meat Institute (Doc. #13071) 88 Minnesota Agricultural Water Resource Center (Doc. #14284)

.......................... 89 Irvine Ranch Water District (Doc. #14774)

................................ .......................... 89 Georgia Paper & Forest Products Association (Doc. #14924)

............................. 91 Missouri Soybean Association (Doc. #14986)

................................ ..................... 92 North Carolina Farm Bureau Federation (Doc. #15078)

................................ ...... 92 Packaging Corporation of America (Doc. #15515)

................................ .............. 92 Association of American Railroads (Doc. #15018.1)

................................ ........... 93 County of San Diego, California (Doc. #14782)

................................ .................. 94 Arizona Public Service Company (Doc. #15162)

................................ ................. 95 National Association of Clean Water Agencies (Doc. #15505)

........................... 95 Orange County Sanitation District, California (Doc. #16335.1)

.......................... 96 Duke Energy (Doc. #13029)

................................ ................................ ................. 97

Ameren Corporation (Doc. #13608)

................................ ................................ ... 100 Florida Power & Light Company (Doc. #13615)

................................ ............... 100 Murray Energy Corporation (Doc. #13954)

................................ ....................... 103

The Florida Electric Power Coordinating Group, Inc. (Doc. #13993)

............... 103 NRG Energy, Inc. (Doc. #13995)

................................ ................................ ....... 105 Southern Company (Doc. #14134)

................................ ................................ ..... 106

Southern I llinois Power Cooperative (Doc. #14402)

................................ .......... 106 Golden Spread Electric Cooperative, Inc. (Doc. #14422)

................................ .. 107 National Lime Association (Doc. #14428.1)

................................ ...................... 107 Synagro Technologies, Inc. (Doc. #14565)

................................ ........................ 108 National Rural Water Association (Doc. #14623)

................................ .............. 109 Berkshire Hathaway Energy Company (Doc. #14650)

................................ ...... 109 American Public Power Association (Doc. #15008)

................................ .......... 110 Utility Water Act Group (Doc. #15016)

................................ ............................. 110 Edison Electric Institute (Doc. #15032)

................................ .............................. 117 Colorado River Water Conservation District (Doc. #15070)

............................. 119Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

5 Cleco Corporation (Doc. #15077)

................................ ................................ ....... 119 NiSource Inc. (Doc. #15112)

................................ ................................ .............. 121 Michigan Manufacturers Association (Doc. #15170)

................................ ......... 121 Ohio Utility Group (Doc. #15246)

................................ ................................ ...... 121 Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407)

.. 122 SCANA Services, Inc. (Doc. #15660)

................................ ................................ 123 Lower Colorado River Authority (Doc. #16332)

................................ ............... 123 Seminole Electric Cooperative, Inc. (Doc. #16363)

................................ ........... 124

Tri

- State Generation and Transmission Association, Inc. (Doc. #16392)

.......... 124 Xcel Energy (Doc. #18023)

................................ ................................ ................ 126 Alliant Energy Corporate Services, Inc. (Doc. #18971)

................................ ..... 126 South Carolina Public Service Authority (Doc. #18860)

................................ ... 127 Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network (Doc. #15233)

................................ ................................ ... 128 Natural Resources Defense Council et al. (Doc. #15437)

................................ .. 128 Waterkeeper Alliance et al. (Doc. #16413)

................................ ........................ 130 Association of State Floodplain Managers, Inc. (Doc. #19452)

......................... 132 The Association of State Wetland Managers (Doc. #14131)

............................. 132 Caloosahatchee River Citizen’s Association (Doc. #4711.2)

............................. 133 Earthjustice (Doc. #14564)

................................ ................................ ................. 134

Tula ne Environmental Law Clinic, Tennessee Clean Water Network, et al. (Doc. #15123)

................................ ................................ ................................ ............... 137 Columbia Riverkeeper (Doc. #15210)

................................ ................................ 138 Louisiana Environmental Action Network (Doc. #15377)

................................ . 139 Delaware Riverkeeper Network (Doc. #15383)

................................ ................. 140 Tennessee Clean Water Network et al. (Doc. #16537)

................................ ....... 141 Midwest Environmental Advocates (Doc. #16645)

................................ ............ 142 WaterLegacy (Doc. #18017)

................................ ................................ ............... 144 Clark Fork Coalition (Doc. #19539)

................................ ................................ ... 1 44 Water Environment Federation (Doc. #16584)

................................ .................. 144 Robert J. Goldstein & Associates (Doc. #16577)

................................ ............... 145

7.2. P RIOR C ONVERTED C ROPLAND (PCC)

................................ ................................ ........... 145

S UMMARY R ESPONSE

................................ ................................ ................................ . 145

S PECIFIC C OMMENTS

................................ ................................ ................................ . 147 New Mexico Department of Agriculture (Doc. #13024)

................................ .... 147 Gila River Indian Community (Doc. #13619 )

................................ .................... 149 North Carolina Forest Service, North Carolina Department of Agriculture (Doc. #14122)

................................ ................................ ................................ ............... 150 Board of Supervisors, Pocahontas County, Iowa (Doc. #13666)

....................... 151 Board of Supervisors, Sutter County, California (Doc. #19657)

........................ 151 Virginia Association of Counties (Doc. #15175)

................................ ............... 152 Michigan Association of Conservation Districts (Do c. # 16583)

....................... 152 Kerr Environmental Services Corp. (Doc. #7937.1)

................................ ........... 153 Montana Wool Growers Association (Doc. #5843.1)

................................ ........ 153 National Farmers Union (Doc. #6249)

................................ ............................... 154 Michigan Farm Bureau (Doc. #10196)

................................ ............................... 154Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

6 Minnesota Agricultural Water Resource Center (Doc. #14284)

........................ 154 California Association of Winegrape Growers (Doc. #14593)

.......................... 154 American Soybean Association (Doc. #14610)

................................ .................. 155 Great Plains Canola Association (Doc. #14725)

................................ ................ 156 National Pork Producers Council (Doc. #15023)

................................ ............... 156 North Carolina Farm Bureau Federation (Doc. #15078)

................................ .... 156 US Dry Bean Council (Doc. #15256)

................................ ................................ . 156 Minnesota Soybean Growers Association (Doc. #15542)

................................ .. 157 National Barley Growers Association (Doc. #15627)

................................ ........ 157 US Canola Association (Doc. #16361)

................................ ............................... 157 Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1)

.... 157 Caloosahatchee River Citizen’s Association (Doc. #47 11.2)

............................. 158 Citizens Committee to Complete the Refuge (Doc. #14738)

............................. 159 Stormwater Management Commission, Lake County, Illinois (Doc. #15381)

.. 164 Wetland Science Applications, Inc. (Doc. #4958)

................................ .............. 165

7.3. A DDITIONAL P ROPOSED E XCLUSIONS

................................ ................................ ............ 165

S UMMARY R ESPONSE

................................ ................................ ................................ . 165

S PECIFIC C OMMENTS

................................ ................................ ................................ . 166 Virginia Department of Transportation (Doc. #12756)

................................ ...... 166 Ohio Department of Natural Resources et al. (Doc. #15421)

............................. 166 Scott County Soil and Water Conservation District, Illinois (Doc. #8410)

........ 166 Ames Construction, Inc. (Doc. #17045)

................................ ............................. 167 Richland Communities (Doc. #18793)

................................ ............................... 167 Water Law (Doc. #13053)

................................ ................................ .................. 170 Coalition of Renewable Energy Landowner Associations (Doc. #14626)

......... 170 Pennsylvania Independent Oil and Gas Association (Doc. #15167)

.................. 170 Ducks Unlimited (Doc. #11014)

................................ ................................ ......... 171 Defenders of Wildlife and Patagonia Area Resource Alliance (Doc. #16394)

.. 172

Delaware Riverkeeper Network (Doc. #15383)

................................ ................. 172 Community Watersheds Clean Water Coalition, Inc. (Doc. #16935)

................ 173 Water Environment Federation (Doc. #16584)

................................ .................. 173

7.3.1 Artificially Irrigated Areas that would Revert to Upland should Application of Irrigation Water to that Area Cease

................................ ................................ ....................... 174

S UMMARY R ESPONSE

................................ ................................ ................................ . 174

S PECIFIC C OMMENTS

................................ ................................ ................................ . 175 Office of the Governor, State of Montana (Doc. # 16694)

................................ . 175 California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

................................ ................................ ................................ ..... 176 Board of Supervisors, Sutter County, California (Doc. #19657)

........................ 176 Earthjustice (Doc. #14564)

................................ ................................ ................. 177

7.3.2. Artificial Lakes or Ponds Created by Excavating and/or Diking Dry Land and Used Exclusively for Such Purposes as Stock Wa tering, Irrigation, Settling Basins, or Rice Growing

178

S UMMARY R ESPONSE

................................ ................................ ................................ . 178

S PECIFIC C OMMENTS

................................ ................................ ................................ . 179Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

7 Oak Ridge National Laboratory (Doc. #14463)

................................ ................. 179 Tennessee Department of Environment and Conservation (Doc. #15135)

........ 179 Arizona Game and Fish Department (Doc. #15197)

................................ .......... 179

Sout hern Ute Indian Tribe Growth Fund (Doc. #15386)

................................ .... 180 West Virginia Department of Environmental Protection (Doc. #15415)

........... 180 Allen Boone Humphries Robinson, LLP (Doc. # 19614)

................................ ... 180 Board of Supervisors, County of Nevada, California (Doc. #6856)

................... 181 Central Valley Soil and Water Conservation District and Penasco Soil and Water Conservation District, Artesia, Maryland (Doc. #14943)

................................ ... 181 City of Glendale, Arizona (Doc. #15054)

................................ ........................... 181 Board of Supervisors, Nevada County, California (D oc. #18894)

..................... 182 Board of Supervisors, Sutter County, California (Doc. #19657)

........................ 182 Washington State Water Resources Association (Doc. #16543)

........................ 182 U.S. Chamber of Commerce (Doc. #14115)

................................ ....................... 183 South Carolina Chamber of Commerce (Doc. #14535)

................................ ...... 183 Dow Chemical Company (Doc. #15408)

................................ ............................ 184 Federal Water Quality Coalition (Doc. #15822.1)

................................ .............. 184 NAIOP Commercial Real Estate Development Associati on (Doc. #14621)

...... 184 Staker Parson Companies (Doc. #15618)

................................ ........................... 185 Texas Mining and Reclamation Association (Doc. #10750)

.............................. 185 Pennsylvania Coa l Alliance (Doc. #13074)

................................ ........................ 186 Newmont Mining Corporation (Doc. #13596)

................................ ................... 187 Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

................................ ................................ ................................ ............... 190 Barrick Gold of North America (Doc. #16914)

................................ .................. 190 Montana Wool Growers Association (Doc. #5843.1)

................................ ........ 191 Alameda County Cattlewomen (Doc. #8674)

................................ ..................... 191 California Agricultural Commissioners and Sealer Association (Doc. #9670)

.. 192 Montana Farm Bureau Federation (Doc. #12715)

................................ .............. 192 Bayless and Berkalew Co. (Doc. #12967)

................................ .......................... 19 3 North American Meat Association and American Meat Institute (Doc. #13071)

................................ ................................ ................................ ............................. 193 USA Rice Federation (Doc. #13998)

................................ ................................ .. 194 Kansas Agriculture Alliance (Doc. #14424)

................................ ....................... 194 Missouri Soybean Association (Doc. #14986)

................................ ................... 194 Colorado Cattlemen's Association (Doc. #15068)

................................ .............. 195 North Carolina Farm Bureau Federation (Doc. #15078)

................................ .... 195 Jensen Livestock and Land LLC (Doc. #15540)

................................ ................ 195 National Barley Growers Association (Doc. #15627)

................................ ........ 196 Florida Crystals Corporation (Doc. #16652)

................................ ...................... 197 Richland Communities (Doc. #18793)

................................ ............................... 197 Water Law (Doc. #13053)

................................ ................................ .................. 198 Colorado Water Congress Federal Affairs Committee (Doc. #14569)

............... 198 Oglethorpe Power Corporation (Doc. #14618)

................................ ................... 198 Santa Clara Valley Water District (Doc. #14776)

................................ .............. 199

Tri

- State Generation and Transmission Association, Inc. (Doc. #16392)

.......... 199Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

8 Xcel Energy (Doc. #18023)

................................ ................................ ................ 200 Ducks Unlimited (Doc. #11014)

................................ ................................ ......... 200 Southern Environmental Law Center et al. (Doc. #13610)

................................ 201 Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network (Doc. #15233)

................................ ................................ ... 201 Patrick E. Murphy, Member of Congress, House of Representative s (Doc. #15371.1)

................................ ................................ ................................ ............ 201 Robert J. Goldstein & Associates (Doc. #16577)

................................ ............... 202

7.3.3. Artificial Reflecting Pools or Swimming Pools Created by Excavating and/or Diking Dry Land

................................ ................................ ................................ ................................ . 202

S PECIFIC C OMMENTS

................................ ................................ ................................ . 202

Federal Water Quality Coalition (Doc. #15822.1)

................................ .............. 202 Water Law (Doc. #13053)

................................ ................................ .................. 203 Berkshire Hathaway Energy Company (Doc. #14650)

................................ ...... 203 Southern Environmental Law Center et al. (Doc. #13610)

................................ 203

7.3.4. Small Ornamental Waters Created by Excavating and/or Diking Dry Land for Primarily Aesthetic Reasons

................................ ................................ ................................ .. 203

S UMMARY R ESPONSE

................................ ................................ ................................ . 203

S PECIFIC C OMMENTS

................................ ................................ ................................ . 204 City of Glendale, Arizona (Doc. #15054)

................................ ........................... 204

Rubber Manufacturers Ass ociation (Doc. #15419)

................................ ............ 204 Federal Water Quality Coalition (Doc. #15822.1)

................................ .............. 204 Northern Arizona Municipal Waters Users Association (Doc. #9730)

.............. 205 Water Law (Doc. #13053)

................................ ................................ .................. 205

Southern Environmental Law Center et al. (Doc. #13610)

................................ 205

7.3.5. Water

-

filled Depressions Created Incidental to Construction Activity

.................... 205

S UMMARY R ESPONSE

................................ ................................ ................................ . 205

S PECIFIC C OMMENTS

................................ ................................ ................................ . 206 Pennsylvania F ish and Boat Commission (Doc. #4826)

................................ .... 206 North Carolina Forest Service, North Carolina Department of Agriculture (Doc. #14122)

................................ ................................ ................................ ............... 207 North Carolina Department of Agriculture and Consumer Services (Doc. #14747)

................................ ................................ ................................ ............................. 207 Wisconsin Department of Natural Resource (Doc. #15141)

.............................. 207 California State Water Resources Control Board (Doc. #15213)

....................... 208 Ohio Department of Natural Resources et al . (Doc. #15421)

............................. 208 Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)

......... 209 North Carolina Soil and Water Conservation Commission (Doc. #14790)

........ 209 Minnesota Chamber of Commerce (Doc. #16473)

................................ ............. 210 Washington State Water Resources Association (Doc. #16543)

........................ 210 U.S. Chamber of Commerce (Doc. #14115)

................................ ....................... 210 South Carolina Chamber of Commerce (Doc. #14535)

................................ ...... 211 Federal Water Quality Coalition (Doc. #15822.1)

................................ .............. 212 Lydig Construction Inc. (Doc. #14147)

................................ .............................. 212 Associated General Contractors of America (Doc. #14602)

.............................. 212 NAIOP Commercial Real Estate Development Association (Doc. #14621)

...... 214Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

9 O'Neil LLP (Doc. #14651)

................................ ................................ .................. 214 Reclamation and Abandoned Mine Lands Divisions, Public Service Commission, North Dakota (Doc. #

................................ ................................ ............................ 12857) 215 National Stone, Sand and Gravel Association (Doc. #14412)

............................ 215 Lyman

- Richey Corporation (Doc. #14420)

................................ ........................ 216 Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #14619)

................................ ................................ ................................ ............... 218 Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

................................ ................................ ................................ ............... 218 Valero Companies (Doc. #15363)

................................ ................................ ...... 219 North Carolina Farm Bureau Federation (Doc. #15078)

................................ .... 220 Oglethorpe Power Corporation (Doc. #14618)

................................ ................... 220 Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

................................ ................................ ................................ ............................. 220 Colorado Water Congres s Federal Affairs Committee (Doc. #14569)

............... 221 Southern Environmental Law Center et al. (Doc. #13610)

................................ 221 Stormwater Management Commission, Lake County, Illinois (Doc. #15381)

.. 222 WaterLegacy (Doc. #18017)

................................ ................................ ............... 222 O'Neil LLP (Doc. #16559)

................................ ................................ .................. 222 Robert J. Goldstein & Associates (Doc. #16577)

................................ ............... 223

7.3.6. Groundwater, including Groundwater Drained through Subsurface Drainage Systems

223

S UMMARY R ESP ONSE

................................ ................................ ................................ . 223

S PECIFIC C OMMENTS

................................ ................................ ................................ . 225 Region 10 Tribal Caucus (Doc. #14927)

................................ ............................ 225 U.S. House of Representatives Committee on Science, Space an d Technology (Doc. #16386)

................................ ................................ ................................ ..... 225 State of Idaho (Doc. #9834)

................................ ................................ ................ 226 State of Oklahoma (Doc. #14625)

................................ ................................ ...... 226 North Carolina Department of Agriculture and Consumer Services (Doc. #14747)

................................ ................................ ................................ ............................. 227 Wisconsin Department of Natural Resource (Doc. #15141)

.............................. 227 Los Angeles Department of Water and Power (Doc. #15238)

........................... 227 New Mexico Environment Department (Doc. # 16552)

................................ ..... 228 State of Oklahoma, et al. (Doc. # 16560)

................................ ........................... 228 State of Idaho (Doc. # 16597)

................................ ................................ ............. 229 Office of the Governor, State of Montana (Doc. # 16694)

................................ . 230 State of Nevada, Department of Conservatio n, et al. (Doc. # 16932)

................ 230 State of Alaska (Doc. # 19465)

................................ ................................ ........... 230 California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

................................ ................................ ................................ ..... 231 City of Pompano Beach, Florida (Doc. #16438)

................................ ................ 232 Maui County, Hawaii (Doc. #19593)

................................ ................................ . 232 Association of Drinking Water Administrators (Doc. #15530)

.......................... 232 Western States Water Council (Doc. #9842)

................................ ...................... 233 Groundwater Protection Council (Doc. #13055)

................................ ................ 234Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

10 Federal Water Quality Coalition (Doc. #15822.1)

................................ .............. 234 Minnesota Chamber of Commerce (Doc. #16473)

................................ ............. 235 Alameda County Cattlewomen (Doc. #8674)

................................ ..................... 236 Colorado Cattlemen's Association (Doc. #15068)

................................ .............. 236 North Carolina Farm Bureau Federation (Doc. #15078)

................................ .... 237 Irrigation Association (Doc. #15217)

................................ ................................ . 237 National Barley Growers Association (Doc. #15627)

................................ ........ 237

Charlotte

- Mecklenburg Storm Water Services (Doc. #3431)

............................. 238 Upper Niobrara White Natural Resources District, Chadron, Nebraska (Doc. #13562)

................................ ................................ ................................ ............... 238 Southern Nevada Water Authority (Doc. #14580)

................................ ............. 238 Berkshire Hathaway Energy Company (Doc. #14650)

................................ ...... 238 Eagle River Water & Sanitation District, Vail, Colorado (Doc. #15116)

.......... 239 Wyoming State Engineer Office (Doc. #15496)

................................ ................. 240

San Luis & Delta

- Mendota Water Authority, Los Banos, California (Doc. #15645)

................................ ................................ ................................ ............... 240

Northe rn California Association (Doc. #17444)

................................ ................. 241 Center for Small Business and the Environment (Doc. #6981)

.......................... 241 Ducks Unlimited (Doc. #11014)

................................ ................................ ......... 242 Southern Environmental Law Center et al. (Doc. #13610)

................................ 242 National Wildlife Federation (Doc. #15020)

................................ ...................... 243 Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network (Doc. #15233)

................................ ................................ ... 243 Defenders of Wildlife and Patagonia Area Resource Alliance (Doc. #16394)

.. 243 Waterkeeper Alliance et al. (Doc. #16413)

................................ ........................ 246 Western Resource Advocates (Doc. #16460)

................................ ..................... 247 Indiana Karst Conservancy (Doc. #6993)

................................ ........................... 247 Earthjustice (Doc. #14564)

................................ ................................ ................. 248 Columbia Riverkeeper (Doc. #15210)

................................ ................................ 250

Raritan Riverkeeper (Doc. #15360)

................................ ................................ .... 250 Delaware Riverkeeper Network (Doc. #15383)

................................ ................. 250 Center for Environmental Law & Policy (Doc. #15431)

................................ .... 251

The Ri ver Alliance of Wisconsin (Doc. #16344)

................................ ............... 263 Water Watch of Oregon (Doc. #16568)

................................ .............................. 263 Community Watersheds Clean Water Coalition, Inc. (Doc. #16935)

................ 263 WaterLegacy (Doc. #18017)

................................ ................................ ............... 266

Nation al Association of Flood & Stormwater Management Agencies (Doc. #19599)

................................ ................................ ................................ ............... 267 Environmental Technology Consultants (Doc. #2597)

................................ ...... 267 Wetland Science Applications, Inc. (Doc. #4958)

................................ .............. 267 Robert J. Goldstein & Associates (Doc. #16577)

................................ ............... 267

7.3.7. Gullies and Rills and Non

- Wetland Swales

................................ .............................. 268

A GENCY S UMMARY R ESPONSE

................................ ................................ .................. 268

S PECIFIC C OMMENTS

................................ ................................ ................................ . 269 U.S. House of Representatives Committee on Science, Space and Technology (Doc. #16386)

................................ ................................ ................................ ..... 269Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

11 New Mexico Department of Agriculture (Doc. #13024)

................................ .... 270 Tennessee Department of Environment and Conservation (Doc. #15135)

........ 270 West Virginia Department of Environmenta l Protection (Doc. #15415)

........... 271 Department of Public Health and the Environment, State of Colorado (Doc. # 16342)

................................ ................................ ................................ ................. 271 Board of County Commissioners, Delta County, Colorado (Doc. #14405)

....... 272 Southern California Water Committee (Doc. #16170)

................................ ....... 272 San Bernardino County, California (Doc. #16489)

................................ ............ 272 City of Oceanside, California (Doc. #16509)

................................ ..................... 273 Hidalgo Soil and Water Conservation District, Lordsburg, New Mexico (Doc. #19450)

................................ ................................ ................................ ............... 273 National Association of Flood & Stormwater Management Agencies (Doc. #13613)

................................ ................................ ................................ ............... 273 Indiana Farm Bureau et al. (Doc. #14119)

................................ ......................... 274 Southpace Properties, Inc. (Doc. #6989.1)

................................ ......................... 274 Kerr Environmental Services Corp. (Doc. #7937.1)

................................ ........... 275 NAIOP Commercial Real Estate Development Association (Doc. #14621)

...... 275 Vulcan Materials Company (Doc. #14642)

................................ ........................ 276 Newmont Mining Corporation (Doc. #13596)

................................ ................... 276 Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

................................ ................................ ................................ ............... 277 Alameda County Cattlewomen (Doc. #8674)

................................ ..................... 277 Hancock County Farm Bureau, Indiana (Doc. #11980)

................................ ..... 278 Bayless and Berkalew Co. (Doc. #12967)

................................ .......................... 278 Indiana Farm Bureau, Inc. (Doc. #14124)

................................ .......................... 279 Kansas Agriculture Alliance (Doc. #14424)

................................ ....................... 279 LeValley Ranch, LTD (Doc. #14540)

................................ ................................ 280 Colorado Cattlemen’s Association (Doc. #15068)

................................ ............. 280 North Carolina Farm Bureau Federation (Doc. #15078)

................................ .... 280 Weyerhaeuser Company (Doc. #15392)

................................ ............................. 280

Charlotte

- Mecklenburg Storm Water Services (Doc. #3431)

............................. 281 Duke Energy (Doc. #13029)

................................ ................................ ............... 281 Southern Company (Doc. #14134)

................................ ................................ ..... 282 National Lime Association (Doc. #14428.1)

................................ ...................... 282 Salt River Project Agricultural and Power District and the Salt River Valley Water Users Association (Doc. #14928)

................................ ............................ 283 Luminant (Doc. #15100)

................................ ................................ ..................... 283

Wisconsin Electric P ower Company and Wisconsin Gas LLC (Doc. #15407)

.. 283 Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

................................ ................................ ................................ ............................. 284 Ducks Unlimited (Doc. #11014)

................................ ................................ ......... 285 Clean Water Action (Doc. #15015)

................................ ................................ .... 285 American Rivers (Doc. #15372)

................................ ................................ ......... 2 86

We stern Resource Advocates (Doc. #16460)

................................ ..................... 288 Earthjustice (Doc. #14564)

................................ ................................ ................. 289 Columbia Riverkeeper (Doc. #15210)

................................ ................................ 289Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

12 National Association of Flood & Stormwater Management Agencies (Doc. #19599)

................................ ................................ ................................ ............... 289 Environmental Technology Consultants (Doc. #2597)

................................ ...... 290 Wetland Science Applications, In c. (Doc. #4958)

................................ .............. 290 Kirk Mantay, PWS, Wetland Ecologist (Doc. #15192.1)

................................ ... 290 Robert J. Goldstein & Associates (Doc. #16577)

................................ ............... 291

7.4. S UGGESTED N EW E XCLUSIONS /L ANGUAGE BY C OMMENTERS

................................ ..... 291

S UMMARY R ESPONSE

................................ ................................ ................................ . 291

S PECIFIC C OMMENTS

................................ ................................ ................................ . 295 Waters of the United States Coalition (Doc. #14589)

................................ ........ 295 Peltzer & Richardson, LC (Doc. #16360)

................................ ........................... 296 Coachella Valley Water District (Doc. #16926)

................................ ................. 297

7.4.1. Stormwater Ponds not Adjacent

................................ ................................ ................ 297

S UMMARY R ESPONSE

................................ ................................ ................................ . 297

S PECIFIC C OMME NTS

................................ ................................ ................................ . 298 City of Glendale, Arizona (Doc. #15054)

................................ ........................... 298 Boulder County and the City of Boulder, Colorado (Doc. #15495)

................... 298 County of Los Angeles and Los Angeles County Flood Control District, California (Doc. #15620)

................................ ................................ .................... 298 City of Pompano Beach, Florida (Doc. #16438)

................................ ................ 299 Tennessee Department of Transportation (Doc. # 16470)

................................ .. 300 Rubber Manufacturers Association (Doc. #15419)

................................ ............ 301 Indiana Manufacturers Association (Doc. #15704)

................................ ............ 301 National Association of Home Builders (Doc. #19540)

................................ ..... 301 Department of Public Works, City of Northglenn, Colorado (Doc. #14990)

..... 304

7.4.2. Groundwater Recharge Ponds

................................ ................................ .................. 305

S UMMARY R ESPONSE

................................ ................................ ................................ . 305

S PECIFIC C OMMENTS

................................ ................................ ................................ . 306

Board of Count y Commissioners, White Pine County, Nevada (Doc. #9975)

... 306 Flood Control and Water Conservation District, Riverside County, Califor nia (Doc. #14581)

................................ ................................ ................................ ..... 306 City of Glendale, Arizona (Doc. #15054)

................................ ........................... 307 County of Los Angeles and Los Angeles County Flood Control District, California (Doc. #15620)

................................ ................................ .................... 308 Southeast Florida Utility Council (Doc. #11879)

................................ ............... 309

San Gabriel Basin Water Quality Authority, California (Doc. #17049)

............. 310 Center for Water Advocacy et al. (Doc. #15225)

................................ ............... 310

7.4.3. Agricultural

................................ ................................ ................................ ............... 311

S UMMARY R ESPONSE

................................ ................................ ................................ . 311

S PECIFIC C OMME NTS

................................ ................................ ................................ . 313 Gila River Indian Community (Doc. #13619)

................................ .................... 313 North Carolina Forestry Advisory Council (Doc. #14123)

................................ 315 North Dakota Office of the Governor, et al (Doc. #15365)

................................ 315 Department of Public Health and the Environment, State of Colorado (Doc. # 16342)

................................ ................................ ................................ ................. 316Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

13 State of Idaho (Doc. # 16597)

................................ ................................ ............. 316 Pyramid Lake Paiute Tribe (Doc. # 17472)

................................ ........................ 317 Board of County Commissioners, Clermont County, Ohio (Doc. #4581.2)

....... 317 Land Improvement Contractors of America (Doc. #8541)

................................ . 317 Annette Schafer (Doc. #2743)

................................ ................................ ............ 318

Grower

- Shipper Association of Central California (Doc. #4710.2)

................... 318 Adams Ranch, Inc. (Doc. #4978.2)

................................ ................................ ..... 318 National Farmers Union (Doc. #6249)

................................ ............................... 318 Minnesota Agricultural Water Resource Center (Doc. #14284)

........................ 319 Peltzer & Richardson, LC (Doc. #16360)

................................ ........................... 319

Glenn

- Colusa Irrigation District (Doc. #16635)

................................ ................. 319 Washington County Water Conservancy Distri ct, St. George, Utah (Doc. #15536)

................................ ................................ ................................ ............................. 320 Castaic Lake Water Agency, Santa Clarita, California (Doc. #17061)

.............. 321 Kansas Natural Resource Council (Doc. #14599)

................................ .............. 321

7.4.4. MS4s and other stormwater management features

................................ ................... 322

S UMMARY R ESPONSE

................................ ................................ ................................ . 322

S PECIFIC C OMMENTS

................................ ................................ ................................ . 329 State of Hawaii Department of Transportation (Doc. #10184)

........................... 329 Pyramid Lake Paiute Tribe (Doc. #17472)

................................ ......................... 330 State of Alaska (Doc. #19465)

................................ ................................ ............ 330 California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

................................ ................................ ................................ ..... 330

Florida Department of Transportation (Doc. #18824)

................................ ........ 330 Lee County, Florida (Doc. #1346.1)

................................ ................................ ... 331 Board of County Commissioners, Clermont County, Ohio (Doc. #4581.2)

....... 331 New Hanover County, North Carolina (Doc. #5609)

................................ ......... 332 Carroll County Department of Land Use, Planning & Development, Maryland (Doc. #6266.1)

................................ ................................ ................................ .... 332 City of Westminster, Colorado (Doc. #7327.2)

................................ .................. 333 Transportation and Storm Water Department, City of San Diego, California (Doc. #7950.1 and #7950.2)

................................ ................................ ......................... 333 Office of Environmental Programs, City of Phoenix, Arizona (Doc. #7986)

.... 334 Board of Douglas County Commissioners, Colorado (Doc. #8145)

.................. 335 Aurora Water (Doc. #8409)

................................ ................................ ................ 335 Alameda Countywide Clean Water Program, California (Doc. #8417)

............. 336 Southern California Association of Governments, et al (Doc. #8534.1)

............ 337 Anne Arundel County, Maryl and (Doc. #8574)

................................ ................. 337 City of Portland, Maine (Doc. #8659)

................................ ................................ 338 Carroll County Board of Commissioners, Maryland (Doc. #8667)

.................... 338 City of Chesapeake, Virginia (Doc. #9615)

................................ ........................ 338 Pasco County, Florida (Doc. #9697)

................................ ................................ ... 340 Board of County Commissioners, White Pine County, Nevada (Doc. #9975)

... 340 Board of Supervisors, Imperial County, California (Doc. #10259)

.................... 340 Board of Supervisors, Imperial County, California (Doc. #10259)

.................... 341 Kendall County Board, Illinois (Doc. #10965)

................................ ................... 34 1Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

14 City of Escondido, California (Doc. #11116)

................................ ..................... 342 Urban Drainage and Flood Control District, Denver, Colorado (Doc. #12263)

. 342 Board of County Commissioners, Mesa County , Colorado (Doc. #12713)

....... 342 City of Palo Alto, California (Doc. #12714)

................................ ....................... 343 Vermont League of Cities and Towns (Doc. #13075)

................................ ........ 343 MS4 NPDES Steering Committee, Palm Beach County, Florida (Doc. #13218)

................................ ................................ ................................ ............................. 343 Natural Resources Division, Public Wor ks Department, Pinellas County, Florida (Doc. #14426.1)

................................ ................................ ................................ .. 344 Bangor Area Storm Water Group, Hampden, Maine (Doc. #14543.1)

.............. 344 City of Buckeye, Arizona (Doc. #14591)

................................ ........................... 344 Public Works, City Golden, Colorado (Doc. #14617)

................................ ........ 346 Board of County Commissioners, Larimer County, Colorado (Doc. #14741)

... 346 Board of County Commissioners, Marion Co unty, Florida (Doc. #14979)

....... 346 City of Glendale, Arizona (Doc. #15054)

................................ ........................... 347 National Association of Counties (Doc. #15081)

................................ ............... 347 Attorney’s Office, Harris County, Texas (Doc. #15097)

................................ .... 349 City of Stockton, California (Doc. #15125)

................................ ........................ 350 City of Arvada, Colorado (Doc. #15153)

................................ ........................... 350 Board of Commissioners, Carroll County, Maryland (Doc. #15190)

................. 351 Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)

......... 351 Utilities Department, City of Santa Maria, California (Doc. #15487)

................ 351 Boulder County and the City of Boulder, Colorado (Doc. #15495)

................... 352 Anderson County, South Carol ina (Doc. #15514)

................................ .............. 352 County of Los Angeles and Los Angeles County Flood Control District, California (Doc. #15620)

................................ ................................ .................... 353 Public Works Department, Contra Costa County, California, et al. (Doc. #15634)

................................ ................................ ................................ ............................. 355 Village of Wellington, Florida (Doc. #15654)

................................ .................... 355 Town of Shady Shores, Texas (Doc. #15709)

................................ .................... 355 Southern California Water Committee (Doc. #16170)

................................ ....... 356 Department of Environmental Services, Clark County, Washington (Doc. #16455)

................................ ................................ ................................ ............................. 359 City of Beaverton, Oregon (Doc. #16466)

................................ .......................... 359 City of Oceanside, California (Doc. #16509)

................................ ..................... 360 Palm Beach County, Florida (Doc. #16647)

................................ ....................... 361 City of Portland, Bureau of Environmental Services (Doc. #16662)

................. 363 Board of Supervisors, Lassen County, California (Doc. #17461)

...................... 363 Board of Supervisors, Amador County, California (Doc. #17450)

.................... 364 Department of Public Works, County of San Diego, California (Doc. #17920) 365 Board of County Commissioners, Marion County, Florida (Doc. #18868)

....... 366

Stormwater Advisor y Committee, DeSoto County, Mississippi (Doc. #19473) 366 Maui County, Hawaii (Doc. #19593)

................................ ................................ . 367 Board of Supervisors, Navajo County, Arizona (Doc. #19569)

......................... 367 Department of Public Works & Engineering, City of Cookeville, Tennessee (Doc. #19619)

................................ ................................ ................................ ............... 368Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

15 Association County Commissioners of Georgia (Doc. #5912)

.......................... 368

California State Association of Counties (Doc. #9692)

................................ ...... 369 Association of California Water Agencies (Doc. #12978)

................................ . 369 Colorado Stormwater Council (Doc. #12981)

................................ .................... 370 National Association of Flood & Stormwater Management Agencies (Doc. #13613)

................................ ................................ ................................ ............... 371 Western Coalition of Arid States (Doc. #14407)

................................ ................ 371 Georgia Municipal Association (Doc . #14527.1)

................................ ............... 372 Florida Rural Water Association (Doc. #14897)

................................ ................ 372 Kentucky League of Cities (Doc. #15227)

................................ ......................... 372 NC League of Municipalities (Doc. #15358)

................................ ..................... 373 South Carolina Association of Counties (Doc. #15573)

................................ ..... 373 The United States Conference of Mayors et al. (Doc. #15784)

.......................... 373 League of Oregon Cities (Doc. #16546)

................................ ............................. 374 Oregon Association of Clean Water Agencies (Oregon ACWA) (Doc. #16613)

................................ ................................ ................................ ............................. 375 Maine Municipal Association (MMA) (Doc. #16630)

................................ ....... 375 NC League of Municipalities (NCLM) (Doc. #17443)

................................ ...... 376 Iowa League of Cities (Doc. #18823)

................................ ................................ . 376 Virginia Municipal Stormwater Association (VAMSA) (Doc. #19517)

............ 377 Pennsylvania Chamber of Commerce and Industry (Doc. #14401)

................... 378 California Building Industry Association et al. (Doc. #14523)

.......................... 378 South Carolina Chamber of Commerce (Doc. #14535)

................................ ...... 379 Greater Houston Partnership (Doc. #14726)

................................ ...................... 380 Institute of Scrap Recycling Industries, Inc. (Doc. #15041)

............................... 380 Federal StormWater Association (Doc. #15161)

................................ ................ 381 National Association of Home Builders (Doc. #19540)

................................ ..... 385 Federal Water Quality Coalition (Doc. #15822.1)

................................ .............. 385 American Society of Civil Engineers (Doc. #19572)

................................ ......... 386 Coalition of Real Estate Associations (Doc. #5058.2)

................................ ....... 387 Southpace Properties, Inc. (Doc. #6989.1)

................................ ......................... 393

Kolter Land Partners and Manatee

- Sarasota Building Industry Association (Doc. #7938.1)

................................ ................................ ................................ .............. 394 Lydig Construction Inc. (Doc. #14147)

................................ .............................. 394

Associated General Contractors of America (Doc. #14602)

.............................. 394 NAIOP Commercial Real Estate Development Association (Doc. #14621)

...... 400 Vulcan Materials Company (Doc. #14642)

................................ ........................ 400 Maryland Chapters of NAIOP (Doc. #15837)

................................ .................... 401 Ames Construction, Inc. (Doc. #17045)

................................ ............................. 401 National Association of Home Builders (Doc. #19540)

................................ ..... 401 North American Meat Association and American Meat Institute (Doc. #13071)

................................ ................................ ................................ ............................. 405 The Mosiac Company (Doc. #14640)

................................ ................................ . 405 Packaging Corporation of America (Doc. #15515)

................................ ............ 406 Hampton Roads Planning District Commission, Virginia (Doc. #9612)

........... 406 Division of Transportation, Kane County, St. C harles, Illinois (Doc. #9831)

... 407Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

16 Roads and Drainage Department, DeKalb County, Georgia (Doc. #13572)

...... 407 Elmore County Highway Department, Wetumpka, Alabama (Doc. #14072)

.... 407 Lake County Division of Transportation, Lake County, Illinois (Doc. #14743) 408 National Association of County Engineers (Doc. #14981)

................................ 408

Union Pacific Railroad Company (Doc. #16370)

................................ ............... 408

Charlotte

- Mecklenburg Storm Water Services (Doc. #3431)

............................. 409 Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1)

.... 409 Beaufort County Stormwater Utility (Doc. #7326.1)

................................ ......... 410 Gateway Water Management Authority, Los Angeles Gateway Region (Doc. #10032)

................................ ................................ ................................ ............... 411 Department of Public Works, Snoh omish County, Washington (Doc. #10749) 411 Minnesota Cities Stormwater Coalition (Doc. #14647)

................................ ..... 413 County of San Diego, California (Doc. #14782)

................................ ................ 416 Southeast Metro Stormwater Authority, Centennial, Colorado (Doc. #14935)

. 417 Department of Public Works, City of Northglenn, Colorado (Doc. #14990)

..... 418 Public Works, Orange County, California (Doc. #14994)

................................ .. 418 SD1 (Doc. #15140)

................................ ................................ ............................. 419 Albuquerque Metropolitan Arroyo Flood Control Authority (Doc. #15221)

..... 420 Louisville and Jefferson County Metropolitan Sewer District (Doc. #15413)

... 422 Central Massachusetts Regional Stormwater Coalition (Doc. #15443.1)

.......... 422 City of Albuquerqu e, New Mexico (Doc. #15456)

................................ ............ 423 National Association of Clean Water Agencies (Doc. #15505)

......................... 423 West Bay Sanitary District, Novato Sanitary District, West County Wastewater District, Union Sanitary District and West Valley Sanitation District, California (Doc. #16610)

................................ ................................ ................................ ..... 424 Sacramento Stormwater Quality Partnership (Doc. #17005)

............................. 424 Ventura County Watershed Protection District (Doc. #18762)

.......................... 426

Nort hern Arizona Municipal Waters Users Association (Doc. #9730)

.............. 427 Northwest Colorado Council of Governments Water Quality/ Quantity Committee (Doc. #10187)

................................ ................................ ................................ ..... 427 Duke Energy (Doc. #13029)

................................ ................................ ............... 427 Colorado Water Congress Federal Affairs Committee (Doc. #14569)

............... 430 EcoSynthesis Scientific & Regulatory Services (Doc. #14586)

......................... 430 National Rural Water Association (Do c. #14623)

................................ .............. 430 Tarrant Water Regional Water District, Fort Worth, Texas (Doc. #14643)

....... 431 Santa Clara Valley Water District (Doc. #14776)

................................ .............. 431 Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

................................ ................................ ................................ ............................. 431 Kentucky Stormwater Association (Doc. #18912)

................................ ............. 431 National Association of Flood & Stormwater Management Agencies (Doc. #19599)

................................ ................................ ................................ ............... 432 American Rivers (Doc. #15372)

................................ ................................ ......... 432 Association of State Floodplain Managers, Inc. (Doc. #19452)

......................... 433 Florida Stormwater Association (Doc. #14613)

................................ ................. 433 Iowa Stormwater Education Program MS

- 4 (Doc. #14511)

.............................. 434

Water Environment Federation (Doc. #16584)

................................ .................. 437Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

17 California Stormwater Quality Association (Doc. #16606)

............................... 438 National Association of Flood & Stormwater Management Agencies (Doc. #19599)

................................ ................................ ................................ ............... 439 Honorable Congressman Ed Perlmutter and Honorable Congressman Mike Coffman (Doc. #17456)

................................ ................................ ...................... 440 Honorable Representative Frankel, Honorable Representative Napolitano and Honorable Representative Dina Titus (Doc. #17458)

................................ ......... 440

7.4.5. Other

................................ ................................ ................................ ......................... 440

S UMMARY R ESPONSE

................................ ................................ ................................ . 440

S PECIFIC C OMMENTS

................................ ................................ ................................ . 440 Oak Ridge Nati onal Laboratory (Doc. #14463)

................................ ................. 440 U.S. House of Representatives Committee on Science, Space and Technology (Doc. #16386)

................................ ................................ ................................ ..... 441 Alaska State Legislature, Alaska Senate Leadership (Doc. #7494.1)

................. 442 Office of Water Management, Pennsylvania Department of Environmental Protection (Doc. #7985)

................................ ................................ ...................... 443 State of Idaho (Doc. #9834)

................................ ................................ ................ 443 State of Hawaii Department of Transpor tation (Doc. #10184)

........................... 444 New Mexico Department of Agriculture (Doc. #13024)

................................ .... 444 Division of Aviation, North Carolina Department of Transportation (Doc. #14766)

................................ ................................ ................................ ............... 445 Florida Department of Environmental Protection (Doc. #15080)

...................... 447 Tennessee Department of Environment and Conservation (Doc. #15135)

........ 449 North Carolina Department of T ransportation (Doc. #15179)

........................... 450 Arizona Game and Fish Department (Doc. #15197)

................................ .......... 450 California Department of Water Resources (Doc. #15245)

................................ 450 Sealaska Corporation (Doc. #15356)

................................ ................................ .. 451 West Virginia Department of Environmental Protection (Doc. #15415)

........... 452 Ohio Department of Natural Resources et al. (Doc. #15421)

............................. 453 San Gabriel Basin Water Quality Authority (Doc. #15642)

............................... 453 Environmental Protection Division, Georgia Department of Natural Resources (Doc. #16348)

................................ ................................ ................................ ..... 454 Pyramid Lake Paiute Tribe (Doc. #17472)

................................ ......................... 454 Lee County, Florida (Doc. #1346.1)

................................ ................................ ... 454 Board of County Commissioners, Sweetwater County, Wyoming (Doc. #6863)

................................ ................................ ................................ ............................. 455 City of Thornton, Colorado (Doc. #7328.1)

................................ ....................... 455 Transportation and Storm Water Department, City of San Diego, California (Doc. #7950.2)

................................ ................................ ................................ .............. 456

Office of Environmental Programs, City of Phoenix, Arizona (Doc. #7986)

.... 457 Aurora Water (Doc. #8409)

................................ ................................ ................ 457 Board of Supervisors, Imperial County, California (Doc. #10259)

.................... 459 Mecklenburg County Government, North Carolina (Doc. #10946)

................... 459 City of Escondido, California (Doc. #11116)

................................ ..................... 460 City of Palo Alto, California (Doc. #12714)

................................ ....................... 460 Charlotte County, Florida (Doc. #13061)

................................ ........................... 461Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

18 Waters of the United States Coalition (Doc. #14589)

................................ ........ 461 Valley Center Municipal District, California (Doc. #14752)

............................. 464 Washington County Commission, Utah (Doc. #14991)

................................ ..... 464 City of Glendale, Arizona (Doc. #15054)

................................ ........................... 465 New York City Law Department (Doc. #15065)

................................ ................ 466 Flood Control and Water Conservation, Alameda County, California (Doc.

#1507 4)

................................ ................................ ................................ ............... 467 National Association of Counties (Doc. #15081)

................................ ............... 467 Painesville Township, Ohio (Doc. #15183)

................................ ........................ 468 Los Angeles Department of Water and Power (Doc. #15238)

........................... 468 Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)

......... 471

District of Columbia Water and Sewer Authority (Doc. #15379)~

.................... 472 County of Los Angeles and Los Angeles County Flood Control District, California (Doc. #15620)

................................ ................................ .................... 4 73 City of Riverside, California (Doc. #15824)

................................ ...................... 475 Colorado Springs Utilities (Doc. #16351.1)

................................ ....................... 475 South Kansas Groundwater Management District No. 3 (Doc. #16465)

........... 476 City of Beaverton, Oregon (Doc. #1 6466)

................................ .......................... 476 Brady Township Supervisors, Clearfield County, Pennsylvania (Doc. #16480) 477 Palm Beach County, Florida (Doc. #16647)

................................ ....................... 478 City of Portland, Bureau of Environmental Services (Doc. #16662)

................. 480 Office of the Mayor and City Council, City of Palo Alto, California (Doc. #16799)

................................ ................................ ................................ ............... 480 Board of Sup ervisors, Amador County, California (Doc. #17450)

.................... 482 Board of Supervisors, Lassen County, California (Doc. #17461)

...................... 483 Board of County Commissioners, Pitkin County, Colorado (Doc. #18921)

...... 483 California State Association of Counties (Doc. #9692)

................................ ...... 484 Association of California Water Agencies (Doc. #12978)

................................ . 486 California Association of Sanitation Agencies (Doc . #12832)

........................... 487 Colorado Stormwater Council (Doc. #12981)

................................ .................... 490 Association of Clean Water Administrators (Doc. #13069)

............................... 491 National Association of Flood & Stormwater Management Agencies (Doc. #13613)

................................ ................................ ................................ ............... 492 Western Coalition of Arid States (Doc. #14407)

................................ ................ 492 Florida Rural Water Association (D oc. #14897)

................................ ................ 493 Western Urban Water Coalition (Doc. #15178)

................................ ................. 494 Pennsylvania Municipal Authorities Association (Doc. #15374)

....................... 495 The United States Conference of Mayors et al. (Doc. #15784)

.......................... 495 Washington State Water Resources Association (Doc. #16543)

........................ 497 Iowa League of Cities (Doc. #18823)

................................ ................................ . 500 Board of County Commissioners, Pitkin County, Colorado (Doc. #18921)

...... 501 Golf Course Superintendents Association of America et al. (Doc. #14902)

...... 501 American Chemistry Council (Doc. #15186)

................................ ..................... 502 Aluminum Association (Doc. # 15388)

................................ .............................. 506 Dow Chemical Company (Doc. #15408)

................................ ............................ 508 Rubber Manufacturers Association (Doc. #15419)

................................ ............ 510Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

19 Texas Chemical Council (Doc. #15433)

................................ ............................. 512 CLUB 20 (Doc. #15519)

................................ ................................ ..................... 513 Federal Water Quality Coalition (Doc. #15822.1)

................................ .............. 513 Minnesota Chamber of Commerce (Doc. #16473)

................................ ............. 516 American Society of Civil Engineers (Doc. #19572)

................................ ......... 517 Pinnacle Construction & Development Corp. (Doc. #1807)

.............................. 518 Kingsport Horizontal Property Regime and Kingsport Homeowners Association, et al. (Doc. #4847)

................................ ................................ .............................. 518 Kerr Environmental Services Corp. (Doc. #7937.1)

................................ ........... 519

Vulcan Materia ls Company (Doc. #14642)

................................ ........................ 520 West Valley Planned Communities (Doc. #18906)

................................ ............ 520 National Association of Home Builders (Doc. #19540)

................................ ..... 522 Texas Mining and Reclamation Association (Doc. #10750)

.............................. 524 Wyoming Mining Association (Doc. #14460)

................................ .................... 526 CONSOL Energy, Inc. (Doc. #14614)

................................ ................................ 527 Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #14619)

................................ ................................ ................................ ............... 527 National Mining Association (Doc. #15059)

................................ ...................... 528 American Petroleum Institute (Doc. #15115)

................................ ..................... 531 Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

................................ ................................ ................................ ............... 532 Coeur Mining, Inc. (Doc. #16162)

................................ ................................ ...... 534 Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #18016)

................................ ................................ ................................ ............... 535 Alameda County Cattlewomen (Doc. #8674)

................................ ..................... 536 Illinois Corn Growers Association (Doc. #13996)

................................ ............. 538 USA Rice Federation (Doc. #13998)

................................ ................................ .. 539 The Mosiac Company (Doc. #14640)

................................ ................................ . 540 Irvine Ranch Water District (Doc. #14774)

................................ ........................ 541 Browns Valley Irrigation District, California (Doc. #14908)

............................. 542 Georgia Paper & Forest Products Association (Doc. #14924)

........................... 543 Klamath Water Users Association (Doc. #15063)

................................ .............. 543 Beet Sugar Development Foundation (Doc. #15368)

................................ ......... 544 Weyerhaeuser Company (Doc. #15392)

................................ ............................. 544 Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)

..................... 546 American Forest & Paper Association (Doc. #15420)

................................ ....... 546 Packaging Corporation of America (Doc. #15515)

................................ ............ 549 Dairy Cares (Doc. #16471)

................................ ................................ ................. 550

Anderson

- Cottonwood Irrigation District (Doc. #17085)

................................ .. 550 Hampton Roads Planning District Commission, Virginia (Doc. #9612)

........... 551 Lake County Division of Transpor tation, Lake County, Illinois (Doc. #14743) 551 Airlines For America (Doc. #15439)

................................ ................................ .. 551 WateReuse Association (Doc. #1349.1)

................................ ............................. 553 City of Om aha, Nebraska (Doc. #9733)

................................ ............................. 554 Las Virgenes

- Triunfo Joint Powers Authority, California (Doc. #13847)

....... 554 County of San Diego, California (Doc. #14782)

................................ ................ 554Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

20 Public Works, Orange County, California (Doc. #14994)

................................ .. 555 National Association of Clean Water Agencies (Doc. #15 505)

......................... 556 South Orange County Wastewater Authority, California (Doc. #15619)

........... 557 Orange County Sanitation District, California (Doc. #16335.1)

........................ 558 Sacramento Stormwater Quality Partnership (Doc. #17005)

............................. 562 Central Arizona Project (Doc. #3267)

................................ ................................ 563 Clearwater Watershed District et al (Doc. #9560.1)

................................ ........... 563 Northwest Colorado Council of Governments Water Quality/ Quantity Committee (Doc. #10187)

................................ ................................ ................................ ..... 564 Southeast Florida Utility Council (Doc. #11879)

................................ ............... 564 Duke Energy (Doc. #13029)

................................ ................................ ............... 565

Florid a Power & Light Company (Doc. #13615)

................................ ............... 565 Calleguas Municipal Water District, Thousand Oaks, California (Doc. #13959)

................................ ................................ ................................ ............................. 566 Southern Company (Doc. #14134)

................................ ................................ ..... 56 7 Southern Nevada Water Authority (Doc. #14580)

................................ ............. 568 Central Arizona Water Conservation District (Doc. #1 4585)

............................ 569 The Clean Energy Group Waters Initiative (Doc. #14616)

................................ 569 Metropolitan Water District of Southern California (Doc. #14637)

................... 570 Santa Clara Valley Water District (Doc. #14776)

................................ .............. 571 The Fertilizer Institute (Doc. #14915)

................................ ................................ 572 Salt River Project Agricultural and Power District and the Salt River Valley Water Users Association (Doc. #14928)

................................ ............................ 573 Nucor Corp. (Doc. #14963)

................................ ................................ ................ 574

American Public Po wer Association (Doc. #15008)

................................ .......... 575 Utility Water Act Group (Doc. #15016)

................................ ............................. 576 Edison Electric Institute (Doc. #15032)

................................ .............................. 577 Chino Basin Watermaster (Doc. #15046)

................................ ........................... 578 San Diego County Water Authority, California (Doc. #15089)

......................... 579 Luminant (Doc. #15100)

................................ ................................ ..................... 582 Northern Colorado Water Conservancy District, Berthoud, Colorado (Doc. #15114)

................................ ................................ ................................ ............... 583 Bella Vista Water District, Redding, California (Doc. #15149)

......................... 583 Association of Metropolitan Water Agencies et al. (Doc. #15157)

.................... 584 Alameda County Flood Control and Water Conservation District, Zone 7, California (Doc. #15259)

................................ ................................ .................... 585 Beaver Water District, Lowell, Arkansas (Doc. #15405)

................................ ... 586 Eastern Municipal Water District, Perris, California (Doc. #15409)

................. 586 Grand Valley Water Users Association et al. (Doc. #15467)

............................. 588 Aqua America, Inc. (Doc. #15529)

................................ ................................ ..... 588 Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

................................ ................................ ................................ ............................. 589

San Luis & Delta

- Mendota Water Authority, Los Ba nos, California (Doc. #15645)

................................ ................................ ................................ ............... 591 SCANA Services, Inc. (Doc. #15660)

................................ ................................ 592 Association of Electronic Companies of Texas, Inc. (Doc. #16433)

.................. 592Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

21 Inland Empire Utilities Agency, California (Doc. #16520)

................................ 593 ARIPPA (Doc. #16545.1)

................................ ................................ ................... 594 Cucamonga Valley Water District, California (Doc. #16556)

........................... 595 Castaic Lake Water Agency, Santa Clarita, California (Doc. #17061)

.............. 596 Cloud Peak Energy (Doc. #18010)

................................ ................................ ..... 597 Xcel Energy (Doc. #18023)

................................ ................................ ................ 597

WateRe use Association (WateReuse) (Doc. #12758)

................................ ........ 597 Eastern Municipal Water District, Perris California (Doc. #15544)

.................. 598 George Washington University Regulatory Studies Center (Doc. #13563)

....... 601 Water Environment Federation (Doc. #16584)

................................ .................. 602

7.5. S UPPLEMENTAL C OMMENTS O N F EATURES AND W ATERS N OT J URISDICTIONAL

....... 605

S UMMARY R ESPONSE

................................ ................................ ................................ . 605

S PECIFIC C OMMENTS

................................ ................................ ................................ . 605 Anonymous (Doc. #2893)

................................ ................................ .................. 605 Departme nt of Public Works, City of Harrisonville, Missouri (Doc. #4038.2)

. 605 William P. Minervini (Doc. #4040.2)

................................ ................................ 606 Town of Carolina Beach, North Carolina (Doc. #5618)

................................ .... 608 Black Hills Corporation (Doc. #6248)

................................ ................................ 608 Amber Earnhardt (Doc. #6761)

................................ ................................ ......... 608

Su nny Washburn (Doc. #7368)

................................ ................................ .......... 615 City of Pittsfield (Doc. #7629)

................................ ................................ ........... 615 Merrill Hewson Smith (Doc. #8323)

................................ ................................ . 616 Franconia Township (Doc. #8661)

................................ ................................ .... 623 Paul Wetzel (Doc. #9219)

................................ ................................ .................. 623 Floyd County Farm Bureau, Inc. (Doc. #9673)

................................ ................. 624 Minnesota Association of County Agricultural Ins pectors (Doc. #10970)

....... 625 Weld County (Doc. #12343)

................................ ................................ .............. 625 North Carolina Water Quality Association (Doc. #12361)

............................... 626 Florida Water Environment Association (Doc. #12856)

................................ ... 627 Family Farm Alliance (Doc. #12983)

................................ ................................ 628 Ground Water Protection Council (Doc. #13055)

................................ ............. 629 Tamara Choat (Doc. #13701)

................................ ................................ ............ 629 Board of County Commissioners, Lewis and Clark County (Doc. #14065)

..... 629 A. Romberg (Doc. #14096)

................................ ................................ ............... 630 El Dorado Holdings, Inc. (Doc. #14285)

................................ ........................... 630 Westlands Water District (Doc. #14414)

................................ ........................... 630 Union for Reform Judaism (Doc. #14560)

................................ ........................ 632 State of Oklahoma (Doc. #14625)

................................ ................................ ...... 632 State of Oklahoma (Doc. #14773)

................................ ................................ ...... 633 Santa Clara Valley Water District (Doc. #14776)

................................ ............. 633 Region 10 Tribal Caucus (Doc. #14927)

................................ ........................... 634 City of Minneapolis Water Resources (Doc. #14975.1)

................................ .... 634 Clean Water Action (Doc. #15015)

................................ ................................ ... 639 San Joaquin County Board of Supervisors (Doc. #15017.1)

............................. 639 Idaho Conservation League (Doc. #15053)

................................ ....................... 640 Lea Soil and Conservation District Board of Supervisors (Doc. #15144.1)

...... 646Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

22 Destin Water Users , Inc. (Doc. #15357)

................................ ............................. 647 Steel Manufacturers Association and Specialty Steel Industry of North America (Doc. #15416)

................................ ................................ ................................ ..... 647 Massachusetts Water Resources Authority (Doc. #15546)

................................ 648 City of Portland, Maine (Doc. #15582)

................................ .............................. 649 Countrymark Cooperative Holding Corp oration, LLC; Countrymark Refining and Logistics, LLC (Doc. #15656)

................................ ................................ ............ 649 Pennsylvania Grade Crude Oil Coalition (Doc. #15773)

................................ ... 651 Indiana Department of Environmental Management (Doc. #16440)

................ 651 Pershing County Water Conservation District (Doc. #16519)

.......................... 651 Kaweah and Tule Water Managers (Doc. #16544)

................................ ........... 652 Judy Petersen (Doc. #16580)

................................ ................................ ............. 653 Kentucky Waterways Alliance (Doc. #16581)

................................ .................. 654 Lake County Stormwater Management Commission (Doc. #16893)

................. 655 D. Gillham (Doc. #16906)

................................ ................................ ................. 655 Arizona Rock Products Association (Doc. #17055)

................................ .......... 655 D. Solem (Doc. #17627)

................................ ................................ ..................... 656 Anonymous (Doc. #18770)

................................ ................................ ................ 657 Alliant Energy Corporate Services, Inc. (Doc. #18791)

................................ ..... 657 Anonymous (Doc. #18801)

................................ ................................ ................ 658 Valley County (Doc. #18918)

................................ ................................ ............. 658 Anonymous (Doc. #18943)

................................ ................................ ................ 659 Anonymous (Doc. #18955)

................................ ................................ ................ 659 City of Olathe Kansas (Doc. #18982)

................................ ................................ 660 Kevin and Nicole Keegan (Doc. #19128)

................................ .......................... 660 Western States Water Council (Doc. #19349)

................................ ................... 660

Coachella Va lley Water District, Riverside County, California (Doc. #19455) 661 Maui County (Doc. #19543)

................................ ................................ .............. 661 Las Vegas Valley Watershed Advisory Committee (Doc. #19570)

.................. 663 Chicken & Egg Association of Minnesota (Doc. #19584)

................................ 663 San Luis Water District (SLWD), Los Banos, California (Doc. #20488)

......... 663 Alpine County Board of Supervisors, County of Alpine, California (Doc. #20492)

................................ ................................ ................................ ............... 664 Highlands Ranch Metropolitan District, Highlands Ranch, Colorado (Doc. #20499)

................................ ................................ ................................ ............... 664 Atascadero Mutual Water Company (Doc. #20508)

................................ ......... 664

A TTACHMENTS AND R EFERENCES

................................ ................................ ............................. 665

S UPP LEMENTAL R EFERENCES :

................................ ................................ ................................ .. 680Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

23 

## Topic 7. F EATURES AND 

## W ATERS 

## N OT 

## J URISDICTIONAL

Summary Response

In the final rule, the agencies have provided clarified information regarding features that are not considered “waters of the United States”, even where those features would otherwise meet the criteria for jurisdiction under paragraphs (a)( 4 ) though (a)(8)

. Collectively referred to as “exclusions”, this portion of the rule reflect s the agencies’ long

- standing practice and technical judgment that certain waters and features are not subject to the CWA. The exclusions are an important aspect of the agencies’ policy goal of providing clarity and certainty. Just as the categori cal assertions of jurisdiction over tributaries and adjacent waters, as defined, simplify the jurisdiction issue, the categorical exclusions will likewise simplify the process, and they reflect the agencies’ determinations of the lines of jurisdiction base d on science, the case law and the agencies’ experience and expertise.

The agencies received numerous comments on the exclusions contained in the proposed rule from the public, potentially regulated entities, and the Science Advisory Board. Many

commenter s felt that the proposed language regarding ex clusions was not specific enough or did not define important terms used. In response to these comments, the agencies have broadened the preamble discussion of this section and expanded the number of exclusions listed in order to increase clarity regarding the agencies’ intent. Some commenters stated the exclusions shou ld not apply where a water has a significant nexus or meets one of the categories in paragraph (a). The agencies disagree with these suggestions and believe it is a reasonable approach for the rule to clearly identify what waters are and are not jurisdictional. The Science Advisory Board and several other commenters stated that the proposed exclusions did not reflect the scientific record

or lacke d adequate scientific justification. The agencies ’ determination that certain features are not “waters of the United States” is not solely a scientific conclusion. Although guided by the available scientific information, exclusions are also guided by Supr eme Court cases , statutory language and regulatory policies, and the agencies’ technical expertise and experience. Thus, just

as a significant nexus determination is not a purely scientific inquiry, the exclusions reflect a determination by the agencies th at the features detailed should not be considered “waters of the

United States

, ” based on an evaluation of the law, science, and functions provided by these features. The agencies believe the exclusions contained in the final rule provide a balance

between protection and clarity that is reasonable and consistent with the statute’s goals and objectives.

It is important to note the difference between features not considered to be “waters of the United States” (exclusions) and activities covered under CWA se ction 404(f), also known as “exemptions

. ” Recognizing the vital role of farmers in providing the nation with food and fiber, the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal farming activities such as seeding, harvestin g, cultivating, planting, soil and water conservation practices, and other activities from the Section 404 permitting requirement. “Normal” farming, silviculture, and ranching is clarified in the agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and ongoing activities to distinguish from activities needed to convert an area to farming, silviculture, or ranching and activities that convert a water to a non

- water. WhileClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

24 waters subject to normal farming, silviculture, or ranching practices may be determined to significantly affect the chemical, physical, or biological integrity of downstream navigable waters, the agencies believe that such determination should be made based on a case

- specific basis instead of by rule. The agencies also recognize that waters subject to normal farming, silviculture, or ranching practices are often associated with modifications and alterations including drainage, changes to vegetation, and other disturbances the agencies believe should be specifically considered in making a significant nexus determination. Nothing in this rule changes the exemptions covered in 404(f) or current agency implementation of the exemptions.

In the final rule all existing exclusions from the definition of “waters of the United States” are retained, and several exclusions reflecting longstanding agency practice are added to the regulation for the first time. Prior converted cropland and waste t reatment systems have been

excluded from the definition of “waters of the United States” definition since 1992 and 1979 respectively, and only ministerial changes are made. These two exclusions remain substantively and operationally unchanged. The agencies add exclusions for waters and features previously identified as generally exempt in preamble language from Federal Register notices by the Corps on November 13, 1986, and by EPA on June 6, 1988. This is the first time these exclusions have

been establishe d by rule. The agencies for the first time also establish by rule that certain ditches are excluded from jurisdiction. The agencies add exclusions for groundwater and erosional features, as well as exclusions for some waters that were identified in public comments as possibly being found jurisdictional under proposed rule language where this was never the agencies’ intent, such as stormwater control features constructed to convey, treat, or store stormwater, and cooling ponds that are created in dry land. A rtificial lakes and ponds subject to this exclusion are created in dry land to hold or store water for uses where isolation from downstream waters for the duration of the associated activity is essential. Conveyances created in dry land that are physicall y connected to and are a part of these artificial lakes and ponds created in dry land are also excluded from jurisdiction under this provision. These artificial features work together as a system, and it is appropriate to treat them as one functional unit

. These exclusions reflect current agencies’ practice, and their inclusion in the rule as specifically excluded furthers the agencies’ goal of providing greater clarity over what waters are and are not protected under the CWA. Waters and features that are excluded under paragraph (b) of the final rule cannot be determined to be jurisdictional under paragraph s (a) (4) through (a)(8)

.

Many commenters stated that all “man

- made” facilities and features should be added to the list of exclusions. The agencies do not feel that this addition would be appropriate, as the term “man

made” would potentially apply to a large number of aquatic features, without regard to the potential for significant nexus to traditional navigable waters, interstate waters, or territorial seas. Given the extensive human modification of watercourses and hydrologic systems throughout the country, it is often difficult to distinguish between natural watercourses and watercourses that are wholly or partly modified or constructed. Many features that potentially convey waters and/or pollutants to (a)(1)

- (a)(3) waters have been historically created or altered, such as channelized streams and impounded areas, and to add a broad exclusion for these waters to the list of

excluded features would not i mprove regulatory clarity, nor be consistent with the goals of the statute. The agencies believe the expanded exclusions for cooling ponds, stormwater control features, and wastewater recycling structures created in dry land, as well as certain types ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

25 di tches, provide clarity regarding many of the features that prompted these comments, as well as the necessary environmental safeguards.

Overall the agencies received many comments related to the jurisdictional status of ditches. In

response to comments, t he agencies have revised the exclusions for ditches to more effectively reflect the agencies’ intent and provide greater clarity and consistency. The agencies’ approach

to ditches in the final rule balances the protection of ditches that replace or funct ion as tributaries with the exclusion of ditches that provide minimal, if any, tributary function and have not been historically regulated in practice. Thus, the treatment of ditches in the final rule is based on the science, the discretion provided by th e statute, the direction provided by case law, and the overwhelming stakeholder desire for more effective and understandable rules to reduce

the need for case

- by

- case jurisdictional determinations. The revised ditch language excludes:

“(A) ephemeral ditc hes that are not a relocated tributary or excavated in a tributary; (B) intermittent ditches that are not a relocated tributary or excavated in a tributary or drain wetlands; (C) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (a)(1) through (a)(3) of this [rule].”

A ditch that meets any one of these three conditions is not a water of the United States. These exclusions apply independently, so a ditch is excluded if it meets just one of these excl usions and even if it doesn’t meet any of the others. Compendium 6 of this RTC focuses on “Ditches,” and section 6.2 of that compendium is specifically centered on the exclusions for ditches in the final

rule.

For more information on the exclusion specif ic to waste treatment systems, see the summary response included in the section titled “ Waste Treatment System (WTSE) ” below. For more information on the exclusion specific to prior converted cropland, see the summary response

included in the section titled “ Prior Converted Cropland (PCC) ” below

. For information regarding Municipal Separate Storm Sewer Systems (MS4) and other stormwater control features, see the summary response included in the section titled “ MS4s and other stormwater management featu res ” below . The essays and individual responses throughout this compendium further respond to the individual issues raised in this section

.

Several commenters also expressed concerns that features listed in the exclusions as not

considered “waters of the United States” could serve as a jurisdictional connection for other waters under the proposed rule. The science overwhelmingly supports the conclusion that waters can remain strongly connected even where the connection is through a non

- jurisdictional feat ure. See Technical Support Document Sections II and IX . There is no basis in the statute or caselaw to ignore the significant effects a water has on downstream waters simply because the connection exists through a non

-

jurisdictional feature. In response to these and other comments, however, the agencies have made several clarifications in the final rule. For tributaries, some excluded features, such as waste treatment systems or lawfully constructed grassed waterway s , may occur within a covered tributary segment; while the water above and below the excluded feature is jurisdictional if it meets the definition of tributary, the excluded feature does not become jurisdictional. In the same way, the excluded feature does not render the upstream portion of theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

26 covered tributary excluded, recognizing that the upstream portion retains its significant nexus to downstream waters. For purpose s of determining adjacent waters, the agencies are defining limits for “neighboring” primarily based on the reliance of a 100

- year floodplain, as recommended by the public and based on science. By e stablishing a distance

- based threshold for adjacency, the agencies have removed the possibility that a water could be determined to be categorically jurisdictional solely because of the presence of a hydrologic connection through an excluded feature. For waters considered under (a)(7) or (a)(8), the presence of a hydrologic connection from an excluded feature may be an important factor in evaluating a case

- specific significant nexus, but does not on its own demonstrate that a significant nexus is present

.

In addition, it is important to note that the features discussed under exclusions may function as “point sources” under CWA section 502(14)), such that discharges of pollutants to w aters through these features would be subject to other CWA regulations (e.g., CWA section 402).

Specific Comments

Gila River Indian Community (Doc. #13619)

7.1 One area of the Proposed Rule that the Community supports is the Agencies’ decision to promulgate, in a formal regulation, waterways that the Corps had been excluding from jurisdiction as a matter of policy. It has been the Agencies’ policy not to extend jurisdiction over certain waterways and water features identified in the Proposed Rule, but the Corp s had reserved the right to assert jurisdiction over them on a case

- by

- case basis. The Agencies clearly intend that these categorical exemptions add clarity for landowners. While this should be the case, it is important that the Final Rule address

some of the related ambiguities included in the Proposed Rule. For example, what is a “ditch excavated in a wholly upland region?” Moreover, while these categorical exemptions might provide some regulatory relief, the Proposed Rule does not make clear

who has the burden of proving that an exemption applies.

As another example, would a series of detention basins within a drainage channel that slowly release storm water downstream into a waterway that eventually flows into a jurisdictional water qualify as non

- jurisdictional “artificial ponds”? Categorical exemptions should be clearly defined and clarified, especially in light of the proposed elimination of the Wetlands Delineation Manual, which provided guidance to the regulated community. (p. 7

- 8)

Agency Response: See summ ary response above and the s umm a r y resp onse at
7.4.4 . It is the Government’s burden to demonstrate that a water is a “water of the

United States.”

Texas Commission on Environmental Quality (Doc. #14279.1)

7.2 Additional categories should be added to provide m ore examples of waters that will never be identified as jurisdictional waters. In 33 CRF §328

. 3(b), various categories of water bodies are listed as non jurisdictional. This new section is potentially helpful, but additional categories should be added to h elp address the uncertainty that is currently associated with the proposed provision for "other waters" in 38 CFR §328.3(a)(7). (p. 8)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

27 Agency Response: See summary response above

.

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)

7.3 The proposed rule as drafted creates more confusion than it clarifies. PDA is disappointed in the proposed rule's lack of clarity due to ambiguous or undefined terms and phrases. Terms and phrases throughout the proposal are left undefined, or the definition is left so ambiguo us that farmers will be left wondering, with no possible way of determining, whether waters on their property will be jurisdictional or not. The proposed rule only

increases confusion...

allowing for exempted features, such as groundwater, gullies, and rills to serve as connections that can render a feature jurisdictional "adjacent water" or "other water." (p. 4)

Agency Response: See summary response above

.

State of Oklahoma (Doc. #14625)

7.4 III. Exemptions Further Clarified or Removed Altogether

While the Agencies' efforts to e xempt certain water features and activities from CWA jurisdiction are noble, in many cases it has arguably led to erosion of exemptions we believe were already well established prior to this proposal. Though embodied in a separate document outside this pro posed rule to define WOTUS, the Agencies' proposed Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)( 1 )(A) ("Interpretive Rule") provides an excellent example of such unintended consequences. The effect of the proposed Interpr etive Rule is to narrow the scope of agricultural activities exempt from CWA jurisdiction despite the Agencies' stated intent otherwise. We reiterate our request to withdraw the proposed Interpretive Rule and suggest that the exemptions for ditches and som e other features proposed within the WOTUS rule suffer from the same unintended consequences without significant clarification. (p. 4)

Agency Response: See summary response above

. While not relevant to the this rule, the Interpretive Rule Regarding the Applicability of Cle an Water Act Section 404(f)(1)(A) was withdrawn on January 29, 2015.

Tennessee Department of Environment and Conservation (Doc. #15135)

7.5 The CWA exclusions of groundwater and certain other exclusions listed in the proposed rule and the current regulation d o not have scientific justification. The available science shows that groundwater connections, particularly via shallow flow paths in confined aquifers, can be critical in supporting the hydrology and biogeochemical functions of

wetlands and other waters. (p. 12)

Agency Response: See summary response above and s umm a r y resp on se at 7.3.6

. The agencies include an exclusion for groundwater, including groundwater drained through subsurface drainage systems. As discussed in the preamble to the proposed rule, the agencies have ne ver interpreted “waters of the United States” to include groundwater. The exclusion does not apply to surface expressions of groundwater,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

28 as some commenters requested, such as where groundwater emerges on the surface and becomes baseflow in streams or spri ng fed ponds.

7.6 The proposed rule includes exclusions not justified by science. There is a lack of scientific knowledge to determine if ditches should be categorically excluded. Although gullies, rills, and non

- wetland swales are excluded, these features can be important conduits for moving water between jurisdictional waters, making them important with respect to hydrological and other forms of connectivity. Although excluded from jurisdiction, artificial lakes or ponds, or reflections pools, created by exca vation, diking or construction can be directly connected to jurisdictional waters by groundwater, which may be shallow as well as deep groundwater in unconfined aquifers. (p. 13)

Agency Response: See summary response above

.

Southern Ute Indian Tribe Growth Fund (Doc. #1538 6)

7.7 9. Comments on the exclusion of manmade structures

With respect to the exclusion in the Proposed Rule of several manmade structures, i.e.,

artificial lakes or ponds, artificial reflecting pools or swimming pools, and small

ornamental waters which are “created by excavating and/or diking dry land” from jurisdictional status, it is recommended that a definition is provided for “dry land.”

Recommendations:

A definition for dry land should be provided in the Proposed Rule ... (p. 9)

Agency Response: As stated in the preamble, the phrase “dry land” appears in the 1986 and 1988 preambles, and the agencies believe the term is well understood based on the more than 30 years of practice and implementation. But in keeping with the goal of providing greater clarity, the agencies clarify that “dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like. However, it is important to note that a

“water of the United States” is not considered “dry land” if it lacks water at a given time. Similarly, an area remains “dry land” even if it is wet after a rainfall event.

Pike Peak Area Council of Governments, Colorado (Doc. #9732)

7.8 The proposed language is so broadly drafted that without m odifications it will most likely encompass, and subject to further permit scrutiny, what can be characterized as "beneficial" infrastructure activities. These activities include: (1) the construction and operation of ponds and lagoons associated with water " delivery/treatment systems (there is a "wastewater" system exemption, but no comparable water system exemption); (2) the construction and operation of recharge and reuse facilities being employed in response to climate variability; and (3) the constructi on and maintenance of stormwater control facilities, including "green infrastructure" projects. To unnecessarily erect additional barriers to the completion of such activities is unwarranted. (p. 3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater re cycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agenciesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

29 recogn ize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water

reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into ground water via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.

The exclusion also covers water distributary structures that are built in dry la nd for water recycling. These features often connect or carry flow to other water recycling structures, for example a channel or canal that carries water to a percolation pond. The agencies have not considered these water distributary systems jurisdictiona l where they do not have surface connections back into, and contribute flow to, “waters of the United States.” In contrast, the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, remo ving water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land. The exclusion in paragraph (b)(7) codifies long

standing agency pract ice and encourages water management practices that the Agencies agree are important and beneficial.

Northwest Florida Utility Managers Council (Doc. #14573)

7.9 In their proposed rule, EPA provides numerous exclusions. But the exclusions are just as confusing as the rest of the rule. For instance wastewater treatment plants are excluded but what happens if it discharges to a non

- jurisdictional water that is suddenly rendered jurisdictional? In addition groundwater is excluded but what happens if that groundwate r discharges to a traditional jurisdictional water and that groundwater contains a high level of nitrogen or phosphorus. EPA will most certainly want to take action if they find the source of the N/P comes from a farm or a treatment facility or any number of sources of those nutrients. (p. 2)

Agency Response: With respect to what happens with NPDES permits when jurisdictional status changes as a result of the final rule, please see summary

response s at 7.4.4 and 12.3. Nothing in the final rule changes the legal requirement s regarding discharges of pollutants which require a permit. As the preamble notes,

t he exclusion for groundwater does not apply to surface expressions of groundwater
, such as where groundwater emerges on the surface and becomes baseflow in streams or spring fed ponds, or where groundwater is pumped and discharged intoClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

30 surface waters of the United States. The final rule does not change existing statutory exemptions , such as for discharges of agri cultural stormwater.

Broward County, Florida (Doc. #15395)

7.10 The B oard...supports legislation that:

Clarifies that CWA jurisdiction does not include isolated, intrastate, or non

- navigable waters such as isolated ponds, ditches, and other channels containing in termittent or ephemeral water flows occurring during less than three months of the year as “navigable

waters” or “waters of the United States. Broward County finds that the proposed rule specifically excludes from jurisdiction waste treatment ponds and art ificial ponds; upland ditches with less than perennial flow; and ditches that do not contribute flow to a recognized water of the US. In addition, the proposed rule clarifies jurisdiction further by adding a definition for “tributaries” (undefined in the c urrent regulations) which excludes intermittent and ephemeral streams that do not contribute flow to a recognized water of the US. (p. 2)

Agency Response: See summary response above. The agencies have modified the definition of tributary in the final rule, see preamble sec tions IV.F and G and Technical Support Document sections VII and VIII for more information on tributaries and adjacent waters.

Public Works, Ramsey County, Minnesota (Doc. #16665)

7.11 Comments related to explicit exclusions

- Ramsey County supports the LGAC re port
recommendation that man

- made components of a MS4 permitted stormwater conveyance system be excluded from WOTUS including manmade green infrastructure and manmade conveyance components such as manmade gutters, manmade ditches, manmade drains,

and manma de ponds. Natural conveyance components should be included in WOTUS including natural wetlands and modifications to natural wetlands. Similarly, MCSG proposes a specific exclusion from WOTUS for fully

- constructed stormwater control measures Including const ructed stormwater ponds, constructed stormwater wetlands, rain gardens, infiltration devices and structures, swales, Low Impact Development structures and BMPs, pipes, streets, curbs, gutters, roadside ditches, man

- made ditches, man

- made channels, storm dr ains, and other constructed stormwater control and conveyance structures, devices, and features. MCSC [Minnesota Cities Stormwater Coalition] identifies three specific exceptions to the exclusion for fully

- constructed stormwater

control measures. These exc eptions are included in WOTUS and include 1) stormwater control measures constructed at the approximate location of similar types of natural waters; 2) natural water resources with stormwater conveyance pipes discharging to them

and with constructed outlet s; and 3) stormwater control measures subject to the ebb and flow of the tide. The LGAC report recommends the EPA Identify regional areas where regional jurisdictional determination as WOTUS could be problematic In terms of sea level rise and fall, or wher e groundwater and surface water flow are intermixed. For these areas, the EPA should develop region

- specific criteria for determining WOTUS jurisdiction. The rule should explicitly specify when ditches are WOTUS jurisdictional. Ramsey County supports recom mended language by Alabama DOT to exclude roadsideClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

31 ditches from WOTUS, defined as "excavated channels adjacent to roadways with less than perennial flow constructed for transportation and stormwater conveyan ce" . (p. 1

- 2)

Agency Response: See summary response above . The fi nal rule applies nationwide; any case

- specific evaluation of jurisdiction could consider site

- specific and region

- specific information

.

Board of Supervisors, Amad or County, California (Doc. #17 4 5 0)

7.12 We concur that categorizing waters that will "never" be subject to CWA jurisdiction will be helpful. We encourage the agencies to define the category...clarifying water bodies that will always be subject to the CWA jurisdiction. We note in particular that "interstate waters, all other waters that could affect int erstate or foreign commerce, impoundments of waters of the United States, tributaries, and adjacent wetlands" as currently defined in the regulations do not appear anywhere in the CWA. We urge the agencies to incorporate those interstate waters, all other waters, impoundments of waters, tributaries and adjacent wetlands in the category of "never subject to the CWA", where a significant nexus to "navigable waters" as explained above is unlikely...we urge the agencies to explicitly classify the following as wat ers that will never be subject to the CWA jurisdiction.

 Waters from water reuse facilities

 Roadside ditches designed as part of the road drainage structure

 Ditches used to convey municipal storm water discharge under the Municipal Separate Storm Water Sewe r System (MS4) program

 Water conveyance systems for flood control purposes (p. 3)

Agency Response: See summary response above and Technical Support

Document

. With respect to water reuse facilities, please see summary response s at
7.4 and 7.4.2 ; with regard to ditches

, flood control structures, and MS4s, also see the compendium on ditches ( topic 6) and the summary response at 7.4.4, respectively

.

Colorado Clean Water Coalition (Doc. #3533)

7.13 We appreciate the outline list of exclusions identified in the proposed rule such as artificial lakes, ponds created by excavating, water filled depressions created incidental to construction activity, and ditches; however, we are concerned with the inconsistency of language when referring to "All Tributaries" and "Nexus" as these examp les listed in t he proposal could clearly be considered tributary waters. Industry education is a very important aspect of successful regulation and such language not considered industry standard or scientific in nature will cause confusion regarding implem entation of the new regulation. (p. 2)

Agency Response: The agencies believe the final provides clarity on waters that are and are not jurisdictional but agree industry education is important.

Great Lakes Indian Fish and Wildlife Commission (Doc. #15454)

7.14 Staff also underst and that certain waters are not “waters of the US.” However, if some of these features are abandoned, they may over time acquire the characteristics of a water ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

32 the US. While clarity in regulation is desirable, it may be important to leave some

flexibili ty in the rule so that certain of these features could become a water of the US under appropriate circumstances. For example, rice paddies that have been long abandoned should be considered waters of the US if they meet the criteria identified in the propo sed rule. (p. 2)

Agency Response: See summary response above

.

League of California Cities (Doc. #16442.1)

7.15 Exemptions to the proposed rule are important . The proposed rule needs to provide greater understanding of what is and what is not a Water of the United States. Manmad e stormwater and flood control infrastructure such as ditches, drains, culverts, and green infrastructure should be clearly exempted from the proposed rule. (p. 1)

Agency Response: See summary response s above and at 7.4.4

.

Federal StormWater Association (Doc. #15161)

7.16 The proposed rule includes exemptions from the existing regulations and exemptions that are based on clarifications of the scope of federal jurisdiction in those prior rulemaking preambles. But these exemptions are related to different underlying rules and are not always directly applicable to the proposed rule, making those exemptions and how they apply to the proposed expanded jurisdiction equally confusing... (p. 5)

Agency Response: The example provided in the comment relates to ditches and the definition of “tributary

. ” That definition has been modified in the final rule; see

summary response above and Sections IV.F and IV.I of the preamble

.

Idaho Association of Commerce & Industry (Doc. #15461)

7.17 Notwithstanding the foregoing, any proposed rule must recognize that not all water bodies are subject to the jurisdiction of the CWA. In addition, any proposed rule should provide specific examples of water body features that are not within the scope of the CWA regulation. We acknowledge and appreciate the exempted waters in the propose d rule but they fall short of specifically exempting various waters that should not be jurisdictional waters. The limited exemptions provided in the proposed rule appear to be another effort to circumvent the current language of the law as well as the inte nt that has twice been upheld by the U.S. Supreme Court. (p. 3)

Agency Response: The agencies disagree, and believe the final rule, and exclusions contained within, provide a balance between protection and clarity that is reasonable with the statute’s goals and objectives. With regard to the Supreme Court decisions, see the Technical Support Document, section I

.

Association of Nebraska Ethanol Producers (Doc. #15512)

7.18 One of the more significant changes advanced by the proposed definition is the inclusion

of several listed e xemptions f or coverage under WOTUS at 40 CFR 230.3(t). While listing those waters not designated as WOTUS is a step in the right direction, the specific language of the current rulemaking proposal appears to suggest that only those waters covered by one or more of the listed exemptions are in fact exempt from coverage asClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

33 jurisdictional waters. Any w aters that do not meet one or more of the specific exemptions

listed could in fact become WOTUS under the USEPA proposed definition as written.

U SEPA guidance cl early indicates that the exemptions listed in Paragraph (t) are intended to be examples of the types of waters that are expected to be non

- jurisdictional. However, USEPA's proposed regulatory language f alls short of carrying those concepts clearly into

the rulemaking and could result in intermittent streams, run

- on from low

- lying agricultural areas, and water discharges from similar lands being reclassified as jurisdictional.

Assuming that the WOTUS rulemaking goes forward, we would recommend adding specifi c language in the rule that the exemption list in 40 CFR 230 .3(t) is intended t o represent examples of non

- jurisdictional waters, but does not in fact represent an all

inclusive list of exempt waters. In addition, the final rule co u ld be improved by adding a "catch

- all" category under Paragraph (t) that would otherwise exempt all waters not otherwise qualifying as WOTU S because they do not otherwise drain or connect to jurisdictional waters. These changes would help ensure that any rulemaking clearly implem ents the concepts USEPA says that it is trying to advance through the WOTUS rulemaking. (p. 2

- 3)

Agency Response: The agencies do not believe it is necessary to add a “catch

- all” exclusion for all waters not determined to be jurisdictional , and do not agree that it would p rovide clarity regarding the categories of waters that are covered. The final rule interprets the CWA to covers those waters that require protection in order to restore and maintain the chemical, physical, and biological integrity of traditional navigable waters, interstate waters, and the territorial seas. The final rule cl arifies categories of waters that are jurisdiction by rule, a limited subset of waters that may be jurisdictional based on a case

- specific analysis, and categories of waters not

consider ed “waters of the United States.” See summary response above. The agencies disagree that intermittent streams are currently not considered jurisdictional. See S ection IV.F of the preamble for a discussion of stream flow regime. The agencies are unclear what the commenter is referring to in the

statement “...run

- on from low

- lying agricultural areas, and water discharges from similar lands being reclas sified as jurisdictional.” See summary r esponse and list of

exclusions.

FMC Corporation (Doc. #15533)

7.19 Defini tion of Waters of the United States: We agree with the language in the proposed rule that excludes waste treatment systems and groundwater, including groundwater drained through subsurface drainage systems, However, we are concerned that EPA, through other language in the proposed rule would on a "case

- by

- case basis" determine whether a significant nexus exists and use this authority to circumvent these exemptions

, g roundwater protection systems and permitting rules already in place would be confounded by a ny attempt to add additional layers of permitting. We urge EPA to recognize that exiting waste treatment systems, and other ponds and water storage facilities are excluded from any implementation of a significant nexus test. (p. 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

34 Agency Response: The final rule clarifies that the exclusions listed are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)( 4 ) though (8).

Federal Water Quality Coalition (Doc. #15822.1)

7.20 The agencies have proposed to recodify exemptions from the current regulations and to codify additional exemptions drawn from language in the preambles of prior rulemakings. However, whether the exemptions were stated previously in rule language or preamble language, they are now exemptions from a new underlying rule that is vastly different from the current regulatory definitions of waters of the U.S. This fact has led to confusion regarding what waters are covered by the exemptions.

For example, the proposed exemptions drawn from prior rulemaking preambles describe

featu res that the prior definitions of waters of the U.S. did not reach, because the features did not qualify as jurisdictional water under the terms of the prior definitions. However, but for an exemption, the proposed rule would regulate most water features. Thus, the proposed exemptions likely will be interpreted narrowly and will apply only to the features described in each exemption. Further, no explanation for the exemptions is provided other than “longstanding practice” and the observation in the pluralit y opinion

in Rapanos that there were certain features that were not primarily the focus of the CWA (citing 547 U.S. at 734). 79 Fed. Reg. at 22218. Unfortunately, the explanations from the preambles of prior rules may no longer be relevant because the agen cies have changed the underlying definition of waters of the U.S. We agree that there are many waters that are not the primary focus of the CWA. The agencies should articulate a clear rationale for distinguishing between waters that are federally regulated and waters that are left to state jurisdiction and expand the exemptions based on that rationale. Their failure to do so has led to significant uncertainty. (p. 17

- 18)

Agency Response: The agencies have expanded and clarified the discussion of

features not considered to b e “waters of the United States” in the final rule. See the

summary response above and Section IV.I of the preamble.

7.21 Based on their understanding of connectivity, some members of the Panel who reviewed the proposed rule recommended against the exclusions fo r groundwater, ditches, rills, gullies, nonwetland swales, and artificial lakes and ponds. 1

Others Panel members observed that the agencies did not provide a rationale for the exclusions, creating confusion:

Panel members commented that the manner in which decisions would be made about excluding other manmade features was not clearly explained in the preamble of the proposed rule. Members noted, for example, that it was not clear whether the proposed rule would exclude: artificial lakes and ponds that have connections to downstream waters, underground stormwater drainage, natural versus artificial swales, roadside ditches, stormwater quality basins, bioswales, detention basins, industrial water processing and/or treatment facilities,

1 Rodewald Memorandum, at 6

- 8.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

35 desalination brine stora ge basins, cooling systems, oil and gas tank basins, fish farms, and rice paddies. 2 (p. 53)

Agency Response: See summary response above.

Water Advocacy Coalition (Doc. #17921.1)

7.22 The Proposed Exclusions from the Waters of the United States Definition Are Ambiguous and Whol ly Inadequate.

Although we support the agencies’ listing of types of waters that are categorically not jurisdictional and the clarification that these excluded waters cannot be recaptured if they satisfy the rule’s other provisions, the exclusions containe d in the proposed rule are unclear and wholly inadequate. We support the proposal to maintain the exclusions for waste treatment systems and prior converted croplands, but it is disappointing that the agencies have not taken this opportunity to provide som e much needed clarity on the applicability of those exclusions. Of the new exclusions, some are so narrow as to be nearly impossible to satisfy. Others are not defined or are unclear. Moreover, the exclusion of these waters rings somewhat hollow when the p reamble asserts that these excluded features can serve as links that can render connected features jurisdictional under the “adjacent waters” or “other waters” categories of the proposed “waters of the United States” definition. Notably, the suggestion tha t non

- jurisdictional waters can provide the nexus from a pollutant discharge to a jurisdictional water is directly opposed to Justice Kennedy’s Rapanos concurrence. There, he provided the admonition that a seasonal drainage is not transformed into a “water of the United States” merely because it provides an intermittent or ephemeral hydrologic connection to TNWs. See Rapanos , 547

U.S. at 778

- 79 (Kennedy, J., concurring). Practically speaking, these exclusions provide

little relief from the broad reach of th e proposed rule’s (a)(1) through (7) categories. (p. 70)

Agency Response: See summary response above and Technical Support

Document

.

7.23 The agencies must revisit these exclusions to provide clarification.

In sum, although we support the listing of certain waters that are categorically excluded from the “waters of the United States” definition, the agencies must revisit these exclusions and provide more clarity on their applicability and fewer qualifiers on their application. Waters and features that are categorically exclu ded from jurisdiction should not be used to establish jurisdiction over connected waters as “adjacent waters” or “other waters.” (p. 74)

Agency Response: See summary response above and Technical Support

Document

.

2 citeClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

36 FMC Corporation (Doc. #16505)

7.24 Definition of Waters of the Un ited States : We agree with the language in the proposed rule that excludes waste treatment systems and groundwater, including groundwater drained through subsurface drainage systems. However, we are concerned that EPA, through other language in the propose d rule would on a "case

- by

- case basis" determine whether a significant nexus exists and use this authority to circumvent these exemptions. Groundwater protection systems and permitting rules already in place would be confounded by any attempt to add additi onal layers of permitting. We urge EPA to recognize that exiting waste treatment systems, and other ponds and water storage facilities are excluded from any implementation of a significant nexus test. (p. 2)

Agency Response: The final rule clarifies that the exclusions lis ted are not “waters of the United States” even where they otherwise me et the terms of paragraphs (a)(4 ) though (8).

Kentucky Oil and Gas Association (Doc. #16527)

7.25 The breadth and lack of definition is further illustrated by the agencies belief that they

mu st explicitly exclude manmade features. The rule states, “Those waters and features that would not be ‘waters of the United States’ are: ... artificial reflecting pools or swimming pools ... small ornamental waters ....”(p. 22193) It should be clear and require no explanation that manmade features used for recreation or decoration are not under the jurisdiction of the federal government for Clean Water Act purposes. The necessity to include these exclusions points to the significant overreach and lack of clarity in the overall policy. (p. 3)

Agency Response: These additions are intended to codify longstanding agencies practices and provide clarity to the public. To that end, the agencies propose not simply that these features and waters are ‘‘generally’’ not ‘‘waters of the United States,’’ but that they are expressly not ‘‘waters of the United States’’ by rule.

Vulcan Materials Company (Doc. #16566)

7.26 The proposed rule’s inclusion of man

- altered, or man

- made water and ponds, impoundments, canals and ditches as tributaries is proble matical. This inclusion raises the potential for water management systems employed by facilities to be subject to full CWA jurisdiction. These engineered systems manage stormwater runoff, collect and treat water prior to discharge, and provide a means for water re

- use and recycling thereby minimizing the consumption of surface and groundwater resources. As previously stated, the management of stormwater and process water at aggregate mining operations is already subject to regulation under the NPDES program or federally authorized and equivalent state or local programs and additional regulation under the CWA is therefore

not necessary. (p. 2)

Agency Response: The definition of tributary has been modified in the final rule. With respect to the jurisdictional status of stormwa ter control features as “waters of the U.S., please see summary response at 7.4.4

. The rule does not impose any regulatory requirements

.

7.27 Recommendations Regarding Future ActionsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

37 In the event rulemaking proceeds, the proposed rule should be revised as follows to

address concerns and issues included in these comments:

c. The exemptions from CWA jurisdiction currently provided by the USEPA and USCOE under the CWA should be listed in the proposed rule, specifically the exemption for excavations and pits at aggregate mining operations, and the water treatment system exemption. The scope of these exemptions needs to be clearly stated and consistent with the historic use and application of the exemptions.

h. Remove the inclusion of impoundments, ponds, and di tches located in upland areas from consideration as jurisdictional.

i. ...water management systems associated with zero discharge facilities should be clearly exempted from jurisdictional status. (p. 3, 4 , 5 )

Agency Response: The agencies have expanded and clarified the features not

considered to be “waters of the United States” under the Clean Water Act. See

summary response above.

Irvine Ranch Water District (Doc. #14774)

7.28 For those categories of waters that would be absolutel y excluded as WOTUS, the draft rule states that these features may function as point sources under CWA Section 402. This statement should be removed. If Section 402 applies to any features, it should be defined in that code section. (p. 6)

Agency Response: The rule does no t affect the requirements of the Section 402 permit program. The statement reflects the agencies’ longstanding view that a

water feature may be a “point source” that discharges pollutants (whether dredged or fill material under Section 404 or others pollu tants under Section 402) and thus requires a CWA permit. The statement does not change how the Agencies have interpreted the CWA and was intended to describe how features are regulated

under the CWA . See Technical Support Document section I

.

Missouri So ybean Association (Doc. #14986)

7.29 General Concern #3

- The proposed does not provide farmers any clarity or certainty.

EPA has routinely claimed their primary goal with this rule is to bring clarity to the regulatory process and to reduce uncertainty on the farm. While this is a shared goal we support, this rule is far from hitting that mark. The proposed rule has delivered farmers far more questions than answers creating uncertainties and real

- world questions in farm fields whether literally millions of feat ures on farms are now under federal jurisdiction. In the rule, EPA has left many important terms undefined as well as used ambiguous and subjective terminology and phrases. In addition, the rule overreaches by narrowing the intent of the exemptions to the point that we are unsure how they would ever apply in a meaningful way, rendering them nearly useless in the real world. It is our position that the exemptions should apply broadly to agriculture, without exceptions or strings attached to them. (p. 5)

Agency Response: See summary response above.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

38 Utah Farm Bureau Federation (Doc. #16542.1)

7.30 For farmers and ranchers, uncertainty is increased through overly broad or nebulas terms in the propose d rule including:

 allowing for exempted features, such as groundwater, gullies, and r ills to serve as connections that can render a feature a jurisdictional “adjacent water” or “other water.” (p. 7)

Agency Response: See summary response above.

Florida Crystals Corporation (Doc. #16652)

7.31 The exclusions in the Proposed Rule will exclude few such waters in Flo rida from CWA jurisdiction. The exclusion for "[a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing," likely will apply only to the f ew lakes and ponds which

were does not excavated from wetlands (either pre

- CWA or pursuant to a CWA permit). As shown in Figure 1, vast areas change any of agricultural and urban land in South Florida are located on converted wetlands, which indicates that t his exception apparently will not apply. Even if it did apply in those areas, this exception will only exclude lakes and ponds which are used in four specific ways. Similarly, the exclusions for "[a]rtificia1reflecting pools or swimming pools crated by exc avating and/or diking dry land" and "[s]mall ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons," will not apply to ponds excavated from wetlands.

(p. 2, 6)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

39 Agency Response: In the final rule’s exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses , and the

list of uses is illustrative . S ee summary response above

.

Union Pacific Railroad Company (Doc. #15254)

7.32 The narrow exclusions un der the Proposed Rule are not likely to provide relief from

CWA the permitting requirements for ditch, culvert, bridge, causeway, and other rail infrastructure maintenance, alteration and construction activities, given the breadth of the definition of “per ennial flow,” the bed, bank and OHWM criteria, and the potential for adjacent waters, shallow subsurface groundwater migration and “other waters.” The availability of Nationwide Permits for certain maintenance activities under Section exemptions listed in 404 provides little relief since they do not cover all rail

- related operations and, where they do apply, coverage is strictly limited in acreage and linear

feet. 3 (p. 23) (f).

Agency Response: See summary response above

.

West Bay Sanitary District, Novato Sanitary District , West County Wastewater District, Union Sanitary District and West Valley Sanitation District, California (Doc. #16610)

7.33 The Rule Contains Arbitrarily Narrow Exclusions that should be More Comprehensive.

The most specific example of the proposed rule's arb itrarily narrow exclusions is for "small ornamental waters created by excavating and/or diking dry land." No explanation exists why this exclusion should be included for only "small" ornamental waters. Does this mean that all large ornamental waters are de facto WOTUS? What is the definition of small? Is there a certain dimension or gallon value to define what waters would be small? Without such definitions, the fountains outside the Bellagio Hotel in Las Vegas would be deemed to be WOTUS even though create d by excavating land in the middle of a desert.

The fact that these types of exclusions are necessary confirms the unreasonable overbreadth of the proposed WOTUS definition. If swimming pools need to be excluded from waters that might be deemed a federal w aterway, then the definition is far too expansive. (p. 9)

Agency Response: See summary response above

. These additions are intended to codify longstanding agencies practices and provide clarity to the public. To that end, the agencies propose not simply that these feature s and waters are ‘‘generally’’ not ‘‘waters of the United States,’’ but that they are expressly not ‘‘waters of the United States’’ by rule.

Western States Water Council (Doc. #9842)

7.34 WSWC Policy #369 sets forth the unanimous, consensus position of the wes tern states regarding federal efforts to clarify or redefine CWA jurisdiction. The WSWC urges EPA and the Corps to review this policy carefully and to incorporate its recommendations. Specifically, the WSWC urges EPA and the Corps to ensure that the rule:

3 See Nationwide Permits 3 and 14, 77 CFR at 10,269

- 10,273.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

40 ...E. Specifically excludes water and features generally considered to be outside the scope of CWA jurisdiction, including:

1. Groundwater;

2. Farm ponds, stock ponds, irrigation ditches, and the maintenance of drainage ditches, as currently excluded under the C WA's agricultural exemption;

3. Man

- made dugouts and ponds used for stockwatering or irrigation in upland areas that are not connected to surface waters;

4. Dip ponds that are excavated on a temporary, emergency basis to combat wildfires

and address dust abate ment; and

5. Prairie potholes and playa lakes. (p. 2)

Agency Response: See summary response above for points 1

– 4 ; also see summary response at 7.3.2, with regard to fire control ponds

. See Section IV.H of the preamble regarding coverage of prairie potholes and playa lakes ; also see

Sections II and IX of the Technical Support Document

.

Duke Energy (Doc. #13029)

7.35 One... concern relates to the proposed rule’s provisions that certain “excluded” water features, such as groundwater or erosional features (assuming these could be

disti nguished from tributaries), can still be used to establish a connection to another water feature for the purposes of determining adjacency. If these features are beyond the scope of the CWA, then it seems illogical that they be used to establish jurisdicti on. (p. 37)

Agency Response: See summary response above.

The Clean Energy Group Waters Initiative (Doc. #14616)

7.36 Clarification of Exemptions from WOTUS Provided by the Rule

We are also concerned that the regulatory text may cause some confusion as to whether

the intended exemptions from WOTUS are negated in the proposed definitions. The preamble states that “[w]aters and features that are determined to be excluded under section (b) of the proposed rule will not be jurisdictional under any of the categories in the proposed rule under section (a) ( 2 ) and thus there should be no recapture of any excluded waters or features as a result of the new defined terms. However, we recommend that EPA further clarify the nature of the exclusions relative to the proposed

definitions in the regulatory text for “adjacent,” “neighboring,” “riparian area,” “floodplain,” “tributary,” “wetlands,” and “significant nexus” in order to avoid confusion concerning WOTUS jurisdiction relative to the exempt waters and features. (p. 3)

Agency Response: See summary respons e above. The final rule clarifies that the exclusions listed are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)( 4 ) though (8).

Santa Clara Valley Water District (Doc. #14776)

7.37 The Definitions In Paragraph (c) Of The Proposed Rule Should Clarify That They Do Not Include Waters Excluded From The Proposed Rule By Paragraph (b)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

41 The definitions in paragraph (c) of the Proposed Rule are broad enough to include waters that would be excluded from the Proposed Rule by par agraph (b). For example, groundwater would be excluded by paragraph (b)(5)(vi), but waters with a "shallow subsurface hydrologic connection" to a water of the United States is included within the definition of a "neighboring" water by paragraph (c)(2). Yet some groundwater does have a shallow subsurface hydrologic connection to waters of the United States. While paragraph (b) would except certain waters from the definition of waters of the United States, "notwithstanding whether they meet the terms of parag raphs (a)(1) through (7)" (79 Fed. Reg. 22263), this point could stand to be clarified in paragraph (c).

Paragraph (c) should be amended as follows to add the underlined language: "(c)

Definitions. The following definitions apply, except that they do not a pply to waters that meet the terms of any of the subparagraphs of paragraph (b) of this section

- " (p. 8

- 9)

Agency Response: See summary response above. The final rule clarifies that the exclusions listed are not “waters of the United States” even where they otherwise

meet the terms of paragraphs (a)( 4 ) though (8). As explained in the final rule, the agencies have removed shallow subsurface connection from the definition of “neighboring.” See also the compendium on adjacency (topic 3).

Utility Water Act Group (Doc. #15016)

7.38 Before proceeding further, the Agencies must evaluate the potential impact of the Proposed Rule on industrial water features and ensure that all such features are clearly excluded from the definition of waters of the United States. (p. 20)

Agency Response: The agencies di sagree that all industrial water features should be excluded from jurisdiction. The agencies believe the exclusions contained in the final rule provide a balance between protection and clarity that is reasonable with the statute’s goals and objectives. See summary response above.

Colorado River Water Conservation District (Doc. #15070)

7.39 Strong, declarative statements and a list of exclusions, both those waters and wetlands that are currently excluded as well as new exclusions, if any, under the proposed rule

, would help stem some of concern about the arguable expansion of federal jurisdiction. (p. 3)

Agency Response: See summary response above

. The agencies agree l isting

features not considered “waters of the United States” will increase clarity regarding the scope of jurisdi ction.

Michigan Manufacturers Association (Doc. #15170)

7.40 ...uncertainty is created by:

 allowing for exempted features, such as groundwater, gullies, and rills to serve as connections that can render a feature a jurisdictional “adjacent water” or “other

water. ” (p. 3)

Agency Response: See summary response above

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

42 Tri

- State Generation and Transmission Association, Inc. (Doc. #16392)

7.41 Tri

- State strongly supports the provisions in the proposed rule that identify categories of waters that are per se excluded from the definition of WO TUS and the "no recapture" clause in the regulatory text that makes it clear that an exclusion controls even if the waters might otherwise meet the rule's definition of WOTUS. 4 Tri

- State also strongly supports the Agencies' exclusion of groundwater from CW A jurisdiction. As noted below, however, Tri

- State urges the Agencies to revise certain proposed exclusions to

ensure that on

- site water management features at power generation facilities, transmission facilities, mines, and agricultural sites that are cur rently non

- jurisdictional remain excluded from the definition of "waters of the United States." As currently drafted, the exclusions are not sufficiently clear to effectuate that result. (p. 6)

Agency Response: See summary response above

.

National Wildlife Federation (Doc. #15020)

7.42 In addition, we support the overall decision to include a new section (b) excluding specific waters from the definition of “waters of the United States.” Importantly, we do have concerns with the breadth and vagueness of both the waste treatment s ystem exclusion and the prior converted cropland exclusion. Both of these exclusions have created significant loopholes leading to inconsistencies in application and the destruction of ecologically important water bodies. However, it is our view that revis ions to these two existing exclusions warrant special attention is separate rulemakings. (p. 24)

Agency Response: See summary response at 7.2 regarding prior converted cropland and summary response at 7.1 regarding the waste treatment system

exclusion.

Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network (Doc. #15233)

7.43 Unfortunately, while the draft rule recognizes this fundamental principle it fails to fully stand on science and instead attempts “to draw lines” and conclude categorically “that certain waters and features are not subject to the jurisdiction of the Clean Water Act,” 79 Fed. Reg. 22218. In these instances, the draft rule departs from the Act’s clear mandate “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. 1251(a). As the Supreme Court has recognize d, protection of aquatic ecosystems requires “broad federal authority to control pollution, for ‘[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the

source’.” United States v. Riverside Bayview Homes , 47 4 U.S. 121, 133 (1985) (citing to S. Rep. No. 92

- 414, p. 77 (1972), U.S. Code Cong. & Admin. News 1972, pp. 3668, 3742).

Accordingly, and for reasons that we further delineate below, it is essential that you revise your rule so as not to foreclose CWA juri sdiction with respect to entire categories of water bodies to which the unpermitted discharge of pollutants may, either alone or in

4 79 Federal Register (FR) 22263 and 22217

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

43 combination with other water bodies in the region, “significantly affect the chemical, physical and biological integrity of other covered waters. . . .” Rapanos , 126 S. Ct. at 2248 (Kennedy concurrence).

We believe this central recommendation is fully in accord with advice that you have already received from EPA’s Science Advisory Board (hereinafter, “SAB”). See Rodewald, Comm ents to the chartered SAB on the Adequacy of the Scientific and Technical Basis of the Proposed Rule Titled “Definition of ‘Waters of the United States’ Under the Clean Water Act (September 2, 2014) (hereinafter, SAB Sept. 2) and David Allen et al., Scienc e Advisory Board (SAB) Consideration of the Adequacy of the Scientific and Technical Basis of the EPA’s proposed rule titled Definition of Waters of the United States Under the Clean Water Act (Draft of September 17, 2014) (hereinafter, SAB Sept. 17).

The science is consistent with the Clean Water Act’s overall intent. It was the intent of Congress to give the Act’s jurisdictional scope “the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.” S. Conf. Rep. No. 92

- 1236, p.144 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3776, 3822, 118 Cong. Rec. 33756

- 33757 (1972) (statement of Rep. Dingell); see also Oklahoma ex rel. Phillips v. Guy F. Atkinson Co. , 313 U.S. 508,

525

- 526 (1941) (construing the Flood Control Act of 1938; flood control is now covered in 33 U.S.C. § 1252(a)). (p. 1

- 2)

Agency Response: See summary response above and the Technical Support

Document Section II with regard to the significant nexus analysis.

Pacific Le gal Foundation (Doc. #14081)

7.44 Aside from this improbable ditch exclusion, the rule proposes excluding certain artificially irrigated uplands, ponds, pools and ornamental waters so long as they were excavated or diked on dry land. Id . This is hardly a conces sion because it implies that virtually all other waters are covered by the Act.

... the proposed rule would exclude “water

- filled depressions created incidental to construction activity” and “groundwater, including groundwater drained through

subsurface drain age systems” and “gullies and rills and non

- wetland swales.” Id . But here again, the message is mixed, even schizophrenic, because the Corps and EPA would regulate “adjacent waters” with “shallow subsurface connections” to other covered

waters. See 79 Fed. Reg. 22207. So, is groundwater covered or not?

Strangely, the Corps and EPA could not bring themselves to expressly exclude “puddles” claiming the term is too ambiguous. But that didn’t stop the agencies from relying on even more ambiguous terms such as “ adjacent,” “wetland,” “riparian,” “floodplain,” “significant nexus,” “neighboring,” “perennial,” “ephemeral,” “impoundment,” “non

wetland swale,” “high water mark,” etc. The exclusions are, therefore, too narrow or too uncertain to provide any meaningful l imitation on federal authority.

It is also difficult for the public to rely on these exclusions given the agencies’ hostility towards the other exemptions under the Act. For example, the Corps and EPA have routinely limited the section 4(f) farm exemption to those ordinary farming practices employed on a particular farm rather than those farming practices common to theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

44 industry, as a plain reading of the Act requires. And, the agencies have attempted to limit the “prior converted cropland” exemption (which covers approximately 53 million acres) 5
through “internal policy changes,” like the so

- called Stockton Rules, that the courts have

invalidated. See New Hope Power Company v. Corps of Engineers , 746 F. Supp. 2d. 1272 (SD Florida, 2010) (Holding change in p olicy constituted new legislative and substantive rules but are improper because they were not subject to notice and comment). Limiting exemptions and exclusions is standard practice for these agencies, making the exclusions contained in the proposed rule of little value. (p. 14

- 15)

Agency Response: See summary response above.

Trout Unlimited (Doc. #18015)

7.45 TU supports language in the proposal to clarify what waters are NOT covered. The proposal also seeks to clarify what waters are not jurisdictional. The proposed rule and preamble reiterates all existing exemptions from Clean Water Act jurisdiction, including many farming, ranching, \ and forestry activities. These exemptions include activities associated with irrigation and drainage ditches, as well as sediment basins on

c onstruction sites. Moreover, for the first time, the proposed rule codifies specific exempt waters, including many upland drainage ditches, artificial lakes and stock watering ponds, and water filled areas created by construction activity. As highlighted a bove, TU works with farmers, ranchers, and other landowners across the nation to protect and restore trout and salmon habitat. We have a keen interest in ensuring that the proposal works well for landowners on the ground. (p. 3)

Agency Response: See summary response above. The agencies have further

clarified the exclusions in the final rule.

Earthjustice (Doc. # 14564 )

7.46 EARTHJUSTICE OBJECTS TO EPA’S PROPOSAL TO CATEGORICALLY

EXCLUDE CERTAIN WATERS FROM THE PROTECTIONS OF THE CLEAN

WATER ACT.

Earthjustice objects to EPA’s proposal to exclude whole categories of water from receiving Clean Water Act protections. Such a result is not dictated by Supreme Court case law nor the language of the Clean Water Act. While some members of the Supreme Court expressed c oncern over ensuring that certain waters, specifically wetlands, had a connection to waters of the U.S., at no time has the Court addressed wholesale exclusion of certain types of waters. While EPA may desire to categorically exclude some waters

for the sa ke of convenience, such a result is not driven by case law. Because it is also contrary to the intent and purpose of the Clean Water Act, categorically excluding certain types of waters on the basis of administrative convenience would fail both tests under Chevron: it would violate clearly expressed congressional intent under Step One, and it is an unreasonable and impermissible interpretation of the Act under Step Two. Moreover,

5 U.S. Department of Agriculture, Natural Resources Conservation Service, RCA Issue Brief #8, “Wetlands Programs and Partnerships” (Jan. 1996).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

45 such an exclusion would not constitute reasoned decision making supported by t he record. (p. 10

- 11)

Agency Response: See summary response above and the Technical Support

Document Section I regarding the legal basis for the rule.

7.47 Earthjustice supports a broad, science

- based definition of the waters of the U.S. and urges

EPA to heed the advice and com ments of the SAB to strengthen the rule to ensure full protection of the nation’s waters. Further, Earthjustice requests that the EPA revise the rule to remove most of the categorical exclusions, most especially the exclusion of groundwater, from the defin ition of waters of the U.S., preserving the ability to more fully protect our nation’s waters, again consistent with the advice and counsel of the SAB. (p. 17)

Agency Response: See summary response above.

Nebraska Wildlife Federation (Doc. #15034)

7.48 We recognize that the pro posed rule would preserve longstanding Clean Water Act exemptions for farmers and foresters that encourage wise stewardship of land and water resources. It would also, for the first time, explicitly exclude many upland water features important for farming and forestry, such as

 upland drainage ditches with no more than ephemeral water flows;

 artificially irrigated areas that would revert to upland should irrigation cease;

 artificial lakes or ponds used for purposes such as stock watering;

 artificial ornamental waters created for primarily aesthetic reasons; and

 water

- filled depressions created as a result of construction activity

We support these existing and new exemptions, and believe they should make the rules very workable for most farmers and ran chers. (p. 2

- 3)

Agency Response: See summary response

. The agencies have further clarified the

exclusions in the final rule.

Neuse Riverkeeper Foundation (Doc. #15095)

7.49 ...we are greatly concerned by, among other things,...the additional of new categorical

exclusions for water s that have been covered historically a nd can have a significant impact on downstream water quality.

The EPA should ensure that the new rule:

NOT INCLUDE A CATEGORICAL EXCLUSION FOR GROUNDWATER AND WASTE TREAMENT SYSTEMS. Categorical exclusion of groundwat er will lead to regulatory confusion and is not supported by sound science as described by numerous members of the SAB. Further, EPA lacks the authority to exempt waste treatment system impoundments that are otherwise waters of the U.S. from coverage under the CWA and EPA is doing so in violation of the Administrative Procedures Act. (p. 2, 3)

Agency Response: See summary response above

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

46 Texas Agricultural Land Trust (Doc. #15188.2)

7.50 ... Farm ponds should not be jurisdictional. Dry washes, dry streambeds, and ephemeral

streams should not be jurisdictional. Such far

- reaching jurisdiction over features far from navigable waters and carrying only minor volumes of flow was not what Congress intended and goes far beyond even the broadest interpretation of recent Supreme Court

decisi ons. ( Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs

, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006). (p. 1)

Agency Response: See summary response above . Also see the Technical Support

Document Section s I.C and VII with rega rd to the Supreme Court decisions and rationale for asserting jurisdiction over tributaries.

Hackensack Riverkeeper, Hudson Riverkeeper, Milwaukee Riverkeeper, NY/NJ Baykeeper and Raritan Riverkeeper (Doc. #15360)

7.51 Subsection (2) Must be Rewritten to Ensure Jurisdictional Waters are Not Needlessly

Excluded

We recognize that there are parts of the United States that are not and should not be definitional Waters of the United States. No one believes that swimming pools or public

fountains are Waters of the Uni ted States

- though they may be point sources under certain circumstances. We therefore support the some of the exclusions under subsection (2), but we are concerned that, as written, as written, other exclusions may remove jurisdiction from waters that sh ould clearly be deemed jurisdictional.

First, the Agencies should strike " notwithstanding whether they meet the terms" of the definition of included Waters of the United States at §401.11(2) and replace it with "unless they meet the terms" of the definitio n of included Waters of the United States. If a groundwater feature, wastewater pool or impoundment, or ditch meets the definition of a Water of the United States [as defined, Waters (i) to (vii)], it should be covered by the

Clean Water Act as a Water of the United States... (p. 14

- 15)

Agency Response: See summary response above

Louisiana Environmental Action Network (Doc. #15377)

7.52 However, Proposed Rule may not categorically exclude waters when those waters may have a significant nexus. Given Congress’ broad intent, the Agen cies have no authority to narrow the application of Clean Water Act. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc

. , 467 U.S. 837, 842

- 43 (1984) (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”). Accordingly, the Agencies must revise several changes in the Proposed Rule that may have an unsupportable narrowing effect on the scope of the Act’s jurisdiction. For exampl es, the Proposed Rule:

 categorically removes from jurisdiction certain ditches and other waters that the Clean Water Act now expressly includes as “waters of the United States” when there is a significant nexus

– a connection the Proposed Rule recognizes m ay be present for such waters. See infra § (3).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

47  precludes any opportunity to recapture waters that are or become excluded from the definition of “waters of the United States,” regardless of whether qualification in the exclude category is temporary. See in fra § (4).

 categorically removes “groundwater, including groundwater drained through subsurface drainage systems” from Clean Water Act jurisdiction

– a preclusion not included in current law and contrary to evidence of a significant nexus cited in the Prop osed Rule. See, e.g. , 79 Fed. Reg. at 22196

- 97 (summary of significant nexus conclusions); id . at 22209 ("While they may provide the connection establishing jurisdiction, these shallow subsurface flows are not “waters of the United States.”); id . at 22224 ("The ability of streams to keep flowing even during dry periods typically depends on the delayed (lagged) release of local groundwater, also referred to as shallow groundwater . . . .").

 fails to reinstate, or even address, suspended language clarifying t he narrow application of the waste treatment system exemption. See infra § (2). (p. 2

- 3)

Agency Response: See summary response above and the Technical Support

Document Section II with regard to significant nexus analysis.

7.53 The Proposed Rule Must Provide an Opportunity for Waters Excluded from the

Definition of “water of the United States” to Become or Revert to “waters of the

United States.”

The Proposed Rule’s absolute no re

- capture of excluded waters is unsupported by science, contrary to the purpose and intent of the Cle an Water Act, and outside the Agencies’ authority. Although the Agencies state “there is no recapture provision for these excluded waters in the proposal," they fail to support the permanency of these

exclusions with science. See 79 Fed. Reg. at 22189. Whi le the Agencies state that the exclusions are for "certain waters and features over which the agencies have as a policy matter generally not asserted CWA jurisdiction," they do not provide factual support that these are "longstanding practices." Id . Moreov er, the statement that jurisdiction is "generally not asserted" does not support a categorical exclusion with "no recapture provision." On the contrary, because the term "generally" indicates exceptions to the policy, the Agencies' position can only suppor t, at most, categorical exclusions when there is a recapture provision.

Moreover, changing landscapes and the law support providing for recapture of waters into the Act's jurisdiction in the final rule. For example, the Proposed Rule states "Absolutely no .uplands located in 'riparian areas' and 'flood plains' can ever be 'waters of the United States' subject to jurisdiction of the CWA." 79 Fed. Reg. at 22207. But such uplands may erode naturally and become wetlands that would otherwise be jurisdictional

we tlands. In another example, the current exception to the limited scope of the wastewater treatment systems exclusion, see supra § (2), is only supportable (if at all) based on its temporary nature. See Ohio Valley Envtl. Coalition v. Aracoma Coal Co.

, 556 F.3d 177,215 (4th Cir. 2009) (noting the waste water treatment system exclusion may apply to natural streams when the Corps "exercises its § 404 authority. .. [and] allowed

the temporary removal of these waters from the definition of 'waters of the United States' . . .") (emphasis added).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

48 In short, while LEAN appreciates the Agencies' effort towards simplicity, the Proposed Rule's failure to include a recapture provision for waters excluded from the definition of

"waters of the United States" under subsecti on (b) is arbitrary and capricious, without support of evidence, an abuse of discretion, contrary to the purpose and broad jurisdictional intent of the Clean Water Act, and outside the Agencies' authority. (p. 6)

Agency Response: See summary response above.

Delaware Riverk eeper Network (Doc. #15383)

7.54 While we generally support EPA’s attempt to clarify which waters are subject to jurisdiction under the CWA, science does not support some of the listed exclusions and the exclusion of some water bodies because they do not fall u nder the proposed definitions. (p. 2)

Agency Response: See summary response above.

7.55 Comment 8: Exclusions: Section 328.3(b)

The exclusions listed in the proposed rule have weak scientific justification and reflect profit

- driven stakeholder concerns that have little or no re lationship to protecting water quality. The following exclusions should not be included in the finalized rule since all of these will promote pollution of the hydrologic cycle and thus the science

- based waters of the United States. (p. 4)

Agency Response: See summary respo nse above.

7.56 ...when determining whether water bodies should be excluded from the definition of Waters of the United States, the Agencies should bear in mind the Clean Water Act’s goals of restoring and maintaining the chemical, physical, and biological integr ity of the Nation’s waters. When considering these goals the Agencies will see that the proposed rule in its current format is inadequate for restoring and maintaining the integrity of our Nation’s waters. (p. 5)

Agency Response: See summary response above.

Wisconsin Wetla nds Association (Doc. #15629)

7.57 The science does not support excluding groups of “other waters” or subcategories thereof

. Any decisions related to the categorical exclusion of other waters must withstand the

same level of scientific review as waters considered for categorical inclusion. This means that the effects on downstream waters must be thoroughly investigated based on the potential for hydrologic exchange, and on the consideration of downstream effects related to isolation (i.e., reducing the e rosive force of floods). Evidence weighed must be based on direct or applied peer reviewed science.

Given that scientific understanding of watershed dynamics is continually evolving, we oppose categorically excluding other waters under this rule unless the re is definitive science to support it. (p. 5)

Agency Response: See summary response above.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

49 AES

- US Services (Doc. #3242)

7.58 Please clarify if the following are excluded from the definition of “waters of the US” based on the proposed rule if located in 1.) floodplain/riparian area, or 2.) non

floodplain/riparian area, and/or 3.) contiguous/adjacent to jurisdictional waters and/or defined as a tributary:

Puddles; Wastewater treatment system seeps; Surface Impoundments seeps; Stormwater retention ponds; Stormwater detention ponds used for settling/treatment; General facility Stormwater conveyance systems such as ditches, swales that are not jurisdictional wetlands; Ditches transferring wastewater between treatment systems; Discharge canals that receive water from a tributary; Pipe trenching (trenches located underneath; Sheet flow; Secondary containment devices such as above

- ground tank containment

structures; Cooling tower basins;

Non

- wetland strip pits; Roadside ditches which do not meet proposed exemptions;

Ponds which serve as part of facility’s wastewater treatment system; Temporary Stormwater construction ponds; Pond rills, gullies, non

- wetland swales; Trenches associated with wastewater treatment systems; and Standing water in industrial activity areas such as coal piles. (p. 1)

Agency Response: See summary response above and Section IV.I of the preamble

. The final rule and preamble also discuss several changes the agencies made to “adjacency.” See also compendium on adjacent waters (topic 3).

The Property Which Water Occupies (Doc. #8610)

7.59 T he Exemptions Prove the Rules are in Excess of Authority

The overreach of such broadly purported jurisdiction becomes evident in the extensive list of ‘exceptions’ to these proposed Rules. The need to list mud puddles or basic farming practices as exceptio ns to the Rules, indicate the Rules themselves exceed the scope of statutory authority

- the stated purpose of the CWA was never agricultural and drainage oversight. The interpretation of such broad authority beyond navigable waters expands the domain of Fe deral Agencies and therefore is a clear abuse of agency

discretion. 6

6 Decker v. Northwestern Defense Ctr . 133 S. Ct. 1326, 1341 (2013) ( “ther e is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers

— that the power to write a law and the power to interpret it cannot rest in the same hands.”)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

50 Exemptions for particular land

- use activities, which would otherwise invoke CWA jurisdiction would be illegal if such exemptions were short of statutory obligations. (i.e. potentially pos e any threat to navigable waters). The EPA cannot propose Rules which exempt potential violations of the CWA, else they fall short of their statutory obligation.

Therefore the land

- use exemptions

- defined by the Rules

- would only be legal if the jurisdicti onal scope defined by these same Rules was in excess of statutory authority as delegated by Congress. Federal Agencies are not given discretion to exempt activities that would otherwise result in a Clean Waters Act violation as outlined by Congress. 7

These arbitrary exemptions for ‘favored’ activities could as easily be revoked by the agency, or through a judicial challenge. The exemptions appear to be added to quell objections to the expansive jurisdiction claimed under the Rules...

...The proposed Rules fail to recognize that CWA jurisdiction over private land is limited to the protection of the water quality for downstream public waters. Federal agencies do not have the authority to exempt activities which would otherwise fall under their statutory obligation to enforce the CWA. Such Rules ignores congressional intent in violation of law. 5 USC 706. The extensive list of exemptions to the Rules simply highlight an error in the Rules interpretation of CWA jurisdiction beyond navigable

waters. Jurisdiction under the Clean Waters Act must be based on threats to the quality of public waters and not the existence of water molecules. The Act is not a land zoning instrument to be arbitrarily invoked under the auspice of protecting water. (p. 11, 12)

Agency Response: See summary respon se above

. The addition al exclu s ions are intended to codify longstanding agencies practices and provide clarity to the public. To that end, the agencies propose not simply that these features and waters are ‘‘generally’’ not ‘‘waters of the United States,’’ but that they are expressly not ‘‘waters of the United States’’ by rule.

7.60

... actions which threaten water quality, rather then exemptions to the Rules, should be listed by the Rules in order to prevent the Rules from being in excess of authority and not

be s hort of any statutory obligations. Maintaining a catch

- all phrase in the Rules like: “the EPA maintains the discretionary authority to invoke the CWA when actions on private property present a real and significant threat to the na vigable waters.” Will allo w for the protection of clean water whenever necessary and evidence is provided. Where jurisdiction of the CWA ends is not a choice between drinking Clean Water, or green glowing citizens as portrayed by misguided advocates for this expansion of the CWA.

B ecause jurisdiction beyond navigable waters can only pertain to water quality, the scope of CWA jurisdiction can only be invoked when a tangible threat to water q uality exists.

Jurisdiction can not be invoked simply because rain which falls onto private lan d must then drain based on the laws of gravity. (p. 16

- 17)

Agency Response: See summary response above and section I of the Technical Support Document

.

7 Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

51 7.1. W ASTE T REATMENT S YSTEM (WTSE)

Summary Respons e

This response addresses comments regarding the waste treatment system exclusion, regardless of where such comments appear in the Response to Comments document.

Summary of Comments and Response

The Agencies’ Clean Water Rule makes no changes to the waste treatment system exclusion. The definition of “waters of the United States” has excluded waste treatment systems since 1979, and only ministerial changes are made in the proposed and final rules; it remain s substantively and operationally unchanged. While the Agencies received over 200 comments on the waste treatment system exclusion, the comments are beyond the scope of the rulemaking . In some instances, the agencies have provided information that maybe useful to a commenter, but this

does not alter the scope of the rulemaking . In addition, some issues that commenters raised are

related to other exclusions identified under paragraph (b) , and commenters should see those essays and responses for more detail

.

The existing waste treatment system exclusion m oves to paragraph (b)(1) of the final rule with no substantive changes. The existing waste treatment system exclusion reads, “Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act (other than cooling pon ds as defined in 40 C.F.R. 423.11(m) which also meet the criteria of this definition) are not waters of the United States.” The Agencies made a ministerial change to delete the parenthetical cross

- reference to 40 C.F.R. 423.11(m), an EPA regulation that no longer

exists. Because the agencies are not addressing the substance of the exclusion, the agencies do not make conforming changes to ensure that each of the existing definitions of the “waters of the United States” for the various CWA programs have the exact same language with respect to the waste treatment system exclusion, with the exception of deleting the cross

- reference

.

In the proposed rule, the waste treatment system exclusion read, “Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Act are not waters of the United States.” Many commenters expressed concern about whether the agencies’ insertion of a comma after the word “lagoons” in the course of making ministerial changes unintentionally narr owed the exclusion such that all excluded waste treatment systems must be designed to meet the requirements of the Clean Water Act. The agencies have deleted this comma in response to comments. Continuing current practice, any waste treatment system would need to comply with the Clean Water Act by obtaining a section 404 permit if constructed in waters of the United States, and a section 402 permit for discharges from the waste treatment system into waters of the United States.

The agencies received comme nts on whether certain stormwater conveyances could be excluded from the definition of waters of the United States because they are waste treatment systems. For clarity, the agencies have added an exclusion for certain stormwater control features in paragr aph (b)(6) of the final rule. See response sections on stormwater for further clarification.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

52 Many comments offered suggestions on the kinds of structures and processes that should be

considered excluded from definition of waters of the United States as wa ste treatment systems, and asked the agencies to clarify the jurisdictional status of features that are no longer functioning as waste treatment systems. Some commenters expressed concern that the waste treatment system exclusion should not exist as a tool to take waters out of CWA jurisdiction, and that waters of the United States should not be used for waste treatment. Conversely, some commenters stated that providing the exclusion is providing a way to discharge mine tailings and

other wastes into waters of the United States without a permit, and that the agencies should revise the waste treatment system exclusion and the definitions of “fill material” and “discharge of fill material.” Because the agencies are not making any substantive changes to the was te treatment system and these comments are outside the scope of the proposed rule, the final rule does not reflect changes made in public comments. Comments on the definitions of “fill material” and “discharge of fill material” are also outside the scope o f the proposed rule and the final rule does not reflect any changes made in response to these comments.

Specific Comments

Quapaw Tribe of Oklahoma (the O

- Gah

- Pah) (Doc. #7980)

7.61 4. Excluded Waste Treatment Facilities. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act, are not Waters of the U.S. Language in the 2012 Nationwide Permits clarifies that stormwater management facilities that are determined to be waste treatment systems under current regulations are not Waters of the U.S. The proposed rule does not significantly change the language regarding the excluded waste treatment facilities. Additional clarification is required to identify types of facilities that qualify for this exclus ion. Any facility designed and operated to treat stormwater runoff to meet the requirements of the Clean Water Act should be included in this exclusion. (p. 3)

Agency Response: See summary response s at 7.1 and 7.4.4

.

Navajo Nation Environmental Protection Agency (Doc. #10 117)

7.62 The Navajo Nation EPA Water Quality Program generally agrees with the proposal to retain the existing regulatory exclusions and longstanding permitting exemptions. However, we are concerned that by codifying the exemption for waste treatment systems, the rule may inadvertently be excluding from the definition of "waters of the United States" impoundments of headwater streams used for draining runoff from surface coal mining. The rule should clarify that these sediment pond impoundments are not

consider ed "waste treatment systems" that are excluded from the definition. (p. 2)

Agency Response: See summary response a t 7.1 . The agencies are not changing current practice related to implementation of the waste treatment system exclusion. Under current practice and under the p roposed rule, where appropriate permits are received, such impoundments may be considered excluded as waste treatment
systems.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

53 Texas Department of Transportation (Doc. #12757)

7.63 We are concerned that if a "natural feature that is constructed to receive and t reat

stormwater run

- off is itself treated as a jurisdictional water, State DOTs (and other public agencies) would be in the paradoxical position of needing to obtain Section 404 permits to discharge stormwater into facilities constructed to satisfy stormwa ter permit requirements under Section 402 of the Clean Water Act."

Recommendation: We recommend that the final rule "should clarify the circumstances under which the exclusion for waste treatment systems, including treatment ponds or lagoons applies to storm water treatment systems constructed as part of transportation facilities." We would also request that if a ditch is regulated as a water of the U.S., it should not also be regulated as a point source discharge under Section 402 of the CWA. (p. 4)

Agency Response: T he agencies have clarified the circumstances under which a stormwater conveyance feature would be non

- jurisdictional. See summary

response s at 7.1 and 7.4.4.

Earthworks et al. (Doc. #15173)

7.64 While we appreciate that if finalized in its current form, this new policy will restore protections to most streams, regardless of size or frequency of flow, and to all wetlands inside of floodplains. But, some waters will still be at risk because of two loopholes in the Clean Water Act that allow mining waste to be dumped directly into streams, rivers and lakes. We respectfully ask that you expand this rule to close the “fill” loophole to clarify that mining waste cannot be used to fill in waters of the United States, and the “waste treatment system” loophole that simply a llows mining companies to rename water a “waste treatment system” to escape Clean Water Act regulations. The drafters of the Clean Water Act intended for all waters to be protected, even those impacted by mining operations. (p. 2 )

Agency Response: See summary response at 7 .1. Comments on the definition of “fill material” are outside the scope of the proposed and final rule.

California State Water Resources Control Board (Doc. #15213)

7.65 The following specific comments are provided by the California State Water Resources

Contr ol Board and the nine California regional water quality control boards (collectively, the "Water Boards ") staff regarding the proposed "Definition of 'Waters of the United States' Under the Clean Water Act" (Proposed Rule) for 40 CFR 230.3. Specific

recom mended changes to the proposed regulations are shown in strikeout / underline format. Additional comments are presente d as endnotes [footnotes here].

(1) Waste treatment systems, including treatment ponds , or lagoons, and storm

water detention basins

, 8 designed and used 9 to meet the requirements of the Clean

Water Act and not constructed in a waters of the United States

. 10 (p. 5)

8 Stormwater detention basins and other const ructed water

- dependent stormwater treatment systems should also qualify for this exclusion.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

54 Agency Response: T he agencies have clarified the circumstances under which a stormwater conveyance feature would be non

- jurisdictional. See sum mary

response s at 7.1 and 7.4.4.

National Tribal Water Council (Doc. # 18922)

7.66 On May 19, 1980, the Environmental Protection Agency (EPA) revised its regulations defining waters of the United States, providing an exclusion for “waste treatment systems” as f

ollows:

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the

United States . This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United

States.

According to EPA, the inte nt of the final sentence of the exclusion was to “ensure that dischargers did not escape treatment requirements by impounding waters of the United States and claiming the impoundment was a “waste treatment system”, or by discharging

wastes into wetlands. T his clarification of the waste treatment system (WTS) exclusion was later suspended by EPA without public notice or comment. 45 Fed. Reg. 48620 (July 21, 1980). The Corps adopted the WTS exclusion without the explicit manmade waters

limitation in 1986. 33 C.F.R.§ 328.3(a)(8).

When legally challenged in the late 1980’s by the West Virginia coal mining industry, EPA maintained that “under current EPA regulations, discharges into these instream impoundments continue to be discharges into waters of the U.S., a nd, therefore, NPDES permit limitations must be met prior to treatment in the impoundment, rather than after. EPA then proposed an “alternative approach” in which the Corps would review impoundments of waters pursuant to section 404, and EPA would revise i ts regulations so that “where such a review has been conducted and section 404 criteria have been met, a 402 permit will only be required for discharges from the instream impoundment, not into

it.

In 1992, EPA adopted this alternative approach, specifical ly for the AJ and Kensington gold mines in Alaska which had proposed impounding wetlands and streams behind earthen dams for purposes of tailings disposal. EPA and the Corps agreed that as long as the Corps approved the construction of the tailings impound ment under section 404, the waters within the impoundment would no longer be considered waters of the United States, and tailings discharges would not require either a section 402 or 404 permit. EPA

9 If a waste treatment system is abandoned or otherwise ceases to serve the treatment function it was designed for, it should not continue to qualify for the exclu sion.

10 Generally, waste treatment systems that are constructed within a water of the United States should not qualify for this exclusion. There may be some existing waste treatment systems that were constructed within a water of the United States that the Agenci es affirmatively determined ceased to be a water of the United States; those

determinations should remain in effect.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

55 and the Corps subsequently relied on a similar rationale to authorize tailings disposal for the Fort Knox open pit gold mine near Fairbanks, other Alaska hard rock mines, and ferrous mines in Minnesota’s Mesabi Iron Range.

Regarding the second ‘loophole’, under the Clean Water Act, a person who discharges

“fill material” into waters of the U.S. must obtain a section 404 permit from the Corps. Anyone who wants to discharge other pollutants must obtain a section 402 permit from the EPA or a state that has been delegated authority to issue such permits. In 1982, EP A adopted a zero discharge standard under section 402 for new copper and gold mines using

froth

- flotation, cyanidation, and similar processes. EPA found that mines operating in the early 1980s were already achieving zero discharge and that it was therefore practicable for new mines to operate without discharging untreated waste into natural waters.

Prior to 2002, EPA and the Corps had different definitions for this type of pollutant. The Corps, defined fill as “any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a water body. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under section 402 of the Clean Water Act. Under this definition, tailings and other mining wastes were not fill material because they were not used for the primary purpose of replacing an aquatic area with dry land. Pollutants discharged into waters primarily as a form of waste disposal were explicitly regulated under the more rigorous section 402 program. All this changed in 2002 when EPA and the Corps adopted identical definitions of fill material to include discharges that have the effect of either replacing any portion of a water body wit h dry land or changing the bottom elevation of any portion of a water. The regulatory examples included overburden from mining.

The new fill definition was the subject of a U.S. Supreme Court decision finding that EPA and the Corps had acted lawfully in au thorizing the Kensington mine in southeast Alaska to use Lower Slate Lake as a tailings reservoir in which it could discharge slurry and other wastes. Relying upon the 2002 regulation redefining fill material, the agencies concluded that these discharges s hould be treated as fill under section 404, rather than waste under section 402, because they would change the bottom elevation of Lower Slate Lake. The decision means that as long as the current definition of fill material is in effect,

mine wastes discha rged into waters of the U.S. are regulated under section 404 where permits are approved more than 99% of the time instead of under section 402 with its strict pollution standards.

Hardrock mining would be a far less destructive industry if section 402’s d ischarge limitations were strictly applied. Mines produce huge quantities of chemically

- treated wastes, and the cheapest places to store these wastes are valleys and other low

- lying areas near the mine sites. But these are also the places where the wetland s, rivers, and lakes protected by the CWA are found. As a result of a change in the definition of fill material, mining companies are currently able to avoid complying with section 402’s rigorous pollution limitations and use waters of the U.S. as industri al waste dumps.

As we are all well aware, mining impacts in Indian Country and throughout the United States have had a profound negative effect on water quality. Proportionally, native villages and Indian Tribes bear the brunt of these impacts because many mines are located within tribal homelands and Tribal members rely, to a greater degree, on usingClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

56 natural resources for their subsistence. Although this is true, it does not discount the fact that the general population as a whole is also subjected to mini ng pollution. The NTWC recognizes that many of the problems we currently face are the result of “legacy” mining pollution and were done in a time when technology was far less refined, scientific understanding of ecosystem function and the effects of mining wastes were unknown, and regulations were absent. These legacy impacts will continue to plague our nation and will need to be addressed for decades, if not centuries. EPA is well aware of this, since a large part of their Superfund program is devoted to r emediation at such sites.

These two loopholes have allowed mining companies to continue to directly discharge pollution into our nation’s waters as they have been doing for over a century. To redefine a lake or a river as a “waste treatment system” is sham eful, an abomination of the natural order of things, and a giant step back in time. The NTWC believes that these loopholes have resulted from industry politics and a lack of oversight by EPA in the protection of our nation’s waters. Therefore, the NTWC urg es EPA to reconsider their position and explicitly limit the waste treatment system exclusion to only manmade waters and to revise the 2002 definition of “fill” to exclude waste disposal. (p. 1

- 3)

Agency Response: See summary response at 7.1

. Comments on the definition of “fill material” are outside the scope of the proposed and final rule.

Allen Boone Humphries Robinson, LLP (Doc. # 19614)

7.67 "Waste Treatment Systems"

The Proposed Rule also excludes "waste treatment systems," including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act. What is unclear is whether the exclusion would include multiple

- use impoundments. Industrial facility impoundments frequently are utilized for important health and safety projects, such as

storm water treatmen t, and water supply for dust suppression, firefighting, irrigation, etc. This exclusion is vague, and creates needless ambiguity. For example, it is unclear whether the exclusion will apply to treatment ponds that have infrequent discharges, or

treatment p onds that were originally designed to meet CWA requirements but later converted to other uses. Likewise, many treatment systems include both retention features and conveyance features, and the Proposed Rule provides no clarity on whether these systems woul d be excluded. (p. 9)

Agency Response: See summary response at 7.1. Also see summary response at

7.3.2

.

B ard of Douglas County Commissioners, Colorado (Doc. #8145)

7.68 Codi f

y and Clarify the Waste Treatment Exclusion

The existing regulations include exclusions for waste treatment facilities that are constructed to meet CWA requirements and are constructed in uplands. Currently, this exclusion is inconsistently implemented or misinterpreted by USACE and EPA staff at

the national offices and regional regulatory field offices level. Clearly, additional language is necessary to restore the intent of this exclusion. Douglas County requests that language be included in the Proposed Rule to state that treatment of stormwater r unoffClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

57 from rural and urban settings conforms to the exclusion and that the exclusion applies to all necessary and constructed components of the waste treatment system. (p. 16)

Agency Response: See summary response at 7.1

.

City of Palo Alto, California (Doc. #12714)

7.69 The wa stewater treatment exemption has a history of legal challenge. Its application to water reuse facilities and storm water features must be clearly defined. (p. 5)

Agency Response: See summary response at 7.1 . See also summary response s at
7.4 regarding new exclusion s for ce rtain stormwater and wastewater recycling

features.

Waters of the United States Coalition (Doc. #14589)

7.70 Treatment wetlands provide a substantial benefit to the environment. They improve water quality and provide habitat for a range of wildlife. Indeed, (a s cited throughout the preamble to the Proposed Rule) the Supreme Court has noted the beneficial role that wetlands can play by treating water before it enters traditional navigable waters or preventing it from getting there in the first place. ( Rapanos at 786) Public agencies look to treatment wetlands to attain compliance with their own Clean Water Act National Pollutant Discharge Elimination System (“NPDES”) requirements and to benefit the

environment as a whole.

Public agencies build treatment wetlands in several instances. The first is when a project will impact or take existing wetlands and new ones are constructed as mitigation. The second instance is when an existing storm drain or other stormwater point source discharges into a traditional navigable water. The agency may consider constructing a wetland at the point of discharge (but outside of the waters of the United States) or upstream in the storm drain to provide treatment to dry weather and other flows before they discharge into the traditional navigable waters.

The third instance involves wetlands created as green infrastructure upstream of a traditional navigable water to reduce pollutant discharges from areas of new construction. These swales and other wetlands serve a treatment purpose in pre cisely the same manner as a constructed wetland at the point of discharge. They trap sediment, hydrocarbons, metals and other pollutants before they reach the storm drain system and long before they enter a traditional navigable water. EPA and most state w ater quality agencies have been encouraging this type of infrastructure for over a decade.

Lastly, water purveyor and waste treatment operators have played crucial roles creating wetlands to provide additional treatment for their POTW discharges. This incl udes constructing wetlands and other ponds as part of the treatment system. While there is currently an exemption for wetlands that are deemed part of the treatment system, that exemption needs to be clarified and reiterated to ensure that constructed wetl ands that are part of a treatment system are not capture by the Proposed Rule. Coalition members therefore request that the EPA and ACOE provide an explanation in the preamble to the Proposed Rule clarifying the scope of the waste treatment exclusion. (p. 11

- 12)

Agency Response: See summary response at 7.1

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

58 7.71 Treatment works with ponds in close proximity to a tributary or traditional navigable water could be classified as “adjacent.” Waste treatment systems frequently rely on percolation ponds and basins as a critical part o f the sewage treatment process. Many waste treatment systems are developing wetland type treatment systems to reduce nutrient and other pollutant levels in the final effluent discharged from the system. These ponds and wetlands are almost always connected to traditional navigable waters or their tributaries because the effluent needs somewhere to go. In many cases the effluent must

be returned to a surface stream so that it can contribute to overall stream flow and be used by downstream water rights holders

. By nature of their location and function these ponds could be classified as waters of the United States under the Proposed Rule. The Proposed Rule needs to very clearly exempt all aspects of the waste treatment system, including “back end” ponds and trea tment wetlands to ensure that the existing exemption is carried forward and to avoid infringing on operation of this critical infrastructure. (p. 40)

Agency Response: See summary response at 7.1 . See also Adjacent Waters, compendium 3.

7.72 Because federal regulations prohibit “waste treatment” to be a designated use for the purposes of water quality standards, reclassification of a water body under the Proposed Rule will hinder many projects that would benefit the environment. This is because many states including California w ill not allow waters of the United States to be converted into treatment systems even if it would be beneficial to the water body as a whole. Similarly, reclassification of existing facilities will prevent them from being used for their intended purpose. ( p. 43)

Agency Response: See summary response at 7.1

. See also summary response at
7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control

features.

National Association of Counties (Doc. #15081)

7.73 “Waste Treatment Systems”

— Water treatment refer s to the process of taking waste water and making it suitable to discharge back to the environment. The term “waste treatment” can be confusing because it is often linked to wastewater or sewage treatment. However,

this can also include water runoff from l andscape irrigation, flushing hydrants, stormwater runoff from roads, parking lots and rooftops.

The proposal states that “waste treatment systems,”

— including treatment ponds or lagoons, designed to meet the requirements of the CWA

— are exempt.43 In recent years, local governments and other entities have moved toward a holistic approach in treating stormwater by using ponds, swales and wetlands. Traditionally, such systems have been exempt from CWA, but due to the broad nature of the proposed rule, we believ e the agencies should also exempt other constructed wetland and treatment facilities which may be included under the proposed rule. This would include, but not be limited to, water and water reuse, recycling, treatment lagoons, setting basins, ponds, artif icially constructed wetlands (i.e. green infrastructure) and artificially constructed groundwater recharge basins

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

59 It is important that all constructed features built for the purpose of water quality treatment or runoff control be exempt, whether or not it was built for CWA compliance. Otherwise, this sets off a chain reaction and discourages further investment which will ultimately hurt the goals of the CWA.

Recommendations:

 The proposed rule should expand the exemption for waste treatment systems if they are designed to meet any water quality requirements, not just the requirements of the CWA. (p. 14)

Agency Response: See summary response at 7.1 . See also summary response s at 7.3.2, 7.4.2

, and 7.4.4 regarding exclusion s for certain settling basins, wastewater recycling fea tures, groundwater recharge basins

, and stormwater control features.

City of Stockton, California (Doc. #15125)

7.74 The wastewater treatment exemption has a history of legal challenge. Its application to

water reuse facilities and storm water features must be clearly defined. (p. 3)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4 regarding new exclusion s for certain stormwater and wastewater recycling

features.

City of Beaverton , Oregon (Doc. #16466)

7.75 We recognize that EPA and the Corps may claim these outcomes are unanticipated. However, there is so much gray area in the proposed rule that the rise of third

- party citizen suits are likely to define all these described waters as WOTUS. The agency's so

called intent will not matter, because where th ere is gray, there will be a lawyer to file a lawsuit. Ultimately, the aggressive reach of this rule and its ambiguous provisions and terminology introduces uncertainty, requires more agency analysis and intervention, and will create increased litigation.

With that in mind, the rule must include the following provisions that are priority concerns for local governments:

...

 Wastewater treatment systems and all associated infrastructure shall not b e considered waters of the U.S. (p. 2

- 3)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control

features.

Las Vegas Valley Watershed Advisory Committee (Doc. #1 6504 )

7.76 The EPA and Corps did not propose any changes to the existing exc lusion from jurisdiction for waste treatment systems designed consistent with the requirements of the CWA. However, the LVVWAC is concerned that the broad definition of "tributaries" under the Proposed Rule would result in man

- made ditches, canals, and off

- river storage ponds that are located on water and wastewater facility sites, but may not formally be partClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

60 of waste treatment systems, to be subject to regulation as WOUS. This additional regulation would be unnecessarily burdensome, and affect LVVWAC memb ers' ability to conduct timely maintenance of those features.

The EPA and Corps specifically excluded certain waters from its definition of WOUS under the Proposed Rule. The LVVWAC supports the intent of these exclusions, and requests that a clear exemptio n also be provided for all water management features that are located within water and wastewater facility sites. The LVVWAC requests the following exclusion be added to the Proposed Rule:

 Ditches, canals, ponds, and other man

- made features used in the ope ration of water or wastewater treatment and supply systems. (p. 2)

Agency Response: See summary response at 7.1 . See also summary response s at
7.4.2 and 7.4.4 regardi ng the agencies’ creation of ex clusion s for certain wastewater recycling and stormwater control features.

Department of Public Works, County of San Diego, California (Doc. #17920)

7.77 The existing exemption language for "waste treatment systems" must be strengthened. The Federal Register posting asserts that there will be no change to the exclusion for

waste treat ment systems. The rule should be expanded to specifically exempt facilities that are designed and installed to meet any water quality requirements, including individual state or local water quality regulatory requirements (for example, the Porter

Cologne A ct in California). CFR Part 328.3 (7) states that waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA are not waters of the United States . Although the agencies specifically state that they are not seeking comment on this section, the County strongly urges the agencies to strengthen and expand this vaguely written exemption, or otherwise explicitly exempt all water quality treatment facilities. Currently, the regulations (“a” and “b” below) appear to only

v aguely exempt "waste treatment systems" (which presumably apply to permanent BMPs such as: detention basins, retention basins, bioswales, etc.) that are designed to meet the requirements of the CWA:

a. Nationwide Permit (NWP) 43 has language that states: " Note that stormwater management facilities that are determined to be waste treatment systems under 33 CFR 328.3(a)(8) are not waters of the United States, and maintenance of these waste treatment systems generally does not require a section 404 permit."

b. Then 33 CFR 328.3(a)(8) states the following : 'Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the

criteria of this definition ) are not waters of the United States."

EXAMPLE: Regulators could potentially allow use of the above NWP 43 or the language in 33 CFR 328.3(a)(8) to exempt maintenance of water quality treatment systems from requiring section 401 and 404 perm its. However, since NWPs are renewed every five years they are not guaranteed to be in existence. In addition, the language in 33 CFR 328.3(a)(8) is vague and does not specifically exempt water quality treatment so individual regulators may not apply this exemption uni formly to water quality treatmentClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

61 facilities . Therefore, the rule should be clarified to specifically exempt maintenance of these water quality treatment facilities. (p. 4

- 5)

Agency Response: See summary response at 7.1 . See also summary response s at
7.4.2 and 7.4.4 regar ding the agencies’ creation of ex clusion s for certain wastewater recycling and stormwater control features.

Department of Public Works & Engineering, City of Cookeville, Tennessee (Doc. #19619)

7.78 Certain categories of waters need to be specifical ly excluded from WOTUS status:

 Constructed wetlands (constructed in uplands) are a waste treatment facility and

should not be considered WOTUS. (p. 2)

Agency Response: See summary response at 7.1

. See also summary response at
7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater control

features.

Rural County Representatives of California (Doc. #5537)

7.79 ...even though your agencies have maintained that there is no intent to impact water reuse facilities, the rule does not clearly address reuse facilities associated with wastewater treatment systems. Reuse facilities were constructed to augment water supply for irrigation and sometimes drinking water, and were not designed with the objective to meet the parameters of the CWA. The rule needs to clearly state your agen cies’ intent for water reuse facilities. (p. 2)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.3 regarding the agencies’ creation of exclusion s for certain wastewater recycling features.

California State Association of Counties ( Doc. #9692)

7.80 Waste Treatment Systems : The proposed rule should expand the exemption for waste treatment systems if they are designed to meet any water quality requirements, not just the requirements of the CWA. This exemption should also apply to individual state or local water quality regulatory requirements (for example, the Porter

- Cologne Act in California). CFR Part 328.3 (7) states that waste treat ment systems, including treatment ponds or lagoons designed to meet the requirements of CWA are not waters of the United

States . CEAC strongly urges the agencies to strengthen and expand this vaguely written exemption, or otherwise explicitly exempt all wa ter quality treatment facilities. Current federal regulations (see "a" and "b" below) appear to only vaguely exempt "waste treatment systems" (which presumably apply to permanent BMPs such as: detention basins, retention basins, bioswales, etc.) that are d esigned to meet the requirements of only the CWA:

a. Nationwide Permit (NWP) 43 has language that states: "Note that stormwater management facilities that are determined to be waste treatment systems under 33 CFR 328.3(a)(8) are not waters of the United State s, and maintenance of these waste treatment systems generally does not require a section 404 permit."Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

62 b. Then 33 CFR 328.3(a)(8) states the following : "Waste treatment systems, l including treatment ponds or lagoons designed to meet the requirements of

CWA 1 (other than cooling ponds as defined in 40 CFR 423 .11(m) which also meet the criteria of this definition) are not waters of the United States."

As an example, NWPs are renewed every five years and their continued existence or

continuation of their condit ions are not guaranteed. The rule should therefore be clarified to exempt maintenance of these facilities. CSAC believes such exemptions are consistent with the agencies' past approach of not inhibiting, and in fact encouraging state and local

entities' ef

forts to further protect the environment. (p. 7)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.4 regarding the agencies’ creation of exclusion s for certain wastewater recycling and stormwater control features.

California Associat ion of Sanitation Agencies (Doc. #12832)

7.81 As the proposed rule and existing practice acknowledge, waste treatment systems designed to meet the requirements of the Clean Water Act are not waters of the U.S., and CASA wants to ensure that as part of these pro posed amendments spreading grounds/basins, treatment ponds/lagoons, and constructed treatment wetlands used as part of the wastewater process are subject to the same exemption. Since these facilities are clearly part of the treatment process, providing add itional treatment, residence and settling prior to discharge, these facilities should be expressly recognized in the rule as falling under the Waste Treatment Exception. (p. 3)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.4 rega rding the agencies’ creation of exclusion s for certain wastewater recycling and stormwater control features.

Oregon Association of Clean Water Agencies (Oregon ACWA) (Doc. #16613)

7.82 Beneficial reuse projects and treatment wetlands should be encouraged.

Anoth er concern is that the proposed rule does not address recycled water projects or innovative treatment technologies. Oregon is a leader in utilizing treatment wetlands to provide additional treatment and cool wastewater treatment plant discharges. These

ben eficial treatment wetlands are permitted through the NPDES program and serve as part of the wastewater treatment plant operations. The proposed rule expressly excludes wastewater treatment systems " designed to meet the requirements of the Clean Water

Act. " These treatment wetlands and other recycled water projects may be intended to fall under this exclusion, but the final rule should specifically state that intent. (p. 2)

Agency Response: See summary response at 7.1

. See also summary response at
7.4.2 and 7.4.4 regarding t he agencies’ creation of an exclusion for certain wastewater recycling features.

Virginia Association of Counties (Doc. #16796)

7.83 Recommendation: For purposes of clarification, VACo proposes that the language under (t)(1) be amended as follows: "Waste treatm ent systems, including treatment ponds, orClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

63 lagoons, or alternative onsite sewage treatment systems designed to meet the requirements of the Clean Water Act." (p. 2)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.4 regarding the agencies’ creation of an exclusion for certain wastewater recycling features.

Iowa League of Cities (Doc. #18823)

7.84 The League is also concerned about any potential impact to wastewater systems and the 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 co nsidered within the jurisdiction of the EPA based upon the proposed rule.

We also have a current issue in Iowa where several cities are having some difficulty getting approval of certain components of a wastewater treatment system from the engineers at IDN R. Some cities are concerned that this situation could lead to a portion of a system that has not been approved by IDNR being considered a "water of the U.S." under the proposed rule. Even though the activities fall within the permit, cities are

concerned that not getting sign off from engineers at IDNR would move those portions outside of the exemption. Request for EPA Response: Does the EPA anticipate that wastewater systems could be impacted by this rule?

Request for EPA Response: Would a project, such a s an equalization basin, be exempted or included as a "water of the United States" if a state agency that operates their NPDES permitting has not signed off on this portion of a system as being part of the design of the wastewater treatment plant? (p. 6

- 7)

Agency Response: See summary response at 7.1

.

U.S. Chamber of Commerce (Doc. #14115)

7.85 The proposed rule excludes “waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.” 11 The agencies state that they do not propose any substantive changes to the exclusion for waste treatment

systems, 12 but the proposed exclusion includes a punctuation change (the insertion of a comma after “lagoons”) that could be interpreted

— or misinterpreted

— as narrowing the scope of the ex clusion. Equally important, the Agencies have missed an opportunity to delete long

- suspended language included only in the NPDES version of the exclusion, and bring greater clarity and certainty to the interpretation and application of the

exclusion.

11 79 Fed. Reg. at 22,263.

12 Id. at 22,217. The Agencies propose to make one ministerial change to delete a cross

- reference to an EPA regula tion for cooling ponds that is no longer in the Code of Federal Regulations. The undersigned groups support this ministerial change, for the reasons the Agencies have acknowledged and explained.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

64 First , although the exclusion itself is fairly straightforward, it has not always been applied consistently. As a result, the same type of feature may be treated as an excluded “waste treatment system” in one instance, but treated as a jurisdictional “water of the U.S.” in

another instance.

Second, by adding a comma after the word “lagoons,” the proposed rule could be read to narrow the scope of the exclusion by requiring that all “waste treatment systems,” not just “treatment ponds or lagoons,” as under the cur rent rules, be “designed to meet the requirements of the CWA” to qualify for the exclusion. This could be interpreted to mean, for instance, that features that were constructed for waste treatment prior to the CWA’s enactment in 1972 do not qualify for the waste treatment exclusion. This creates new interpretive issues, as “designed to meet the requirements of the CWA” can be construed narrowly or broadly. For example, features that were constructed for waste treatment prior to the CWA’s amendment in 1972 c ould not have been designed with CWA compliance in mind. Yet these features often play an important role in achieving compliance with current CWA requirements, and are now commonly excluded from regulation by virtue of the waste treatment system exclusion. The Agencies should avoid this interpretative minefield by deleting the new comma. If they decline to do so, they must acknowledge the change, explain their intentions, and provide public notice and an opportunity for comment.

Third, the agencies retain, in 40 C.F.R. § 122.2, “suspended” language limiting the applicability of the exclusion. Although the suspended language has no legal effect, retaining this language simply adds confusion rather than the certainty the Agencies say is their overarching goal.

In sum, despite the Agencies’ assurances that the waste treatment exclusion is unaffected by the proposal, the proposed punctuation change, in combination with a lengthy history of inconsistent application, would create significant new confusion and uncer tainty for the regulated community. (p. 33

- 34)

Agency Response: See summary response at 7.1

.

Indiana Farm Bureau et al. (Doc. #14119)

7.86 This proposed regulation excludes “waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.” 79 Fed. Reg. at 22,263. Unfortunately, the proposal does not make clear what is intended to be included within the phrase “waste treatment system”. By leaving this important provision unclear in the definition, the agency has left open th e opportunity to expansion of what will be regulated in the future. (p. 3)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.4 regarding the agencies’ creation of exclusion s for certain wastewater recycling and stormwater control fea tures.

Pennsylvania Chamber of Commerce and Industry (Doc. #14401)

7.87 The existing regulatory structure for wastewater treatment ponds at electric generation should also be preserved. (p. 4)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

65 Agency Response: See summary response at 7.1

.

South Carolina Chamber of Commerce (D oc. #14535)

7.88 ...there is no definition for the term "waters" which leaves open the possibility for both uncertainty and complexity in application of the term. Of specific concern to our members is the potential for industrial holding ponds or components there of, such as stormwater treatment ponds, cooling water ponds or wastewater treatment ponds, to fall within the jurisdiction of this program. We believe that the definition of waters should be

such that man

- made structures used for commercial or industrial p urposes are clearly excluded. (p. 2)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding the exclusion s for certain cooling ponds and wastewater recycling and stormwater control features.

7.89 There should be no questio n that any stormwater management facilities that are part of an industrial stormwater pollution prevention plan under a stormwater permit are clearly covered by the waste treatment system exemption. Nonetheless, due to the expansive definitions and other p rovisions previously discussed, the preamble to any final rule should specifically state that this is the case to remove a ny doubt among all

stakeholders... (p. 4)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features.

7.90 Waste Treatment Systems :

The proposed rule inserts a subtle punctuation change in the waste treatment system exclusion that could be misinterpreted to narrow the exc lusion (a result the Agencies have said they do not intend). The current rule excludes: "Waste treatment systems, including ponds or lagoons designed to meet the requirements of the Clean Water Act." With this punctuation, the qualifier "designed to meet t he requirements of the Clean Water Act" modifies only the phrase "ponds and lagoons." The Proposed Rule would add a comma after "lagoons," thus excluding "[w]aste treatment systems, including ponds or lagoons, designed to meet the requirements of the Clean Water Act." This punctuation change could be interpreted to change the reach of the qualifying language by applying it to all waste treatment systems. Under this reading, all systems, not just "ponds and lagoons" to which the qualification currently appli es, would have to be "designed to meet the requirements of the Clean Water Act" in order to fall within the exemption.

This creates new interpretative issues, as "designed to meet" could be construed narrowly or broadly. For example, features that were constructed for waste treatment prior to the CWA's enactment in 1972 could not have been designed with CWA compliance in mind, yet such features often play an essential role in achieving compliance with current CWA requirements and are commonly excluded fr om regulation by virtue of the waste treatment system exclusion. The Agencies should avoid this interpretative minefield by deleting the new comma. (p. 8)

Agency Response: See summary response at 7.1

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

66 Institute of Scrap Recycling Industries, Inc. (Doc. #15041)

7.91 Potential E ffects Originating On

- Site

First, the potential effect of the proposed definition on the facility from within (i.e., on

site) would seem to be negated by the first exclusion: “(1) Waste treatment systems, including treatment ponds or lagoons, designed to m eet the require ments of the Clean

Water Act....”

. 13 This exclusion exists in the current definition and importantly predates the 1987 CWA amendments that gave rise to NPDES permits for certain stormwater

- only discharges. While the intent of this exclusion is laudable and appropriate

— to prevent

non

- waters of the U.S. that are collected or present in structures created for CWA compliance from newly becoming themselves “waters of the U.S.” that would require additional CWA compliance

— the exclusion is arguably ins ufficient to exclude on

- site

control measures for industrial stormwater because the exclusion uses the term “waste treatment systems”.

In the CWA

, 14 as amended, the term “waste treatment system” appears only three times (once in the plural), and “waste” is not defined. “Waste treatment system” is most closely

connected to “the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature”, and if there is any connection between “waste treatment systems” and stormw ater, it is via the following phrase farther down in the same paragraph:

“...; and any other method or system for preventing, abating, reducing, storing, treating, separating, or disposing of municipal waste, including storm water runoff, or industrial waste , including waste in combined storm water and sanitary sewer systems;” (Title II, §218).

Elsewhere, CWA grants for research and development address separately “storm water or

both storm water and pollutants” and “advanced waste treatment and water purification methods [omitted parenthetical], or new or improved methods of joint treatment systems for municipal and industrial wastes” (Title I, §105(a)). Similarly, CWA grants for the construction of treatment works may be applied to “the necessary wast e water collection and urban storm water runoff systems” (Title I, §208(b)(2)). These examples support the

existence of a distinction between “waste water” and “storm water”.

Based on the above, it seems clear that industrial stormwat er (runoff) is not was te;
theref ore, this proposed exclusion’s reliance on “waste treatment systems” is inadequate

to fulfill its laudable and appropriate intent. To make this exclusion sufficiently expansive to cover the current scope of NPDES permits, which includes discharge s of

both industrial wastewater and industrial stormwater, and to meet its laudable and appropriate intent, this exclusion could be revised as follows: “(1) Treatment systems and control measures, including but not limited to treatment ponds or lagoons for wastewater

13 Only in 40 CPR§122 docs this exclusion further include the following suspended requirement: " This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United Stat es".

14 Federal Water Pollution Control A CI (33 U.S.C. 125 1 et seq.), as amended through P.L. 107

- 303, November 27, 2002, as rendered in http://www.epw.senate.gov/water.pdf and accessed via http://www2.epa.gov/laws

regulations/summary

- clean

- water

- act

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

67 and retention ponds for stormwater, designed to meet the requirements of the Clean

Water Act”. (p. 3

- 4)

Agency Response: See summary response at 7.1

. See also summary response at
7.4.4 regarding the agencies’ creation of an exclusion for certain stormwater cont rol

features.

American Council of Engineering Companies (Doc. #15534)

7.92 §122.2(b)(2) "Waste treatment systems, including treatment ponds or lagoons, de s igne d

to meet the requirements of the Clean Water Act."

This regulation appears to be an obvious reference to wastewater treatment ponds and lagoons, but may refer to stormwater ponds as well. However, if the stormwater pond is to be excluded, it must be designed for the purposes of storm water treatment. If the storm water pond is for the purpose of estimatin g and managing attenuation volume only,

it is not excluded.

Since the regulations are jointly issued by EPA and USACE, there are two consequences to the designation of man

- made ditches and storm water ponds as regulated waters of the

U.S. First, water qua lity standards must be met, including water quality criteria and antidegradation requirements, Second, USACE dredge and fill requirements would be applicable. Ther e fore, stormwater attenuation ponds (with no water quality trea tment) and drainage ditches th at are in the floodplain would be required to meet water quality standards and jurisdictional requirements

- even during routine maintenance activities, This results in a significant change in what has been considered regulated waters, especially in coasta l communities. (p. 5)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features.

Federal Water Quality Coalition (Doc. #15822.1)

7.93 Waste Treatment Systems and Prior Converted Cropland.

Current regulations include exemptions for waste treatment systems, including impoundments “designed to meet the requirements of the Clean Water Act,” and for prior converted croplands. While the words of the wastewater treatment exemption are not being changed, the agencies are proposing to add a comma before the “designed to” clause, potentially applying that clause to all waste treatment systems, not just impoundments. This change would create significant uncertainty about the s cope of the long

- standing waste treatment system exemption. (p. 18)

Agency Response: See summary response at 7.1

.

Water Advocacy Coalition (Doc. #17921.1)

7.94 The exclusion for waste treatment systems fails to provide clarity.

The proposed rule excludes “waste treatment syste ms, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.” 79 Fed. Reg. at 22,263. Instead of taking this rulemaking as an opportunity to clarify longstandingClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

68 confusion on the waste treatment exclusion, the agencie s have decided to avoid the issue all together. The agencies state that they do not propose any changes to the exclusion for

waste treatment systems, id . at 22,217, but we have several concerns with the agencies’ handling of this exclusion.

First, the appl icability of this exclusion has been anything but clear. 15 In the experience of Coalition members, there is not a uniform understanding of what the agencies consider to be a “waste treatment system,” and, as a result, the exclusion has been implemented

inco nsistently in the field. The same feature may be treated as an excluded “waste treatment system” in one instance, but treated as a jurisdictional “water of the United

States” in another instance.

Second, the addition of a comma in the regulatory text chang es the meaning of the waste treatment exclusion. Under the existing regulations, the phrase “designed to meet the requirements of the CWA” modifies the examples of “treatment ponds or lagoons.” 33 C.F.R. § 328.3(a). The proposed rule’s addition of a comma after “treatment ponds and lagoons” narrows the scope of the exclusion by requiring that all “waste treatment systems,” not just “treatment ponds or lagoons,” be “designed to meet the requirements of the CWA” to qualify for the exclusion. This could be int erpreted to mean, for instance, that features that were constructed for waste treatment prior to the CWA’s enactment in 1972 do not qualify for the waste treatment exclusion. Although the agencies say that they only propose “ministerial” changes to the was te treatment exclusion, 79 Fed. Reg. at 22,217, the addition of this comma is a substantive change that would have significant implications for many existing waste treatment systems. The agencies should remove the new comma from the proposed regulatory tex t.

Third, the agencies improperly retain, in 40 C.F.R. § 122.2, both: (1) the sentence proclaiming that the waste treatment exclusion “applies only to manmade bodies of water which neither were originally created in waters of the United States (such as dis posal area in wetlands) nor resulted from the impoundment of waters of the United States,” and (2) the accompanying footnote explaining that EPA suspended the sentence in question in

1980. See 79 Fed. Reg. at 22,268. The suspended sentence would have drast ically limited the scope of the waste treatment exclusion. Although this language was suspended in 1980, courts have struggled with this issue, and in some instances have erroneously applied the suspended language. 16 Retaining this suspended language simply adds confusion to an already confusing exclusion. To provide clarity, the agencies should delete the suspended sentence and accompanying footnote from 40 C.F.R. § 122.2. (p. 71)

Agency Response: See summary response at 7.1

.

15 Other groups, including the Utility Waters Act Group (“UWAG”), National Mining Association (“NMA”), and

Edison Electri c Institute (“EEI”), have submitted comments that more fully address the history of the waste treatment exclusion and the confusion surrounding its application. The Coalition urges the agencies to respond to the concerns raised in these groups’ comments on this issue.

16 See, e.g., West Virginia Coal Ass’n v. Reilly , 728 F. Supp. 1276, 1290 (S.D. W. Va. 1989); United States v. TGR Corp. , 171 F.3d 762, 765 (2d Cir. 1999); Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng’rs , 2007 WL 2200686 (S.D. W.Va. June 13, 2007), rev’d, 556 F.3d 177 (4th Cir. 2009).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

69 Virginia Manufacturers Association (Doc. #18821)

7.95 Despite the Agencies' claims that the exclusion for waste treatment systems has been preserved, the Proposal includes an apparent clerical error that could have the effect of narrowing the exclusion. The Proposal adds a comma after "lagoons" in the exclusion. This change could be construed to make all waste treatment systems subject to the "designed to meet" standard. This is problematic because many waste treatment systems

were installed well before the Clean Water Act and thus could not have been "designed to meet" the requirements of the statute. Virginia's "surface waters" definition, modeled on the federal standard, does not include a comma after "lagoons." See 9 VAC 25

- 31

- 10. VMA requests that the Agencies delete the comma, consistent with the traditional federal language and the Virginia regulations, so that the exemption provision is retained as, "Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act." (p. 3)

Agency Response: See summary response at 7.1

.

National Association of Home Builders (Doc. #19540)

7.96 The Waste Treatment Systems Exclusion is Unclear and has been Unpredictable in

Practice.

Today’s proposal excludes “waste treatment systems, including treatment ponds or lagoons, designed to mee t the requirements of the Clean Water Act.” 17 The Agencies state that they do not propose any changes to this exclusion and in fact are not even accepting comments on it, but its applicability has been anything but clear. 18 The following are just a sample of some of the ambiguities associated with the waste treatment systems exclusion:

 Waste treatment system

– What do the Agencies consider to be a waste treatment system? Does the exclusion include ditches and conveyances that connect to treatment ponds? Does it include features that manage or store but do not treat water? Does it include stormwater retention basins? The Agencies must define “waste treatment systems.” They should also clarify that all on

- site maintenance of water, including transport, storage, treatment, and use, are non

- jurisdictional. Indeed, any discharges into waters of the United States that result from these activities are already covered under CWA Section 402.

 “Designed to meet the requirements of the Clean Water Act”

– Is the exclusion

l imited to waste treatment units that were specifically designed to satisfy CWA obligations? Does the exclusion extend to waste treatment systems that were created before the enactment of the CWA? What if the system was installed

before the CWA but was modi fied later to ensure the facility was able to comply with its NPDES permit? What if a feature was designed and used for treatment, but the owner has now ceased to use it for that purpose? What if the feature was

17 79 Fed. Reg. at 22,263.

18 Id. at 22,190 (“Because the agencies do not address the exclusions from the definition of ‘waters of the United States’ for waste treatment systems and prior converted cropland or the existing definition of ‘wetlands’ in this proposed rule the agencies do not seek comment on these existing regulatory provisions”).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

70 installed to meet the requirements of a loca l or state ordinance and not the CWA? Because of the confusion and limits the phrase “meet the requirements of the Clean Water Act” places on the waste treatment system exclusion, the phrase

should be removed.

 Man

- made basins or ponds

– Man

- made basins and ponds serve a myriad of environmental and process purposes and do so in an environmentally responsible manner (e.g., fracking ponds). To render theses systems “waters of the United States” would make them prohibitively expensive and would altogether elimi nate their viability. The waste treatment system exclusion should extend to man

- made

basins.

In the context of the CWA, the waste treatment exclusion makes imminent sense, but the value and practicalities of the exclusion could be quickly lost. NAHB urges the Agencies to engage with stakeholders who rely on the waste treatment exclusion to understand the confusion and unpredictability that surrounds it. After having these critical stakeholder discussions, the Agencies should propose a revised rule that addr esses the waste treatment systems exclusion and provides much needed clarity for regulators and the regulated community. (p. 105)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.4 regarding the agencies’ creation of exclusion s for certain wastewater recycling and stormwater control features.

Vulcan Materials Company (Doc. #14642)

7.97 The exemptions from CWA jurisdiction currently provided by the USEPA and USCOE under the CWA should be listed in the proposed rule, specifically the e xemption for excavations and pits at aggregate mining operations, and the water treatment system exemption. The scope of these exemptions needs to be clearly stated and consistent with the historic use and application of the exemptions. (p. 4)

Agency Response: See summary response at 7.1

. See also summary response at
7.3.5 regarding the agencies’ exclusion for certain aggregate mining pits

.

Texas Mining and Reclamation Association (Doc. #10750)

7.98 The Agencies Should Clarify that Previously Non

- Jurisdictional Water Features o n Mine Sites Will Not Become Jurisdictional Waters Under the Proposed Rule.

Of critical concern to TMRA's members is the possibility that many water features constructed and used to manage water associated with mining operations which are currently not con sidered jurisdictional could fall within the definition of "waters of the United States" under the proposed rule. Diversion and conveyance ditches, including natural features within a permitted mine site, sediment and treatment ponds and impoundments, and other components of water treatment facilities are integral to mining operations, and are used to manage, contain, convey, and treat on

- site waters in order to comply with existing environmental standards pursuant to the CWA, Surface Mining

Control and Rec lamation Act ("SMCRA"), and other federal and state mining laws and regulations. These features are currently excluded from CWA jurisdiction and should clearly remain excluded in any final rule.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

71 Notably, mining operations are required to obtain all appropr iate environmental licenses and permits in advance of any land disturbance, including CWA Sections 404, 402, and 401 permits and certifications. By way of one example, under Section 404 of the CWA, mining operations are typically required to mitigate the d isturbance of onsite "waters of the United States" through the creation of off

- site and on

- site wetlands and streams. If the

rule is not clarified to exclude these on

- site operational water management features from

the definition of "waters of the United S tates," the mining industry will be forced to obtain permits and provide mitigation in a never ending regulatory loop to meet other performance standards and requirements, including those required under the CWA, SMCRA, Mine Safety and Health Act, etc.

As s uch, TMRA urges the Agencies to revise the proposal to clarify that on

- site water management features, including all structures

– natural and man

- made

- that contain, convey, and, as necessary, chemically or physically treat on

- site water associated with

m ining operations, continue to not constitute "waters of the United States.” Failure to do so will have serious implications on the mining industry in Texas, possibly rendering

some mini ng operations unfeasible.

On

- Site Stormwater and Surface Water Managem ent Features are Integral to Mining Operations

. Mining operations take place over vast stretches of land

— typically several square miles

– and generally include complex process water systems. Mining operations are also dynamic, with different phases of acti vities such as construction, extraction and removal, and reclamation occurring at varying times and in different areas throughout the mine site. Mining companies depend on a variety of water management features within their mine sites to, for example, mana ge stormwater runoff from disturbed areas, recycle water for reuse such as for dust suppression, or convey water to ponds or basins where solids are settled out prior to reuse or discharge. Some water management features are created on dry lands, while oth ers are created by impounding or modifying existing waters of the United States pursuant to Section 404 permits. These water management features historically have not been deemed "waters of the United States." Indeed, EPA has

determined that these on

- site waters are "treatment systems" that represent best practicable control technology and best available technology economically achievable for purposes of managing process wastewater consistent with the requirements of the CWA, or in other cases, that these f eatures are part of required non

- process and storm water

management systems. 19 Under SMCRA, these features are considered components of required water diversion and drainage systems.

...Mine operators also rely on a broad range of ponds and impoundments (typi cally, sediment ponds in Texas) to support mining operations. Like ditches and conveyances,

19 See effluent limitation guideline development for coal, hard rock and phosphate mining sectors, determining use of pon ds, impoundments, and basins to be best practicable control technology for controlling discharge of process generated waste water. 42 Fed. Reg. 21380 (Oct. 17, 1975); 44 Fed. Reg. 2586 (Jan. 12, 1979); 46 Fed. Reg. 28873 (May 29, 1981); 47 Fed. Reg. 45382 (Oct. 13, 1982); 50 Fed. Reg. 41296 (Oct. 9, 1985); 67 Fed. Reg. 3370 (Jan. 23, 2002); 42 Fed. Reg. 35843 (Jul. 12, 1977); 43 Fed. Reg. 9808 (Mar. 10, 1978); 43 Fed. Reg. 29711 (Jul. 11, 1978); 47 Fed. Reg. 54598 (Dec. 3, 1982); 53 Fed. Reg. 18764 (May 24, 1988). 450 Fed. Reg. 41296, 41303 (Oct. 9, 1985).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

72 mine operators depend on these features to manage, store, and treat water within the mine site. According to EPA, these ponds and impoundments are considered to be a treatment
method becau se they physically remove suspe n ded solids and metals. 20

...
On

- site water management features are highly regulated during the life of the mining operation. Among other things, these systems are designed to ensure that any surface

disch arges from a mine site into navigable waters is covered by an NPDES permit and as such will not cause or contribute to violations of water quality standards. Some water management features within mine sites are designed to be zero discharge systems. At

tho se sites, water that is collected and managed is either reused in mining processes or it evaporates; it is not discharged to navigable or other state waters. Declaring these required water management and treatment systems to be "waters of the United States " would eliminate their entire purpose of ensuring that water and wastes associated with mining operations are properly managed and treated before leaving the site, and would upend the entire CWA regulatory scheme that has existed for over forty years...

As Currently Written, the Definitions in the Proposed Rule Could Inappropriately

Extend CWA Jurisdiction to On

- Site Water Management Features at Mine Sites.

On

- site water features in the mining industry historically have not been considered

"waters of the United States" under the existing regulatory framework. The Agencies have generally not attempted to assert jurisdiction over ditches on mine sites, 21 and in those rare instances where the Corps has asserted jurisdiction, it has done so on a case

by

- case ba sis. Most on

- site waters fall within the scope of the waste treatment system exclusion, as the Agencies have recognized in prior guidance documents and practice. 22
However, the application and scope of the regulatory exemption has not always been

consistent ly applied in the courts and has been misconstrued by mining opponents. Consequently, mining permittees have had to undergo costly jurisdictional determinations and defend against citizen lawsuits.

For example, in Ohio Valley Envtl. Coal. v. Aracoma Coal C o ., citizen groups challenged the scope of the exclusion by alleging that coal mine operators had to obtain a CWA

20 50 Fed. Reg. 41296, 41303 (Oct. 9, 1985).

21 During the first decade or so after the passage of the CWA, EPA and the Corps took the position that drainage ditches are excluded from CWA jurisdiction. See, e.g., 40 Fed. Reg. 31,320, 31,321 (July 25, 1975). The Agencies have since taken the position that some non

- tidal drainage and irrigation ditches could be "waters of the United

States" on a case

- specific basis. See, e.g., 51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986); 53 Fed. Reg. 20,764, 20,765 (June 6, 1988).

22 See, Wilcher, LaJuana S., Memorandum to EPA Director Region X EPA CWA Regulation of Mine Tailings Disposal (Oct. 2, 1992)(clarifying discharge of mine tailing for disposal/treatment into impounded w aters for the purpose of containing and treating those materials does not require a permit under the CWA but that any discharge from the waste treatment system requires a 402 permit); Regas, Diane, et al., to EPA Director Region X CWA Regulation of Mine Ta ilings (May 17, 2002)(affirming revised definition of fill and discharge of fill material did not alter EPA's interpretation of waste treatment system exclusion from CWA regulation); Grumbles, Benjamin H., Memorandum to Hon. John Paul Woodley Assistant Sec retary of the Army (Civil Works) (Mar. 1, 2006) (recognizing that some segment of the stream must be used to convey water from the fill to the sediment pond and that such stream segment is an unavoidable and necessary component of the treatment system beca use it is required to convey water and because it also provides initial treatment by settling some fraction of suspended sediments in the flow and clarifying that the entire system contributes to ensuring that the discharge from the sediment pond

meets the requirements of the CWA and is exempt from CWA regulation).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

73 Section 402 permit for discharges from stream segments used to convey on

- site, non

process runoff water to sediment ponds. Contrary to the cit izen groups' claims, however, the Fourth Circuit upheld the Corps' application of the waste treatment system exclusion

to in

- stream sediment ponds and stream segments flowing into those ponds within a coal mining site. 23 In so holding, the Court drew upon d iscussions from Agency guidance documents explaining that stream segments are a necessary component of treatment systems because they are required to convey water and provide initial treatment by settling suspended sediment, and because the entire system c ontributes to ensuring that the discharge from the sediment ponds meets the requirements of the CWA. Importantly, the court emphasized the Agencies' "consistent administrative practice." 24

CWA regulations also clearly contemplate that the scope of the waste water treatment system includes all structures, channels, ponds 25 and other water treatment components. 26
Furthermore, in developing effluent limitations for the mining sectors, EPA incorporated the use of settling ponds for pre

- treatment prior to recycle/re use or discharge and the use of stormwater diversion ditches for keeping non

- contaminated water from commingling with process wastewater as best practicable control technology currently available." Similarly, environmental standards pursuant to SMCRA also consider use of ditches and sediment ponds as best technology currently available for preventing additional contributions of suspended solids to stream flow or runoff outside the permit area, as well as for compliance with State and federal water quality s tandards. 27

Economic analyses associated with these effluent guideline development efforts were based on the assumption that such "treatment facilities" and "treatment systems" would be used to meet water quality requirements. 28 Those guidelines define the term "treatment system" to include "all structures which contain, convey, and as necessary, chemically or physically treat coal mine drainage, coal preparation plant process wastewater, or drainage from coal preparation plant associated areas, which remove pollutants...from such waters. This includes all pipes, channels, ponds, basins, tanks and all other equipment serving such structures." 29 The Agencies should therefore clarify that waste treatment systems include all these components that together ensure that any discharges from the system meet the requirements of the CWA... (p. 4

- 8)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins and wastewater recycling and stormwater control features.

23 556 F.3d 177, 212

- 216 (4th Cir. 2009).

24 Id . It should also be noted that, in the context of surface coal mining, features such as on

- site ponds and conveyances are regulated under SMCRA.

25 On

- site ponds that incidentally manage water, but which were constructed for other purposes, should also be excluded from jurisdiction. These ponds can include emergency cooling water ponds, emergency firewater ponds, ponds used for dust suppression water, ev aporation ponds, and water recycle ponds.

26 See 40 C.F.R. Part 434 (o).

27 30 U.S.C. Section 1265(b) (10).

28 50 Fed. Reg. 41296, 41306 (Oct. 9, 1985); 42 Fed. Reg. 35843, 35846 (Jul. 12, 1977).

29 Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

74 7.99 The Agencies Should Revise Certain Exclusions in the Proposed Rule to Ensure that Previously Non

-

jurisdictional On

- Site Water Features at Mine Sites Remain

Outside of the Definition of "Waters of the United States."

TMRA strongly supports the provisions in the proposed rule that identify categories of waters that are per se excluded from the definition of "waters of the United States" and the "no recapture" clause in the regulatory text that makes it clear that an exclusion

controls even i f the waters might otherwise meet the rule's definition of "waters of the

United States.” 30 TMRA also strongly supports the Agencies' exclusion of groundwater from CWA Jurisdiction. TMRA, however, urges the Agencies to revise certain proposed

exclusions to ensure that on

- site water management features used to contain, convey, or

treat water at mines are excluded from the definition of "waters of the United States." As currently drafted, the exclusions are not sufficiently clear to effectuate that result.

The Scope of the Waste Treatment Systems Exclusion Must be Clearly Defined

The preamble to the proposed rule indicates that the Agencies propose only "ministerial actions" with respect to the waste treatment system exclusion and that the Agencies "do

not prop ose to address the substance of the waste treatment system exclusion.” 31 The proposed "ministerial actions" have, however, narrowed the scope of the exclusion. Moreover, given the potential for additional litigation over the scope of the existing exclusion, the Agencies should take this opportunity to provide much needed clarity.

The proposed "ministerial changes" to the existing exclusion include the deletion of a cross reference to an EPA regulation (40 C.F.R. § 423.1 1(m)) that is no longer in the

Code o f Federal Regulations and the addition of a comma before the term "designed." In proposing these changes, EPA has significantly narrowed the exclusion by requiring that all waste treatment systems be "designed to meet the requirements of the CWA." Under

th e existing regulations, the phrase "designed to meet the requirements of CWA" modifies the examples of "treatment ponds or lagoons." 32 The proposed language, however, excludes all waste treatment systems that were not designed to meet the requirements of th e CWA, which could include, for instance, those that were constructed before 1972 or those that were designed to be zero discharge or to meet SMCRA's environmental protection standards internal to an approved mining permit area. By mandating that all waste treatment systems be designed to meet the requirements of the CWA, the Agencies' "ministerial" change will have the unintended consequence of potentially denying application of the exclusion to many existing waste treatment systems, including pursuant to citizen suits. It is important to note that there has been litigation over multiple facets of this particular exclusion, and as such even the most minor of grammatical changes could easily incite more court challenges. Because the Agencies' proposal is not intended to "address the substance" of or narrow this exclusion, the Agencies should remove the new comma from the regulatory text.

Furthermore, in declining to address the substance of the exclusion, the Agencies have sidestepped several ambiguities that have caused a great deal of confusion over the past

30 See 79 Fed. Reg. at 22,263, 22,217.

31 79 Fed. Reg. at 22,217.

32 See, e.g. , 33 C.F.R. § 328.3(a).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

75 several decades. In light of the fact that, as explained above, the language in the proposal

- particularly the definitions of "tributary" and "adjacency," and the application of the aggregation concept could be misread to bring on

- site waters under jurisdiction unless they are specifically excluded, despite the contrary intention of the Agencies, there is an

increased need for clarification under this rule.

First, the proposed revision to 40 C.F.R. § 122 .2 33 needlessly retains both (i) the sentence proclaiming that "[t]his exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundme nt of waters of the United States"; and (ii) the accompanying footnote explaining that EPA suspended the sentence i n question since July 21, 1980. 34 The suspended sentence would have limited the scope of the waste treatment system exclusion substantially, a s many waste treatment systems within the mining industry, as well as in other industries, incorporate waters of the United States. Even though EPA suspended the sentence attempting to limit the waste treatment system exclusion back in July 1980, the limit ation has been erroneously applied since that time

, even by some federal courts. 35 To avoid future erroneous attempts to revive the suspended language and to ensure uniformity across all regulatory programs under the CWA, the Agencies should delete the susp ended sentence and accompanying footnote 1 from 40 C.F.R. § 122.2.

Deletion of the suspended sent ence and accompanying footnote 1 would also help clarify that waste treatment systems resulting from the impoundment of jurisdictional waters are

excluded from the definition of "waters of the United States." In the past, the Agencies have recognized that the waste treatment system exclusion encompasses those systems that are created in jurisdictional waters or that result from the impoundment of jurisdictional waters." 36 But that interpretation and recognition is not reflected in the Code of Federal Regulations so long as the suspended language remains in place. The preamble further adds to the uncertainty by declaring that "as a legal matter an impoundment of a 'water of the United States' remains a 'w ater of the United States[.]", 37
The Agencies can resolve this uncertainty by deleting the suspended sentence and accompanying footnote and replacing it with regulatory text that leaves no doubt that the

waste treatm ent system exclusion applies to those systems with impoundments of jurisdictional waters, such as "This exclusion applies to waste treatment systems created in waters of the U.S. or with impounded waters of the U.S. where the impoundment was

constructed fo r the purpose of serving as part of the waste treatment system. In the case of an impoundment or fill whose construction pre

- dated the CWA requirement to obtain a section 404 permit, it must be demonstrated to the satisfaction of the permitting authority

t hat the impoundment is being or will be used for the purposes of being part of a waste treatment system."

33 See 79 Fed. Reg. at 22,268.

34 40 C.F.R. § 122.2 is the only provision defining "waters of the United States" that contains this limiting sentence

and footnote.

35 See, e.g.

, United States v. TGR Corp. , 171 FJd 762, 765 (2d Cir. 1999); Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng'rs , 2007 WL 2200686 (S.D. W.Va. June 13,2007), rev'd by 556 F.3d 177 (4th Cir. 2009).

36 See OVEC , 556 FJd at 212

- 216 (citing agency guidance documents).

37 79 Fed. Reg. at 22,201.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

76 Second, the Agencies should also clarify, in the preamble and the regulatory text, that the term "treatment" for purposes of the waste treatment syste m exclusion includes, but is not limited to, methods such as wastewater and stormwater retention, concentration (evaporation), settling, and active and passive treatments (in

- situ or in

- process) to remove or reduce pollutants. Mining companies uniformly re ly on these forms of treatment to· support their operations and ensure that, if there are any downstream discharges, they meet all applicable NPDES effluent limits. Waste treatment does not necessarily require the addition of chemicals or the use of comple x technologies like ion exchange or reverse osmosis. Natural processes such as detention over time, evaporation, or pollutant uptake by aquatic vegetation can effectively help solids settle out and even remove pollutants as

in the case of neutralization an d/or geochemical transformations in pipeline mixing. Collecting and retaining wastewater and stormwater runoff in on

- site water management features is a widely used form of waste treatment in many industries, including mining,

and as discussed above is wid ely recognized by EPA and SMCRA authorities.

Finally, the Agencies should explicitly recognize, a s they have in prior practice, 38 that channels, diversions, ditches, feeder streams, wetlands, and other on

- site features carrying flow to and from ponds and i mpoundments used to treat wastewater and stormwater are part and parcel of water treatment systems at mine sites. Such features are necessary to convey and manage wastewater and stormwater within the mine site, and they help sediment and other pollutants s ettle out before any water is released to downstream waters of the United States. Water that is conveyed from the mine site to downstream jurisdictional waters requires an NPDES permit and, not surprisingly, NPDES permitting authorities have typically agre ed that it would be senseless to require additional permits above the point of discharge to downstream jurisdictional waters. Nevertheless, to avoid any potential confusion in the field concerning the scope of the waste treatment system exclusion, the Agen cies should make it clear that the exclusion encompasses all components of the treatment system, including but not limited to ponds/impoundments and the related flowing waters within a mining project site that are necessary to convey waters to and from tho se ponds and impoundments. (p. 13

- 16)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

Pennsylvania Coal Alliance (Doc. #13074)

7.100 The PCA does not support proposed revisions to the waste treatment system exclusion, but does support other revisions to clarify the applicability of the

exclusion.

As more fully discussed in NMA’s [National Mining Association] comments, onsite water features associated with the mining industry have not historically been considered “waters of the United States.” Courts have held that the waste treatment system exclusi on applies to in

- stream sediment ponds and stream segments flowing to those ponds from

38 See fn. 7.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

77 coal mines. 39 Similarly, treatment ponds used in mining activities have also traditionally fallen under the wastewater treatment pond exclusion under the current definiti on of “waters of the United States.” The PCA supports NMA’s comments that the Proposed Rule should not be changed, as proposed, to ensure that its language does not, intentionally or unintentionally, narrow or eliminate the waste treatment system

exclusion

. The PCA also supports NMA’s comments that the Proposed Rule should be revised to clarify that: (1) the waste treatment systems exclusion applies to impoundments of jurisdictional waters where the impoundment was constructed for the purpose of serving

as part of the waste treatment system, (2) “treatment,” for the purposes of the waste treatment system exclusion includes evaporation, wastewater and stormwater retention, settling and active and passive treatment, (3) the exclusion extends to the ditches, fe eder streams or other features that convey waters to the waste treatment ponds and impoundments.

If the waste treatment system exclusion were no longer applicable to the on

- site water features of mining sites, treatment ponds, sedimentation basins and the ditches and conveyances flowing to these structures could be considered jurisdictional waters as tributaries, adjacent waters or other waters, as explained in more detail within these comments. (p. 12

- 13)

Agency Response: See summary response at 7.1

. See also summary respo nses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins and wastewater recycling and stormwater control features.

Newmont Mining Corporation (Doc. #13596)

7.101 The Scope of the “Waste Treatment System” Exception is Unclear: The Agencies ’ Proposal retains the existing exception from jurisdictional waters for “waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the

Clean Water Act.” See, e.g ., paragraph (b)(1) at 79 Fed. Reg. 22263. Because n o State or federal regulators have ever thought to consider Newmont’s artificial ponds to be jurisdictional waters, Newmont has never been required to determine whether they could fit within this “waste treatment system” exception. Having now reviewed the history of that provision for purposes of preparing these comments, it is evident that the scope of that exception is far from clear.

Newmont’s TSFs, pregnant and barren solutions ponds, and quench ponds are designed to achieve zero discharge to surface wa ter, in order to comply with the law of Nevada (which has been delegated CWA 402 authority by EPA) and, in the case of TSFs, with the ELGs established under the CWA for process wastewater from the precious metal mining industry. 40 C.F.R. §§ 440.100

- 440. 105. In addition, the stormwater retention ponds are designed to comply with Newmont’s CWA 402 general stormwater permit. Thus, all of Newmont’s artificial ponds are designed to meet the requirements of the CWA. Moreover, “treatment” arguably occurs in all of these ponds because the solids in the solutions and slurries that enter these ponds settle, so that the liquids can be recycled

39 Ohio Valley Environmental Coal v. Aracoma Coal Company , 556 F.3d177, 212

- 219 (4th Cir. 2009).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

78 for further use into production operations. We therefore believe that these ponds would satisfy the “waste treatment system” exception contained in the current regulations and the Agencies’ Proposal, but cannot be sure. This is because the waste treatment system exception has a tortured history. The NMA, whose comments we incorporate here, points out the lack of clarity in what the exception encompasses and what it does not encompass. As such, Newmont cannot obtain solace from the existing “waste treatment system” exemption to ensure that its artificial ponds are not deemed jurisdictional waters. (p. 20

- 21)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins and wastewater recycling and stormwater control features.

7.102 Suggested Changes to the Proposal

As noted, EPA and Corps officials with whom we have s poken about this matter have been adamant that the Agencies’ Proposal was never intended to encompass mining artificial ponds, and associated constructed ditches and channels, such as those that are operated by Newmont and other hardrock mining companies i n the arid and semi

- arid West. But given the wording of the Proposal, we cannot be sure that every Corps or EPA regulator will reach the same conclusion. We therefore urge that EPA make clear in any final rule that such artificial ponds, and associated dit ches/channels, are not jurisdictional waters. Solutions include the following: 40

1. Creating a new exception in subsection (b) of the Proposal for: “Hardrock mining artificial ponds (including tailings impoundments, tailings storage facilities, pregnant

and ba rren solution ponds, quench ponds, event ponds and stormwater retention ponds/sediment basins), and all culverts, constructed channels, ditches or other conveyances associated with such ponds, where: (a) the ponds are located in an area where annual evapor ation exceeds precipitation; and (b) the ponds are designed to achieve zero discharge to surface water.” (p. 26)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features.

American Exploration & Mining Association (Doc. #13616)

7.103 The Waste Treatment Exclusion is Unclear.

The agencies state that they do not propose any changes to the exclusion for waste treatment systems, but the applicability of this exclusion has b een anything but clear and agency interpretation of the scope of the exclusion has changed over time. Reliance on the waste treatment exclusion is critical for AEMA members. The Agencies also should clarify, either in the preamble or the regulatory text, t hat the term “treatment” for purposes of the waste treatment system exclusion includes, but is not limited to, methods such as wastewater and stormwater retention, concentration (evaporation), settling, and

40 In suggested amendments to existing Proposal language, added text is underlined and deleted text is struck through.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

79 active and passive treatments to remove or reduce contaminants. Mining companies uniformly rely on these forms of treatment to support their operations and ensure that, if there are any downstream discharges, they meet all applicable NPDES permitting requirements. Waste treatment does not necessarily req uire the addition of chemicals or the use of complex technologies like ion exchange or reverse osmosis. Natural processes such as evaporation or pollutant uptake by aquatic vegetation can effectively help solids settle out and even remove pollutants. Colle cting and retaining wastewater and

stormwater runoff in on

- site water management features is a widely used form of waste treatment in many industries, including mining.

The Agencies should explicitly recognize, as they have in prior practice that ditches, feeder streams, and other on

- site waters carrying flow to and from ponds and impoundments used to treat wastewater and stormwater are part and parcel of waste treatment systems at mine sites. Such flowing waters are necessary to convey wastewater

and storm water within the mine site, and they help sediment and other pollutants settle out before any water is released to downstream waters of the United States. Water that is conveyed from the mine site to downstream jurisdictional waters requires an NPDES permi t and, not surprisingly, NPDES permitting authorities have typically agreed that it would be senseless to require additional permits above the point of discharge to downstream jurisdictional waters. Nevertheless, to avoid any potential confusion in the

fie ld concerning the scope of the waste treatment system exclusion, the Agencies should make it clear that the exclusion encompasses both ponds/impoundments and the related flowing waters within a mining project site that are necessary to convey waters to and from those ponds and impoundments.

The agencies should address which features and waters can be considered a waste treatment system. Moreover, the agencies should clarify that all on

- site management of water, including transport, storage, treatment, and u se, are non

- jurisdictional. Any discharges into waters of the U.S. that result from these activities are already covered under Section 402 of the Act. The agencies should engage with stakeholders that rely on

the waste treatment exclusion to understand the confusion and unpredictability that surrounds this exclusion. After having these critical stakeholder discussions, the agencies should propose a revised rule that addresses the waste treatment exclusion and provides some much needed clarity for regulators and the regulated public. (p. 8)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins and wastewater recycling and stormwater control features.

Wyoming Mining Association (Doc. #14460)

7.104 On

- site water management systems should remain non

- jurisdictional

On

- site water treatment and conveyance systems are an integral part of mining operations. These systems are used to manage water at mine sites in an environmentally sound manner and may even be statutorily mandated under other regulations such as the

Surfa ce Mining Control and Reclamation Act (SMCRA). Mining operations utilize a variety of ditches and conveyance systems, both temporary and permanent in nature, to manage stormwater runoff, provide water for production needs, store water, treat water,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

80 reuse w ater and keep water away from disturbed areas. Mining operations are dynamic and can be quite expansive, requiring that these systems be used throughout the mine and may need to be frequently relocated. For water treatment, mines also use a number of impou ndment and treatment systems which may include settling ponds, heap leach ponds, tailings ponds and slurry impoundments. These systems have traditionally been

considered non

-

jurisdictional and should remain as such.

Under the proposed rule it is not clear that these on

- site water management systems will

remain non

-

jurisdictional. As such WMA is concerned that inclusion of these treatment and conveyance systems will significantly impact mining operations. If the rule is not clarified, the unintended conseque nce will be that many of these traditional, effective treatment systems will no longer be available to the mining industry. Moreover, the mining industry requests a clear statement in the rule that these mine site water

management systems are non

- jurisdict ional.

If the onsite treatment systems are considered jurisdictional, mines will face additional permitting requirements related to these treatment systems. Mines will no longer be able to relocate the systems as needed without additional permitting requir ements and associated delays. System maintenance and clean

- out may be delayed or stopped because of the jurisdictional status and the inability to impact the system without triggering possible mitigation requirements. These onsite treatment systems must re main non

jurisdictional if they are to remain effective treatment systems.

Many of these onsite treatment systems are designed to ensure that if there are any surface discharges from a mine site into downstream navigable waters, those discharges

are covere d under an NPDES permit. As such possible, violations of the applicable water quality standards are covered through NPDES regulations. Often times these treatment systems are designed to be zero discharge, further safeguarding that there are no

environment al impacts. The need to include these as jurisdictional waters is unwarranted because the discharges from these systems are already regulated through other CWA regulations. (p. 2

- 3)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, a nd 7.4.4 regarding exclusion s for certain settling basins and wastewater recycling and stormwater control features.

American Petroleum Institute (Doc. #15115)

7.105 The exclusion for waste treatment systems is incomplete

The 2014 Proposed Rule provides that “Was te treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act” are not jurisdictional. 41 The meaning and scope of this exclusion is unclear. Does the exclusion require that the facility owner have an NP DES permit? Would interconnecting waters among these waters also be exempted? If a holding pond receives cooling water after it has passed through the facility, is that pond exempted, as it is treating water for temperature to meet CWA Section 316(a)? Are temporary and/or permanent basins

41 2014 Proposed Rule , 79 Fed. Reg. at 22,272.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

81 designed to meet storm water best management practice provisions exempted? The exclusion should extend to all waters designed and/or operated to meet any provision of the Clean Water Act, whether or not the facility is cur rently an NPDES permittee. The exclusion should extend to all excavated or installed ditches or conduits conveying water to and from these bodies. Inflow of surface runoff should in no way alter the exclusion. There should be no ambiguity based on the purp ose or use of the pond or basin.

Moreover, the exemption should also extend to waste treatment systems that meet the requirements of other environmental statutes, such as the Resource Conservation and Recovery Act, as well as to raw water storage ponds, pr ocess water holding ponds, fire water storage ponds, and other industrial water systems necessary for the facility but not designed to meet any particular environmental statutes.

The 2014 Proposed Rule also provides that the exclusion for waste treatment s ystems “applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal areas in wetlands) nor resulted from the impoundment of waters of the United States.” 42 But then, in a footnote to that ve ry sentence, the agencies explain that in 1980 the agencies suspended that sentence, and further explain that the suspension of that sentence continues unaffected by the 2014 Proposed Rule. 43 This footnote is unnecessary. The Proposed Rule exempts waste

tre atment systems designed to meet the requirements of the Clean Water Act, “notwithstanding whether they meet the terms of [a water of the U.S.].” This clear exemption is sufficient to cover all cases, including waste treatment systems previously created by impounding waters of the U.S. The footnote should therefore be deleted. The agencies should make the proper change to the regulatory text rather than further continue their makeshift patch from decades ago. (p. 30

- 31)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4

.

Sinclair Oil Corporation (Doc. #15142)

7.106 Waste Treatment Exemption

The evaporation ponds and other components of the waste water treatment system have never been considered "waters of the United States"; however, the fact that these features may have been considered impoundments, tributaries, adjacent waters, or other waters, as they could be under the proposed rule, would not have been a major concern to Sinclair. Under the existing definition of "waters of the United States," all of these surface features were exempt from the definition of water s of the United State s because they were part

of the refineries' RCRA

- permitted waste water treatment systems. See e.g. 33 C.F.R. 328 .3(a)(8 ). Sinclair is conc erned that the proposed rule would support an argument that the waste treatment system exemption is no longer applicable.

Despite the Agencies' assurances that the proposed rule does not substantively alter the waste treatment system exemption and that the changes being made are ministerial, the

42 Id . at 22,213.

43 Id . at 22,313 n.1.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

82 Agencies have substantively narrowed the scope of the waste treatment system exemption. The existing exemption provides that "[w]aste treatment systems, including treatment ponds and lagoons designed to meet the req uirements of CWA (other than cooling ponds as defined in 40 CFR 423 .11(111) which also meet the criteria of this definition) are not waters of the United States." 33 C.F.R. 328.3(a)(8). This exempts all waste treatment systems, regardless of whether they are designed to meet the requirements of the CWA.

By contrast, the proposed rule, in addition to deleting the obsolete reference to 40 C.F.R. § 423 .11(m), adds a comma before the word "designed." See 79 Fed. Reg. 22,263. The exemption in the proposed rule exempts from the definition of "waters of the United States" "waste treatment systems, including ponds and lagoons, designed to meet the requirements of the Clean Water Act." Id . Under this configuration of the exemption, only waste treatment systems desi gned to meet the requirements of the CWA are exempt. Since the waste water treatment systems at Sinclair's refineries are permitted under RCRA, not the CWA, the exemption may no longer apply to the evaporation ponds and other surface features that comprise those waste water treatment systems. 44 T hi s apparently unintended result will have major implications for Sinclair and others in the regulated community and should be corrected. The Agencies should take the opportunity to clarify that, as with the existing rule, the waste treatment exemption applies to all waste treatment systems regardless of the statute under which they are permitted.

As the above analyses show, the evaporation ponds and other components of the waste water treatment systems at Sinclair's refineries could be considered "waters of the United States" as impoundments, tributaries, adjacent waters, or other waters under the proposed rule despite the fact that these features do not have a significant nexus to a "water of the

United States" and h ave never been considered jurisdictional in the past. More troubling is the fact that, under the proposed rule, Sinclair would have to disprove the elements of each of these categories of waters cumulatively, in order to re

- establish that the waters

are no n

- jurisdictional. Until it could do so and obtain a case

- specific determination that the evaporation ponds are not "other waters," Sinclair risks being accused of violating the CWA by operating its RCRA

- permitted waste water treatment facility. This scenar io fails to provide the clarity, efficiency or regulatory certainty that the Agencies insist is the intent behind the proposed rule. (p. 17

- 18)

Agency Response: See summary response at 7.1

.

7.107 If, instead, the Agencies insist on promulgating the proposed rule, at a minimum t he following revisions should be incorporated into the final rule:

...

 Remove the comma added before "designed" in the waste treatment system exemption and clarify that the exemption applies to all permitted waste treatment systems, regardless of whether the y are permitted under the CWA. (p. 19)

Agency Response: See summary response at 7.1

.

44 Sinclair maintains that, even under the proposed language, the waste treatment systems should be considered exempt because they are designed to prevent any discharge to a "water of the Unite d States."Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

83 Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.108 The Agencies Should Clarify Existing Exemptions to Prevent Unwarranted Claims

of Jurisdiction

Agency staff ha ve emphasized that they are not revising existing exemptions, and that it is their intent, with minor exception, to continue those exemptions in any final rule exactly as they exist today. Due to the expansive nature of the Proposal, and the fact that

thos e exemptions were adopted many decades ago, they may no longer exempt all the waters that should be exempt from jurisdiction. Accordingly, EPA should revise and/or clarify the exemptions as discussed below. 45

Waste Treatment Exemption

The preamble for the p roposal indicates that the Agencies do not intend to change the waste treatment system exemption under the current regulations (79 Fed. Reg. at 22,189). The proposal, however, made three changes to this exemption, two of which were helpful

and one of which was not. Since this exemption is extremely important for our facilities, we are suggesting a few additional changes or clarifications that will improve the functioning of the exemption.

The proposal also adds new language to clarify the exemption applies even if the water subject to the exemption would otherwise qualify as a WOTUS. This new language is very helpful.

Domtar is suggesting the following changes/clarification for the Wastewater Treatment Exemption.

 Suspended Language Maintained in the Federal Register

The pre

- publication version of the proposal removed the requirement that the waste treatment system be a man

- made body of water and not have been created in an area that previously was a water of the U.S. Removal of that requirement from the rule was appropriate as the requirement has been suspended since July 1980, as is indicated in the Federal Register version of the rule. Unfortunately, when the Federal Register version was printed, that provision was not removed, but the language indicating th e requirement was suspended was retained. The Agencies should make sure that any final rule removes that language, which apparently was the original intent. The proposal also removes the provision that carved out from the exemption certain cooling ponds. T his is a good clarification and should be retained in any final rule. Both of these changes would make the waste treatment system exemption clearer and reduce confusion.

 Removal of a Comma

Unfortunately, the Agencies made one other change to the regulation , which appears to have been unintentional. The proposed rule excludes from “waters of the U.S”: “Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.” With the addition of a comma after t he word

45 In any event, EPA should retain the “notwithstanding” language that makes clear that waters qualifying for an exemption do not lose the exemption because they also meet the requirements of a WOTUS.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

84 “lagoons,” the proposal arguably limits the exemption to waste treatment systems designed to meet the requirements of the Act, whereas the current regulations arguably only apply the “designed to meet the requirements of CWA” criterion to treatment ponds or lagoons. With the addition of this comma, the proposed rule changes the existing exemption unchanged, and EPA has not provided a rationale for making the change. The comma needs to be removed in any final rule.

 “Designed to Meet”

Due to limiting language in the existing exemption, facilities that created their waste treatment systems before the adoption of the CWA arguably are vulnerable to potential challenges to the applicability of the exemption. These facilities have operated under NPDES permi ts since the 1970’s, and their permits have been continually updated to include stricter provisions over time. There is no reason to question the status of the exemption for these systems. The rationale for the exemption

— that waste treatment

systems are re gulated through the NPDES program, and that imposing requirements intended to protect surface waters from discharges makes no sense when applied to “waters” that are wastewaters and are being treated to make them suitable for discharge

to surface waters

— ap plies equally to waste treatment systems that were constructed before 1972. The agencies should clarify that facility systems constructed before the CWA was adopted but are used to meet CWA requirements are still covered by the exemption.

EPA also needs to clarify in the preamble that zero discharge and/or land application systems fall within the exemption. For example, wet woodyard ponds used to implement a zero discharge requirement are implementing EPA effluent guidelines for the Timber

Products source c ategory and clearly are designed to meet the requirements of the CWA. On the other hand, land application systems used to meet a zero discharge effluent guidelines or to avoid an unpermitted discharge involve storage or pretreatment ponds as

well as acres of sprayfields that may develop some wet areas over time or may collect run off to maintain zero discharge, may be subject only to permits under state law and may not be regulated under the NPDES program. Even though no federal NPDES permit is involved, th ese systems clearly are designed to meet the requirements of the CWA’s provision of no discharge of process wastewater to WOTUS and they should be recognized as such in the Preamble to any final rule. ( p. 9

- 11)

Agency Response: See summary response at 7.1

. See also summary response at
7.4.2 regarding the agencies’ creation of an exclusion for certain wastewater recycling features.

Alpha Natural Resources, Inc. (Doc. #15624)

7.109 The Agencies Should Clarify that Impoundments Serving as Waste Treatment Systems are Non

- Jurisdictio nal

The preamble acknowledges that “ponds and lagoons” can serve as waste treatment systems to meet the requirements of the Clean Water Act, and are therefore not jurisdictional waters. Id . at 22,263. The preamble should

— but does not

— explain the

difference between lagoons and impoundments, or explain whether the proposed per seClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

85 regulation of tributaries of impoundments applies even when the impoundment is serving

as a waste treatment system.

Additionally, the agencies should make clear that while SMCRA perm its are in place, all ponds that are used to control and treat mine drainage

— and all natural and man

- made ditches and streams carrying flow into those ponds

— are non

- jurisdictional waste treatment systems. (p. 9)

Agency Response: See summary response at 7.1

. See also summar y response at
7.4.2 regarding the agencies’ creation of an exclusion for certain wastewater recycling features.

Dominion Resources Services, Inc. (Doc. #16338)

7.110 The agencies state in the preamble to the proposed rule that they do not propose any changes to the exclusion for waste treatment systems (33 CFR 328.3(b)(1)) and are not soliciting comments on the provision. However, the agencies have added a comma after the word “lagoons” that could substantively change the scope of the exemption. We support the U tility Water Act Group (UWAG) comments on the history, scope and coverage of the waste treatment exemption and the punctuation change in the proposed rule. We request that the comma be removed. (p. 10)

Agency Response: See summary response at 7.1

.

Barrick Gold of North America (Doc. #16914)

7.111 The proposed rule would exclude “[w]aste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.” This language is

similar to language in the existing regulation, and the agen cies disclaim any intent to

make substantive changes in it. 46 However, perhaps unintentionally, the proposed exclusion is substantively different than current law because of the placement of a new

comma in the text after the word “lagoons.” The existing exc lusion reads as follows: “Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of [the Clean Water Act].” 40 C.F.R. § 122.2 (2013). The existing rule excludes all waste treatment systems, including those designed to meet the requirements of the Clean Water Act. Because of the added comma, the proposed exclusion would apply only to those waste treatment systems specifically designed to meet the requirements of the Clean Water Act.

As explained above, many of Barrick ’s water management ponds are designed to meet the requirements of the Clean Water Act and should fall within the exclusion. See supra Section I.b. However, infiltration basins and sedimentation ponds do not automatically meet the terms of the proposed exc lusion; in the case of infiltration basins, they are designed to place water in or return water to the ground, an activity to which the Clean Water Act does not apply. Sedimentation ponds may discharge as part of storm water

46 In the preamble, the agencies describe proposed changes to the waste treatment system exclusion as “ministerial”

and “non

- substantive” and say explicitly: “The agencies do not propose to address the substance of the waste treatment system exclusion ....” 79 Fed. Reg. at 22,217.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

86 management, but in some cases t hey also are designed to allow water to infiltrate into the ground. Id

. Consistent with the agencies’ intentions as stated in the preamble, and as reiterated in meetings with stakeholders, the proposed waste treatment exclusion should be revised to

remove the comma after the word “lagoons.” (p. 27

- 28)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins and wastewater recycling and stormwater control features.

Barrick requests th at the agencies amend the waste treatment systems exemption to remove the comma after the word “lagoons,” and clarify in the preamble to any final rule that the exclusion is intended to apply to ponds used in the mining industry to manage waste water, whet her to prevent discharges of waste water to “waters of the United States” or to treat waste water before discharge pursuant to NPDES or storm water permits. See proposed text at 79 Fed. Reg. at 22,262

– 73. Barrick also requests that EPA remove from its pr oposed rule language the second sentence of the exclusion and its accompany footnote. The text reads: “This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal areas in we tlands) nor resulted from the impoundment of waters of the United States.” As explained in the footnote, a version of which also appears in the currently applicable rule, EPA suspended this sentence in a July 21, 1980 Federal Register notice. The suspensio n has been in place for over 30 years. Since EPA does not propose to modify or revoke the suspension, removing the sentence and footnote would simplify the exemption and add clarity to its applicability.

With regard to the exemption for “artificial lakes o r ponds,” Barrick proposes the following modifications to make clear that the exemption applies to ponds and basins used at precious metals mining operations:

(5)(ii) Artificial lakes or ponds created by excavating and/or diking dry land and

used exclusive ly for such purposes as process water management, storm water management, infiltration, stock watering, irrigation, settling basins, or rice growing.

(p. 28

- 29)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding ex clusion s for certain settling basins and wastewater recycling and stormwater control features.

Halliburton Energy Services, Inc. (Doc. #19458)

7.112 If the Agencies proceed to adopt the rule in its current form, HESI requests a

clarification. HESI affiliates cre ate diversions and sediment traps as part of necessary Best Management Practices for stormwater management in mining operational areas. These features are effectively a wastewater treatment system and should be treated as

such and therefore fall within the existing exclusion from the definition of waters of the United States. Because there is so much room for interpretation throughout the proposedClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

87 rule, HESI seeks clarification or confirmation that the proposed rule is not intended to impose CWA jurisdictio n on these necessary stormwater management structures. (p. 11)

Agency Response: See summary response at 7.1

. See also summary responses at
7.3.2 and 7.4.4 regarding exclusion s for certain settling basins and stormwater
control features.

Alameda County Cattlewomen (Doc. #8674)

7.113 The proposed rule excludes waste treatment systems from “waters of the U.S.” (Proposed Rule at 22193). Cattle producers across the country utilize waste treatment systems as part of the Sec. 402 NPDES regulations for Concentrated Animal Feeding Oper ations (CAFOs). Most CAFOs utilize man

- made earthen retention structures that are designed to retain the necessary quantity of water to meet the required effluent guidelines, but a small percentage were originally permitted to utilize naturally existing t opographic impoundments or structures (such as playas) to retain wastewater. These impoundments or structures have been used by some CAFOs for this purpose since prior to the CWA’s inception. For clarity and consistency purposes, ACCW request the agencies remove language that has been stayed since 1980 that would remove natural features from inclusion in the waste treatment system exclusion only for Sec. 402. We also request that the agencies include a statement that further clarifies currently authorized f acilities utilizing these features qualify for the exclusion.

ACCW generally support the agencies’ decision to maintain this exclusion. However, the exclusion under Sec. 402 includes the language “[t]his exclusion applies only to

manmade bodies of water wh ich neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States.” (Proposed Rule at 22268). While this language has been suspended since 1980, ACCW requ est that it be permanently deleted from the regulation. It has

resulted in confusion.

Removing this language from the definition is a logical change considering the agencies’ stated intent to provide clarity and consistency. In the other sections of the CW A the Waste Treatment System exclusion does not include this additional language limiting it to manmade features. And considering it has been stayed or suspended for so long, it would just be common sense to get rid of language that has no effect. Doing so would leave a definition that is consistent throughout the CWA. And, given that the provision has been stayed for 34 years, decisions too numerous count have been made by EPA, the Corps, other federal agencies, state agencies and businesses across the U.S

. – decisions that were made in compliance with the CWA, under the understanding that the provision for waste treatment systems was not limited to manmade features. While the agencies did not seek comment on this regulatory language because it was not a ch ange to the definition, ACCW see this as an opportunity for the agencies to provide some clarity and certainty to the cattle industry and other industries that have made decisions based on this understanding.

Additionally, ACCW request the agencies include in the definition for “waste treatment systems” exclusion the following statement, “For purposes of this exclusion, existing facilities that have been authorized to operate under the CWA are deemed to meet theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

88 requirements of the Act.” This statement woul d relieve confusion for facilities that have been authorized and operating on these isolated water features for more than four

decades.

A number of facilities were constructed and placed into operation prior to adoption of the CWA, and as stated above, a n umber of decisions had been made by a variety of agencies and businesses in accordance with the stayed provision on waste treatment systems. At the same time, the cattle industry has worked to comply with permit provisions adopted by EPA over the past deca de, especially as it relates to Concentrated Animal Feeding Operations (CAFOs). One such requirement has focused on a CAFO’s ability to retain

rainfall runoff from a 25

- year, 24

- hour storm event. For the most part, these site

- specific

rainfall and retentio n capacity evaluations have been conducted by USDA

- NRCS engineers or licensed professional engineers working as consultants for CAFO owners/operators. The resulting, documented engineering analysis forms the basis for the CAFO’s ability to meet the require ments for CAFO permit/CWA requirements for either manmade or natural impoundments.

To provide additional clarity regarding the word “designed,” ACCW would suggest the following definition for “designed”: “For purposes of this section, designed to meet the requirements of the act can be satisfied through a documented engineering analysis showing the waste treatment system’s capability to meet or exceed the requirements of a 402 NPDES permit.”

ACCW believe these suggested changes to the Waste Treatment System Exclusion would alleviate long

- standing confusion, would provide the regulatory certainty needed by currently authorized facilities, and are in line with the agencies’ intent to provide clarity to the regulated community. (p. 25

- 27)

Agency Response: See summary response a t 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features.

North American Meat Association and American Meat Institute (Doc. #13071)

7.114 The applicability of the waste treatment system ex clusion historically has been obtuse. There has not been consistent application or understanding of what the agencies consider a “waste treatment system.” This uncertainty has led to inconsistent application in the field. Although the proposed rule properl y retains the exclusion for waste treatment systems it fails to provide needed clarity regarding the applicability of the exclusion. Specifically, the proposed exclusion would apply to waste treatment systems, including treatment ponds or lagoons, designed to meet the Clean Water Act. 47

Unclear is whether the exclusion would include multiple

- use impoundments. Industrial facility impoundments are often utilized for treatment (e.g., settling out any contaminants in storm water, neutralization, etc.) and also f or other beneficial purposes (e.g., water supply for dust suppression, firefighting, irrigation, etc.). Unknown is whether the exclusion applies if the predominant use is not for treatment, i.e., where discharges of

47 79 Fed. Reg. at 22,263

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

89 treated water rarely or never occur. Sim ilarly, the proposed rule does not indicate whether the exclusion applies if a system was designed to meet CWA requirements but subsequently converted to other uses when discharges were eliminated or handled through alternative means (e.g., by connection t o a Publicly Owned Treatment Works). Likewise, the proposed rule does not address whether a system must be permitted under the NPDES program or otherwise subject to CWA regulations to be excluded.

The proposed rule also would add a comma to the regulatory text, which arguably could change the meaning of the exclusion. Currently, the phrase “designed to meet the requirements of the CWA” modifies the examples of “treatment ponds or lagoons.” 48 The proposed rule would add a comma after “treatment ponds and lago ons,” narrowing the exclusion by requiring all “waste treatment systems,” not just “treatment ponds or lagoons,” be “designed to meet the requirements of the CWA” to qualify for the exclusion. This change could mean that features constructed for waste trea tment prior to the CWA’s enactment in 1972 do not qualify for the waste treatment exclusion. Adding the comma might be interpreted as a substantive change with significant implications for many existing waste treatment systems. The agencies should keep the language as is and remove the new comma from the proposed regulatory text.

The proposed rule also would retain in the regulations (1) the sentence proclaiming that the waste treatment exclusion “applies only to manmade bodies of water which neither

were o riginally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States,” and (2) the accompanying footnote explaining that EPA sus pended that sentence in 1980. 49 Retaining

the su spended language piles added confusion on to an already confusing exclusion. Rather, the suspended sentence and accompanying footnote from 40 CFR 122.2 should be deleted. (p. 8

- 9)

Agency Response: See summary response at 7.1 . See also summary response s at
7.3.2 and 7.4.4

.

Minnesota Agricultural Water Resource Center (Doc. #14284)

7.115 In agricultural settings, we recommend that the agencies treat wetlands and all ditches and all subsurface drainage systems as part of a treatment system, designed to meet the broad goals of the CW A. (p. 2)

Agency Response: See summary response at 7.1

.

Irvine Ranch Water District (Doc. #14774)

7.116 The Waste Treatment Exemption Should Specifically Be Amended to Include Constructed Water Quality Treatment Wetlands.

...constructed treatment wetlands are designed to treat ur ban runoff and remove pollutants before they enter jurisdictional waters. IRWD has worked with local partners to protect its watershed by using natural vegetation to remove nutrients and other

48 33 CFR 328.3(a).

49 79 Fed. Reg. at 22,268. 40 CFR 122.2Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

90 contaminants, and such facilities result in cleaner water enter ing WOTUS. Constructed treatment wetland ponds are currently non

- jurisdictional, but are often located in floodplains and adjacent to WOTUS. Under the proposed rule, the ponds themselves would likely become jurisdictional. Over regulation and inclusion of these types of facilities in the proposed rule will discourage the use of these water quality treatment methods, which currently provide multiple benefits to the environment, and receiving

waters and watersheds.

The waste treatment exemption in Subsection (b)(l) should be amended to exempt constructed treatment wetlands, manmade water quality wetlands, bioswales, detention basins, settling ponds, and similar treatment facilities designed to manage pollutants in a watershed. The exemption should also make cl ear that lands, which are non

- irrigated except by a system of constructed wetlands designed to remove pollutants, and waste treatment plant buffer property are exempt from the proposed rule. We also request that the phrase "meeting the requirements of the CWA" be removed from the waste treatment systems exemption. "Meeting the requirement of the CWA" is too broad and undefined, and may not capture constructed treatment wetlands which benefit receiving waters by removing some, but not necessarily all polluta nt constituencies...(p. 2)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features.

7.117 The Waste Treatment Exemption Should Specifically Include Water Recycling Facilities and Storage.

IRWO notes that the proposed rule is meant to retain much of the structure of the Agencies' longstanding definition of WOTUS, and that the Agencies propose no change to the exclusion of waste treatment systems designed consistent wi th the requirement of the CWA. The District also appreciates that waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the CWA, are exempt under the proposed rule and can never be considered "waters of the U.S ." regardless of the other sections of the regulation. These exemptions comprise an essential component of the existing regulatory framework, and should be maintained.

While the proposed rule provides some specific exemptions, it does not provide great clarity on what other waste treatment facilities will be deemed to be exempted from the CWA under the waste treatment system exemption. This lack of clarity in the proposed rule removes any certainty that the proposed rule hopes to give waste treatment sys tem operators through this exemption. In fact, the uncertainty will create regulatory barriers to the implementation of new waste treatment systems and facilities. Without clarification, the proposed rule will expand the scope of CWA jurisdictional waters and interfere with aspects of waste treatment processes and greater water recycling.

Recycled water is a drought

- proof water supply that does not rely on uncertain hydrologic conditions associated with climate change. It is a vital part of the California's water supply portfolio, and water providers are aggressively working to expand recycled water within the state. At IRWD, we meet roughly 29,850 acre

- feet, or 25 percent, of our service area's water demands with recycled water through a 500

- mile recycled w ater distribution system. We have more than 5,000 recycled water customers and provideClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

91 recycled water to homeowner's associations, golf courses, agricultural sites, industrial applications, and to nearly 60 dual

- plumb buildings.

Greater recycled water use reduces potable water demand, reducing pressure on the other water resources. Furthermore, if recycled water is not put to use, the water must either be stored in limited recycled water storage facilities, or be discharged and not put to

beneficial use. Re cycled water storage allows recycled water purveyors to serve a greater amount of recycled water to approved uses by allowing them to adjust to seasonal demand changes. It is an essential component of a recycled water purveyor's waste treatment system. The proposed rule should affirm the importance of recycled water in the nation's water supply and affirm that recycled water storage is within the scope of the water treatment exemption.

Towards this end the waste treatment exemption should expressly include water recycling facilities and storage ponds. We request that the language in Subsection (b) (1) be modified to read as follows:

"Waste treatment systems, including treatment ponds, lagoons, manmade water quality wetlands, bioswales, detention basins, sett ling ponds, lands which are non

irrigated except by a system of constructed wetlands designed to remove pollutants, waste treatment plant buffer property, water recycling facilities and storage ponds, and similar treatment facilities designed to improve wa ter quality or provide environmental benefits to a watershed, are not considered waters of the U.S or adjacent waters."

As suggested by the California Association of Sanitation Agencies, "[i]n the alternative, recycled water facilities and features (includ ing storage ponds, basins, artificially created wetlands, recycled water reservoirs and other features associated with water recycling) should be expressly exempted as part of the specifically identified features that are not

considered waters of the U.S. within the proposed rule. In this case, recycled water facilities would be treated similar to artificial lakes, ponds, swimming pools, ornamental waters, and groundwater, which are specifically identified and exempted." The same sort of exemption should be provided for water banking facilities.

Additionally, similar to agricultural return water exemptions, the discharge of water from a waste treatment system as described above should not be considered a point source that is regulated under other sections of the CWA. (p. 2

- 4)

Agency Response: See summary response at 7.1 . See also summary response s at
7.4.2 and 7.4.4 regarding ex clusion s for certain wastewater recycling and

stormwater features.

Georgia Paper & Forest Products Association (Doc. #14924)

7.118 EPA should maintain its l ongstanding wastewater treatment system exemption in the rule. In the proposed rule, modified grammar and new language that it must "be designed to meet CWA", has clouded this exemption. EPA should clarify in the rule that this exemption applies to all was tewater treatment systems, including all their components and management features that are used to meet CWA requirements, even if the system's use for wastewater treatment predates the CWA as many industrial treatment systems do. The exemption also should clearly state that it includes storm water management featuresClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

92 at a facility including, but not limited to, ditches and swales, retention and detention ponds, and any other control structures as well as the outfall structures. All of these

features are int ended to minimize storm water impacts on water quality regardless of whether the storm water system is covered by Federal or State jurisdiction. The exemption also should clearly state that treatment systems that are State

- permitted but may not be NPDES pe rmitted are included in the exemption. This would include systems such as land application systems which may have features like wastewater storage ponds or collection systems that may accumulate water to prevent flow off site. The wastewater

treatment exem ption should make it clear that none of these systems or any of their components would be included as being a jurisdictional water. EPA has said it does not intend to bring types of water that have not been regulated before into jurisdiction. The rule lang uage should make that intent explicit. (p. 2

- 3)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.4 regarding exclusion s for certain wastewater recycling and

stormwater control features.

Missouri Soybean Association (Doc. #14986)

7.119 Ext remely narrow exemptions

- The rule also overreaches by narrowing the intent of the exemptions to the point that we are unsure how they would ever apply, rendering them nearly useless in the real world. The exemptions should apply broadly, without exceptio ns or strings attached to them. Below is an example of some areas w h ere the exemption should be clarified and/or

broadened.

a) (t)(l)

- Many waste and water treatment and control systems are not designed (or otherwise not constructed) to meet CWA requirements . Thus, the rule overreaches and brings into jurisdiction features that were constructed for treatment or control purposes but not for a regulatory requirement ... (p. 7)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins and wastewater recycling and stormwater control features.

North Carolina Farm Bureau Federation (Doc. #15078)

7.120 The exclusion for "[w]aste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" is a necessary exclusion. We support this exclusion with the understanding that waste treatment systems, including treatment ponds or lagoons designed to meet other federal, state and local laws and rules

to p rotect water quality are also considered as being designed to meet the requirements of the Clean Water Act and are considered exempt as such. This was so stated by EPA representatives at the September 30, 2014 meeting in North Carolina. (p. 15

- 16)

Agency Response: See summ ary response at 7.1

.

Packaging Corporation of America (Doc. #15515)

7.121 A. Wastewater Treatment ExemptionClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

93 The preamble in the Proposal indicates that the Agencies do not intend to change the waste treatment system exemption under the current regulations (79 F ed. Reg. at 22,189).

Changes or Clarifications Needed Regarding the Exemption

i. "Designed to Meet"

Due to limiting language in the existing exemption, certain facilities, including some member mills, that created their waste treatment systems before the adoption of the CWA, arguably are vulnerable to potential challenges to the applicability of the exemption. These facilities have operated under NPDES permits since the 1970's, and their permits have been continually updated to include stricter provisions over time. There is no reason to question the status of the exemption for those systems. The rationale for the exemption

- s

- that waste treatment systems are regulated through the NPDES program, and that imposing requirements intended to protect surface wate rs from discharges make no sense when applied to "waters" that are treating wastewater to make it suitable for discharge to surface waters

- applies equally to waste treatment systems constructed before 1972. The Agencies should clarify that facility systems constructed before the CWA were adopted but used to meet CWA requirements are still covered by the exemption.

Similarly, EPA should clarify in the Proposed Rule that land application and beneficial use systems fall within the exemption. For example, land application systems used to meet a zero discharge effluent guideline involve storage or pretreatment ponds as well as acres of spray fields that may develop some wet areas over time or may collect run off to maintain zero discharge, may be subject only to permits under state law and may not be regulated under the NPDES program. Even though no federal NPDES permit is involved, these systems clearly are designed to meet the requirements of the CWA's provision of no discharge of process wastewater pollutants t o WOTUS, and they should be recognized as such in the Preamble to any final rule. (p. 4)

Agency Response: S ee summary response at 7.1

. See also summary response at
7.4.2 regarding the agencies’ creation of an exclusion for certain wastewater recycling features.

Association of American Railroads (Doc. #15018.1)

7.122 C. Waste Treatment Exception

...AAR supports the Agencies’ continued application of the waste treatment exception to the definition of Waters of the United States. Because the Agencies have proposed to expand CWA jurisd iction, additional clarification is necessary to ensure that features that are excluded under the waste treatment exception will continue to be acknowledged. The need for clarification is underscored by the recent decision purporting to vacate EPA’s

water transfer rule which had exempted certain conduits and conveyances from CWA jurisdiction. Catskill Mountains Chapter of Trout Unlimited Inc., et al. v. EPA

consolidated case Nos. 08

- cv

- 0560 and 08

- cv

- 9430 (S.D.N.Y., March 28, 2014). Clarification is appropr iate in this rulemaking as the agencies have made “ministerial” changes to the exemption by removing an unneeded reference to cooling ponds and the

addition of a comma.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

94 ... 2. Waste Water Treatment Systems Should not be Limited to Those “Designed to

Meet the Requirements of the CWA”

Because not all waste water treatment systems are subject to the CWA, the waste treatment exception should not be limited to those “designed to meet the requirements of

the CWA.”

As the Agencies are aware, EPA requires CWA NPDES p ermits for only certain categories of storm water discharges.20 EPA always has residual authority to require a CWA NPDES permit for facilities or categories not within the prescribed categories upon a determination that a discharge contributes to a violati on of a water quality standard or is a significant contributor of pollutants to waters of the United States. 40 C.F.R. § 122.26(a)(v). There are thousands of waste treatment systems, and in particular storm water management systems, which meet the criteria for the waste treatment exception but

are not req uired to obtain NPDES permits. 50 Examples include storm water systems outside of designated MS4s, parts of industrial facilities not specifically identified in 40 C.F.R. Part 122, roadway drainage systems, r ailroad ditches and storm water

management systems.

Because thousands of waste treatment systems, including storm water management, are not subject to CWA requirements, the Railroads recommend the Agencies remove the phrase “designed to meet the requiremen ts of the Clean Water Act.” (p. 13

- 14)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater

features.

County of San Diego, California (Doc. #14782)

7.123 Strengthen exemption for "waste treatment systems"

The existing exemption language for "waste treatment systems" must be strengthened. The Federal Register posting asserts that there will be no change to the exclusion for waste treatment systems. The rule should be expanded to spe cifically exempt facilities that are designed and installed to meet any water quality requirements, including individual state or local water quality regulatory requirements (for example, the Porter

Cologne Act in California). CFR Part 328.3 (7) states tha t waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA are not waters of the United States. Although the agencies specifically state that they are not seeking comment on this section, the County strongly ur ges the agencies to strengthen and expand this vaguely written exemption or otherwise explicitly exempt all water quality treatment facilities. Currently, the regulations ("a" and "b'' below) appear to only vaguely exempt "waste treatment systems" (which p resumably apply to permanent BMPs

50 See, e.g. , Hughey v. JMS, 78 F.3d 1523(11th Cir. 1996)(permit unavailable for construction stormwater discharges; “[p]ractically speaking, rain wate r will run downhill, and not even a law passed by the Congress of the United States can stop that.).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

95 such as: detention basins, retention basins, bioswales, etc.) that are designed to meet the requirements of the CWA:

a. Nationwide Permit (NWP) 43 has language that states: "Note that stormwater management facilities that are determined to be waste treatment systems under 33 CFR 328.3(a)(8) are not waters of the United States, and maintenance of these waste treatment systems generally does not require a section 404 permit."

b. Then 33 CFR 328.3(a)(8) states the following: " Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11 (m) which also meet the criteria of this definition) are not waters of the United States."

EXAMPLE: Regulators could potentially allow use of the above NWP 43 or the language in 33 CFR 328.3(a)(8) to exempt maintenance of water quality treatment systems from requiring section 401 and 404 permits. However, since NWPs are renewed every five years they are not guaranteed to be in existence. In addition, the language in 33 CFR 328.3(a)(8) is vague and does not specifically exempt water quality treatment so individual regulators may not apply this exemption uniformly to water quality treatment

facilities. The refore, the rule should be clarified to specifically exempt maintenance of these water quality treatment facilities. (p. 4

- 5)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.4 regarding the agencies’ creation of exclusion s for cer tain wastewater recycling and stormwater control features.

Arizona Public Service Company (Doc. #15162)

7.124 C. A Simple Comma Could Result in the Loss of Waste Treatment System Exemption

Waste treatment systems (WTS) at APS facilities include, but are not lim ited to, wastewater collection features (bins, basins, channels), wastewater treatment facilities (cooling ponds, ash ponds, coal pile runoff collection ponds, low volume waste ponds, storm water sedimentation ponds), as well as various wastewater and trea ted water conveyances such as pipes, channels, and conduits that convey treated or untreated water to and/or from WTS already mentioned. The proposed rule states that “waste treatment systems, including treatment ponds or lagoons, designed to meet the requ irements of the

Clean Water Act” will continue to be excluded from the definition of WOTUS. The Agencies do not solicit comment on this exclusion because they claim it has not changed from the current rule. While no change to the WTS exclusion may have bee n intended by the Agencies, the Agencies’ simple addition of a comma after “lagoon” in the WTS exemption will, unless addressed in the final rule, potentially subject WTS to NPDES permit requirements, which will result in substantial cost increases for the owners of these facilities. APS requests that the Agencies remove this comma from the text of the WTS exemption. (p. 11)

Agency Response: See summary response at 7.1

.

National Association of Clean Water Agencies (Doc. #15505)

7.125 Preservation and Clarification of Waste Treatment Exemption CriticalClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

96 The draft rule preserves and clearly articulates a regulatory exemption for waste treatment systems, which is absolutely necessary. NACWA’s longstanding position supports an interpretation of CWA jurisdiction that maintains a c lear articulation of the waste treatment exemption and we applaud the Agencies for maintaining the critical, existing exemption. Title 40, Section 122.2 of the U.S Code of Federal Regulations explicitly excludes manmade “waste treatment systems” from the d efinition of “waters of the United States.” This enables the proper functioning of publicly owned treatment works (POTWs). However, communities use a variety of approaches, ranging from green infrastructure (constructed wetlands, swales, etc.) and various components of municipal separate storm sewer systems (MS4s), to manage wet weather, which are not included in the exemption. NACWA does not suggest that the definition of POTW be expanded; however, explicit exemptions for these systems designed to meet CWA requirements need to be included in any final rule. In addition to waste treatment systems, the proposed rule exempts “treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act” in 40 CFR 230.3(t)(1). Inserting language into thi s provision to expand it to cover a broader array of wet weather management practices including those discussed above, would be a viable solution. (p. 2)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features.

Orange County Sanitation District, California (Doc. #16335.1)

7.126 The wastewater treatment process generates biosolids which is commonly applied to lands such as farmlands, drought stricken areas, fire damage d areas, green belts, recreational areas, and landfills. Under the broad criteria of this proposed rule, land application sites for biosolids can be subject to regulation. Such sites are already subject to regulation under 40 CFR 503, which addresses the s tandards for the beneficial use or disposal of sewage sludge. To mitigate conflicting regulation, the existing rule 40 CFR 503 should govern and therefore the waste treatment exemption should be broadened to include lands subject to 40 CFR 503 regulation. (p. 2)

Agency Response: See summary response at 7.1

.

7.127 As the proposed rule and existing practice acknowledge, waste treatment systems designed to meet the requirements of the Clean Water Act are not waters of the U.S., and OCSD wants to ensure that as part of these propose d amendments spreading grounds/basins, treatment ponds/lagoons, and constructed treatment wetlands used as part of the wastewater process are subject to the same exemption. Since these facilities are clearly part of the treatment process, providing additio nal treatment, residence and settling prior to discharge, these facilities should be expressly recognized in the rule as falling under the Waste Treatment Exception.

In addition, many water and wastewater agencies utilize spreading grounds or basins in

ord er to facilitate groundwater replenishment; a vital part of water management throughout California. Others utilize artificially created effluent storage ponds as part of their treatment process. Many agencies maintain reservoirs or storage basins/ponds to store recycled water. These artificially created features and spreading grounds have notClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

97 previously been defined or regulated as "waters of the United States," and should remain separate. For this reason, the proposed rule should expressly include treatmen t ponds/lagoons, spreading grounds/basins, and constructed treatment wetlands within the scope of the Waste Treatment Exception, along with effluent storage reservoirs and recycled water storage facilities discussed previously. (p. 4)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features and summary response at 7.4.4 . regarding groundwater recharge features

.

Duke Energy (Doc. #13029)

7.128 Waste Treatment System Exc lusion

Of specific concern to Duke Energy is that under the extremely broad language of the proposed rule, some onsite water management systems could classified as “waters of the United States.” Electrical generation sites commonly use many types of water management systems which include interconnected pipes, channels, basins, ponds and other features for collecting, storing and treating wastewater.

Duke Energy has extensive water management and treatment systems as part of the facility design and operation s at its generation sites. These systems vary by facility, but can include cooling ponds, discharge canals, ash ponds, industrial stormwater treatment ponds, settling basins, low volume waste ponds, coal pile runoff ponds, and other various collection pond s. These systems also include wastewater and treated water conveyances (such as pipes, channels and conduits) that convey untreated or treated wastewater to and from these features. In addition, Duke Energy maintains “constructed wetlands” at some

faciliti es that were built and designed for the treatment of wastewater. In some cases, Duke Energy also stores rain water or treated and/or partially treated industrial wastewater in ponds for eventual use within the facility. These storage and treatment

systems provide important environmental benefits by allowing recycling and reuse of alternative water supplies and also ensures the proper handling and treatment of wastewater produced during the process of generating electricity. This ensures that the water is pr operly treated before it leaves a facility and these types of programs are encouraged by the State.

Under the proposed rule, some of these storage and treatment systems could be considered “adjacent” or “neighboring” to other “waters of the United States”. The majority of these are internal water features that are already regulated at their points of discharge to external waters under the CWA. If such systems were considered to be “waters of the United States,” the regulatory consequences would be substanti al. The treatment systems would no longer be able to serve their essential purpose, which is to treat wastewater. For example, facilities could face an illogical situation in which an NPDES permit would be required for a discharge of wastewater into those treatment systems, and that permit would require compliance with all technology

- and water quality

- based limits before the water enters the treatment system. This would make these systems redundant and essentially useless for their intended purpose of cont rolling and treating waste streams requiring new expensive technologies to “treat” the waste stream before it entered the “waste treatment system” as originally designed. Additional CWAClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

98 program requirements could also come into play, such as Section 404 pe rmitting for routine maintenance of a waste treatment pond or it conveyances.

The proposed rule includes the following language for the waste treatment exclusion:

Waste treatment systems, including treatment ponds or lagoons, designed to meet the requireme nts of the Clean Water Act. 51

The agencies are not proposing any changes to the waste treatment exclusion, aside from

two ministerial actions. 52 However, they do not see these changes as substantive and are therefore not seeking any comment on it. 53 In a Questions and Answers document on the proposed rule, the agencies explain that “[t]he proposed rule would not change, in any way, existing application of the waste treatment exclusion.” 54 However, Duke Energy is concerned that the current language of the waste treatment system exclusion is not adequate to solve the problems created by the proposed rule’s revisions. As UWAG points out in their comments 55 on the proposed rule, seemingly minor changes to the exclusion wording over the years have resulted i n additional confusion and application of

the waste treatment exclusion has been inconsistent.

One area that needs clarity is how the agencies define “designed to meet the requirements of the Clean Water Act.” While it seems fairly straightforward, questio ns arise concerning the historical existence of many of these waste treatment systems prior to the enactment of the CWA. Does the exclusion apply to waste treatment systems that were designed and built pursuant to other statutes beside the CWA? For example , some waste treatment systems at Duke Energy’s sites do not have point source discharges, but instead discharge to groundwater. These waste treatment systems typically are not covered by NPDES permits, but are regulated under state permitting programs suc h as Florida’s rigorous licensing program governing discharges to groundwater. Under Florida law these treatment systems must meet state groundwater standards, which include a provision protective of downgradient surface waters. 56 These systems have never b een classified as “waters of the United States”, but are clearly regulated and protective of the environment. However, it is not clear from the proposed rule’s regulatory language if the waste treatment exclusion would be applicable, contrary to the agenci es’ assertions. Duke Energy recommends that the waste treatment exclusion include any and all types of treatment or water management systems regulated under State provisions.

The agencies also need to clarify that the waste treatment “system” includes all conveyances, drains, pipes or ditches that carry water into or from the places where treatment occurs and should be considered as a holistic unit. At many facilities, there are drains and ditches that flow to sumps, lagoons, and other ponds, whose contents are eventually pumped or discharged to another pond exempted under the waste treatment

51 79 Fed. Reg. at 22,263

52 Id . at 22,217

53 Id . at 22,190

54 EPA & U.S. Army Corps of Engineers, Questions and Answers

– Waters of the U.S. Proposal at Page 6

– Q24, available at http://www2.epa.gov/uswaters/questions

- and

- answers

- about

- waters

- us

- proposal

- pdf

55 UWAG comments on WOTUS Proposed Rule (November 14, 2014), Section V (D.)

56 Fla. Admin. Code 62

- 520.310(12)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

99 systems (e.g., ash ponds). The entire “system” needs to be defined to include all of these conveyance or internal features.

Classifying waste treatment systems as juris dictional “waters of the United States” would also place states in an impossible position with respect to setting and implementing water quality standards, including assigning a designated use for the jurisdictional water. Since the agencies are precluded from designating a use as “waste transport,” states would be required to assign “fishable, swimmable” uses these waters, unless the state performs an analysis that demonstrates that attaining the highest use is infeasible for one of six narrow reasons. Reg ulators would face two equally unpalatable options: attempt to impose patently arbitrary “fishable, swimmable” uses for waste treatment systems, effectively rendering them useless for their intended purpose, or undertake the expensive, time

consuming scien tific analysis required to justify less restrictive uses and criteria. And, if the state chooses the first option and the “receiving water” fails to meet the applicable criteria (which almost certainly will be the case), the regulator will need to identify the waterbody as impaired and develop any pollutants pecific total maximum daily loads (“TMDLs”) necessary to ensure the uses and criteria are met. This would do nothing to protect the Nation’s waters; its only purpose would be to undermine the use of tre atment systems designed to serve the statute’s pollutant discharge reduction goals. (p. 43

- 46)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds,

and wastewate r recycling and stormwater control features.

7.129 Another specific area for discussion in this area concerns how the proposed rule would affect ash pond closure activities. For example, all of our sites in North Carolina will be undergoing ash pond closures ove r the next several years. All of Duke Energy’s ash ponds are currently covered under the waste treatment exclusion and the effluent from these ponds is addressed through the site’s NPDES permit. Duke Energy expects the agencies to continue to include ash p onds under this exemption. As discussed previously in these comments, the agencies have stated publicly several times that they were not making any changes to the waste treatment exemption. However, even with the exemption in place, the proposed rule’s exp anded definitions, which are expected to bring in an increased number of water features deemed jurisdictional (i.e. conveyances, stormwater drainage areas, etc.). This will result in additional secondary impacts for pond

closure activities. Some of these a ctivities include development of temporary roads, laydown areas and borrow areas. Ultimately, this will result in additional permitting requirements for larger areas and increased mitigation costs. Duke Energy recommends that the agencies clarify that all water features that are associated with ash ponds, including conveyances to the pond and any upstream collection basins, be considered part of the entire waste treatment system and covered by the appropriate exclusion. In addition, Duke Energy recommends t hat the agencies confirm that the waste treatment exclusion for ash ponds and all associated internal conveyances will not change until all closure activities have been completed. Any redundant permitting requirements for these

activities could lead to len gthy delays in restoring these areas. (p. 67

- 68)

Agency Response: See summary response at 7.1

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

100 Ameren Corporation (Doc. #13608)

7.130 The proposed rule also indicates there will be no change to the waste treatment exclusion for systems designed consistent with the requirements of the Clean Water Act. However, Ameren energy centers have numerous ponds, lagoons or impoundments used for storage of storm water runoff or for waste water treatment that may fall under this proposed definition and may result in additional permitting or case

- specific evaluations. Point source discharges that are covered by NPDES permits should not fall under the jurisdiction of WOTUS. (p. 2)

Agency Response: See summary response at 7.1

. See also summary response at
7.4.4 regarding the agencies’ creation of an exclusion fo r certain stormwater control

features.

Florida Power & Light Company (Doc. #13615)

7.131 The proposed rule's introduction of several broad terms, such as "tributary," "adjacent," "similarly situated waters," "significant nexus" and "neighboring," complicates a clear assessment of the proposed rule's potential to expand or alter the extent of WOTUS. The terms and their associated definitions expand the Clean Water Act's (CWA) jurisdiction over waters that are currently classified as non

- jurisdictional, such as ep hemeral streams and geographically isolated features based on current agency practice. For example, FPL has significant concern that the language in the proposed rule could be interpreted to conclude that cooling ponds at power plants could be jurisdiction al if they are adjacent or neighboring to WOTUS. Similarly, man

- made ditches or drainage swales that are designed to convey stormwater or wastewater to discharge points or on

- site retention/detention ponds for subsequent, direct or indirect, discharge to a regulated WOTUS could be jurisdictional under the proposed rule. It is critical that the final rule make clear that the waste treatment system exemption includes each potential design feature of a waste treatment system regardless of its location near a W OTUS, and that cooling ponds at power plants continue to be exempted from WOTUS designation. (p. 1

- 2)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain cooling ponds and wastewater recycling and stormwater control features.

7.132 The proposal r emoves the "cooling ponds" exce ption contained in the original exclusion.

The original exclusion stipulates that WOTUS do not include "waste treatment systems, including ponds or la goons designed to meet the requ irements of this act (other than cooling ponds as defin ed in 40 C.F.R. 4 23.II (m) which also meet the cr iteria of this

def inition) ...', 57 The current proposal removes this parenthetical reference, While it is appropriate to remove this language as that definition no longer appears in 40 C.F.R. 423, we urge the inclusion of additional regulatory language that clearly exempts cooling ponds from WOTUS classification.

57 40 CFR 122.3(i)

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

101 The proposal also adds a comma after "lagoons" in the original exemption. This

grammat ical modification is a substantive change that could unintentionally limit the exemption to only ponds or lagoons. While we believe the agencies' view is that the rule

refers to all waste treatment systems, not just ponds and lagoons, the punctuation error

should be addressed so as not to undermine the scope and intent of the exemption.

With respect to the exemption itself, the preamble appropriately notes that "[w]here

waters would be determined to be jurisdictional under the proposed rule, applicable

exem ptions in the CWA would continue to preclude application of CWA permitting requirements. 58 We believe the agencies have not intentionally sought to limit the scope of the existing waste treatment system exemption; however, the inclusion of additional

terms such as "adjacency" and "neighboring" create further uncertainty around jurisdictional designations that could potentially result in permitting delays and confusion for regulators and project applicants. As a result, the final rule should include language that clarifies what specific waste treatment system components are exempt in order to minimize applicants' and permitting agencies' confusion.

Adding specificity to the components of exempt waste treatment systems is essential to promoting the regulatory c larity intended through this rulemaking and will ensure that the exemption is not unintentionally undermined. For example, many power plants use large reservoirs for cooling water as part of a closed

- cycle recirculating system (CCRS). Traditionally, these are not considered WOTUS as they are created to allow water heated by generation equipment to cool off before being reused. However, under the proposed rule, many such systems could be deemed jurisdictional due to their proximity to WOTUS. If these ponds a re designated as WOTUS, they would be subject to additional restrictions or even prevent the use of such ponds for CCRS, undermining the intent of the recently

- finalized standards for cooling water intake structures under CWA Section 316(b). Additionally, utilities also use surface drainage ditches and ponds to ensure compliance with existing Spill Prevention, Control and Countermeasures (SPCC) regulations and comply with both the CWA and the Oil Pollution Act, as well as state and

local

- level water quality laws. In some cases, the ditches are part of an overall system to capture oil and other spills well before reaching regulated WOTUS. These ditches and ponds should remain expressly exempted from WOTUS. We also recommend that any system constructed and mai ntained as a water quality treatment system, whether under federal or state authority, should be covered under the exemption.

Thus, we recommend regulatory language stating that the waste treatment system exemption includes at least the following component s (see proposed regulatory language below):

• Treatment ponds and lagoons

• Drainage ditches

• Stormwater detention/retention ponds

• Cooling water impoundments

58 79 Federal Register 22189 (April 21, 2014).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

102 • Spill diversion ditches and containment ponds

• Polishing ponds

• Ditches and canals that connect units of a waste treatment system

• Wastewater treatment tanks, including oil

- water separators and sumps, and piping/conveyances

We also urg e that the final rule make clear that a waste treatment system should be exempted if it was designed for th e purpose, in whole or in part, of treating any type of

waste considered a pollutant under the CWA, and the system was constructed in uplands or not in WOTUS. Further, if the construction of the waste treatment system pre

- dated

the CWA and th e agencies' expansion of jurisdictional inclusion of adjacent wetlands, the system should also be expressly exempted. (p. 3

- 5)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain cooling ponds and wastewater recycling and stormwater control features.

7.133 We recommend the follo wing regu latory revision to 33 CFR 328.3(b), 59 with addit ions

underlined bold

. (b) The follow ing are not "waters of the United States" notwithstanding whether they mee t the terms of paragraphs (a)(1 ) through (7) of this section

-
(1 ) Waste treatment systems , including treatment ponds or lagoons, designed to meet the requirements of th e Clean Water Act or an applicable state water quality law or r egulation. Waste tr e atm ent systems include

, b ut ar e not

l i mit e d to, th e following features :

(i) Tr e atm e nt ponds and lagoons;

(ii) Drainage ditches ;

(iii) Stormwa ter detention/retention ponds;

(iv) Cooling water impoundme nts;

(v) Spill diversion ditches and containment ponds ;

(vi) Polishing ponds;

(vii) Ditches and cana ls that conne ct u nits of a waste treatment system ;

and

(viii) Wast e wat e r tr eatme nt tanks, including oil

- water separators and sumps , and piping/con veyances.

The agencies should also define such waste treatment features out of WOTUS definitions

in ex isting regulatory guidance documents (p. 3

- 5)

59 79 Federal Register 22263 (April 21, 2014).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

103 Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features.

Murray Energy Corporation (Doc. #13954)

7.134 ...despite the cla im that the existing exclusion for waste treatment systems has been preserved, the Agencies have proposed clerical changes to the exclusion that appear to have the effect of narrowing it. The following marked text highlights the difference

between the exis ting exclusion and the proposed one:

Existing . Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 C.F.R. § 423.11(m) which also meet the criteria of this definit ion) are not

waters of the United States.

Proposed . Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.

Comparison . Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.

The addition of a comma after “lagoons” would presumably make all waste treatment

systems

– not just treatment ponds or lagoons

– subject to the “designed to meet” standard. This clerical change could have an unintended substantive effect of narrowing the exclusion by making all waste treatment systems

– not just treatment ponds or lagoons

– subject to the “designed to meet” standard. This is a particular concern for Murray and the coal mining industry...waste water treatment systems at surface coal mine sites are, as they must be, designed to meet the requirements of SMCRA. We question the Agencies’ characterization of this as being an ineffectual “clerical” revision. If the Agencies did not intend to alter the wastewater treatment system exemption in any way, as they claim, then it is hard to see why there is even a need for this change. (p. 19

- 20)

Agency Response: See summary response at 7.1

.

The Florida Electric Power Coordinating Group, Inc. (Doc. #13993)

7.135 ...A specific concer n is that some waste treatment systems could be seen as being waters of the United States under the extremely broad language of the proposed rules. Examples of such waste treatment systems include cooling ponds, ash ponds, industrial stormwater

treatment p onds, rapid infiltration basins, settling basins, etc. Many such waste treatment systems very likely will be "adjacent" or "neighboring" under the proposed definition, due to Florida's unique, low gradient topography. If such waste treatment systems are

co nsidered to be waters of the United States, the regulatory consequences would be enormous. The treatment systems would no longer be able to serve their essential purpos e (which is to treat wastewater) , because EPA's regulations specifically state that wast e assimilation and transport cannot be designated uses of waters of the United States. 40 CFR §131.10(a).

Capturing such treatment works as waters of the United States would be an absurd policy choice, because permitted waste treatment systems cannot possi bly be part of the aquaticClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

104 inventory that Congress intended to protect under the CWA (in contrast to some wetlands, that do warrant protection). To assert that waste treatment systems are waters of the United States would be to negate their status as waste treatment systems. Although permitted waste treatment systems potentially could impact nearby jurisdictional waters, asserting jurisdiction is not a sensible approach to addressing potential impacts. Alternatives include reliance on state licensing agenci es (in states that have groundwater standards protective of downgradient surface waters), facilitating management of potential impacts through EPA's oversight of the CWA nonpoint source continuing planning process, or relying on potential impacts to be add ressed under the TMDL

program.

The current language of the waste treatment system exclusion is not adequate to solve the problems created by the proposed rule revisions, because courts have tended to interpret exclusions very narrowly. For example, in one case the court held that the exclusion is available only if the waste treatment system is completely self

- contained (presumably meaning it cannot discharge to groundwater that migrates to surface waters) or is authorized under an NPDES permit. Northern Cal ifornia River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007). In Florida, virtually all groundwater migrates to nearby surface waters, and treatment systems that do not have point source outfalls are not covered under NPDES permits (though the d ischarges to groundwater are regulated under state law). Thus, there is an acute need for changes to the proposed rule revisions.

Recommendation

The FCG

- EC recommends that in the final rule the agencies decline to utilize the significant nexus concept to e xtend jurisdiction categorically to "other waters" that are neighboring or adjacent to traditionally navigable waters (or their tributaries). This would substantially address most of the FCG

- EC's concerns with respect to both waste treatment systems as wel l as CWA §404 permitting more generally. Alternatively, the FCG

- EC recommends that this definition of "waste treatment system" be included in the final rule:

A ''waste treatment system" is an impoundment or other body of water that is created primarily to treat pollutants pursuant to the Clean Water Act or State law. It includes treatment ponds or impoundments created prior to the enactment of the

Clean Water A ct in 1972, and also includes treatment ponds or impoundments created in ''waters of the United States" where construction of the pond or impoundment is authorized by a federal regulation or permit that takes into account impacts on the aquatic ecosystem. It also includes all treatment systems regulated under a NPDES permit. It includes treatment ponds or impoundments that do not have point source outfalls and discharge to groundwater, if the groundwater discharges are licensed by a State environmental agen cy and applicable State groundwater regulations account for impacts to surface waters. A waste treatment system includes any appurtenant features, including, but not limited to, ditches, canals, and other waterways that convey wastewater or treated

water t o or from features where treatment occurs. (p. 4

- 5)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain cooling ponds and wastewater recycling and stormwater control features.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

105 NRG Energy, Inc . (Doc. #13995)

7.136 ...NRG understands the rationale for correction of an outdated regulatory reference; however, we strongly disagree with the Agencies ' suggestion that the change is not substantive for the following reasons.

Specifically, the deletion of the cross

- reference is of special concern with regard to perched cooling ponds . Historically these ponds have been considered to be part of permitted wastewater treatment systems, designed to dissipate heat prior to cooling water being discharged to surface w aters. As such, these ponds have been exempt from consideration as either waters of the state or waters of the U.S. However, cooling ponds may lie within the floodplain area of "traditionally navigable waters" or may be in close proximity to such jurisdict ional water. Cooling ponds may also be "adjacent" ("borders, contiguous or neighboring") to WOTUS and separated from traditionally jurisdictional waters by man

- made dikes or barriers, and therefore could be considered as WOTUS under the proposed definition

. The complete lack of specific reference in the proposed rule to perched cooling ponds or the use of ponds for cooling purposes is problematic in light of the set of new and expanded definitions discussed above, which blur the distinction between a design ated wastewater treatment system and a WOTUS.

Another concern involves existing wastewater treatment collection and conveyances

histori cally deemed to meet the current interpretation as components of a permitted

treatment system, because they do not direc tly discharge into a lake, stream, or river unless through an authorized (i.e., permitted) outfall. As mentioned above, the broadened

definitions included in the proposed rule could be applied to these storm and process water conveyances (influent and effl uent) and holding ponds which historically have been excluded from WOTUS determination, in turn requiring the installation of significant and costly, but unnecessary and redundant new controls to be built to protect these waters, which are already part of a permitted wastewater system.

Because the above mentioned terms are not explicitly identified in the proposed rule definitions, and to eliminate the risk of unintended and unwarranted jurisdiction, NRG

recommends the following additions to the defini tion of "Waters of the US" :

Revise 40 CFR 230.3 (t) (1) as follows :

"Waste treatment systems and their associated conveyances , including treatment and perched cooling ponds or lagoons , designed to meet the requirements of the Clean Water

Act." and,

Revise 40 CFR 230.3 (t) (5) (ii) as follows:

"Artificial lakes or ponds created by excavating and/or diking dry land and used primarily for such purposes as stock watering, irrigation, cooling, storage/ retention

, settling basins, or rice growing."

On a similar not e relating to impoundments, the following was taken from the preamble: "The agencies also note that an impoundment of a water that is not a waters of the United States can become jurisdictional if, for example, the impounded waters become navigable

- in

- fact and covered under paragraph (a)(l)".( Id. at 22201). This statement wasClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

106 likely intended to exclude waste treatment systems from waters of the United States; however, it should be clarified with specific language identifying perched cooling pond/permitted wastewater system component exclusions, as discussed above. (p. 6

- 7)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain cooling ponds and wastewater recycling and stormwater control features

.

Southern Company (Doc. #14134)

7.137 The Agencies Must Resolve a Clerical Error That Could Undermine Their Intentions of Preserving the Existing Waste Treatment System Exemption

This historical waste treatment exclusion is vitally important to electric utilit ies as it applies to operational units such as ash ponds and thermal treatment systems. And, while the agencies claim to have preserved the existing exclusion, a proposed clerical change to the exclusion, involving th e insertion of a single comma, 60 may hav e the effect of narrowing it. In discussions with EPA during the comment period, the agency has reiterated its commitment to maintaining the exclusion and has signaled its willingness to correct this error in the final rulemaking.

The addition of a comma a fter “lagoons” could be construed to make all waste treatment

systems

— not just treatment ponds or lagoons

— subject to the “designed to meet” standard. To the extent there is any doubt that the comma after “lagoons” is a scrivener’s error that would potentia lly change the scope of the exemption, we note that none of the eight States that have “state waters” definitions modeled on the federal standard have included a comma after “lagoons.” (See, e.g., New York, New Jersey, New Mexico, Oklahoma, Louisiana, Sout h Carolina, South Dakota, and Virginia). As such, we propose the following correction: “Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act.” (p. 47

- 48)

Agency Response: See summary response at 7.1

.

Southe rn Illinois Power Cooperative (Doc. #14402)

7.138 The Agencies should preserve an inclusive wastewater treatment system exclusion, and provide an on

- site water and wastewater management exclusion, to avoid disrupting hundreds of thousands of existing industrial operations nationwide; thus impeding development of needed new infrastructure, and imposing substantial new regulatory burdens on the regulated community, States, and the Agencies themselves. (p. 11)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

60 The proposed exclusion provides “Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the CWA” are not waters of the United States.”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

107 Golden Spread Electric Cooperative, Inc. (Doc. #14422)

7.139 The Agencies are not proposing any change to this exemption. However, this exclusion has historically suffered from ambiguity, which is not surprising, as the Agencies do not provide a definition of what they consider to be a "waste treatment system." The Agencies do not explain if features that manage wa ter (or convey water through ditches or other structures) but do not provide treatment to meet limits or other standards are exempt. For example, manmade basins and ponds serve a myriad of environmental and process purposes and do so in an environmentally responsible manner. It is also common for facilities to have stormwater retention basins to manage regulated storm water. To render these features "waters of the United States" would make them prohibitively expensive and would eliminate their viability. As such, Golden Spread recommends extending the waste treatment exclusion to manmade basins, in addition to those constructed for stock watering, irrigation or settling basins. (p. 7)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain cooling ponds and wastewater recycling and stormwater control features.

National Lime Association (Doc. #14428.1)

7.140 6. “Isolated” as used in the Definition of “Wetlands” is Another Term Which Needs

to be Defined and the Definition of “Wetlands” Needs to Clarified.

... b. “Wetlands” : Although “wetlands” is defined in the regulatory text of the proposed rule, as the proposed rule is currently written, the definition can be construed to include

an area where stormwater ru noff is held to allow it to evaporate and thereby avoid its discharge into another water which is, or might be, jurisdictional. Such features were created and exist solely for that functional purpose and would thus should fall within the

exclusion for wast e treatment systems provided under §328.3(b)(1) and the corresponding sections under the related C.F.R. parts (hereafter collectively referred to as the §328.3(b)(1) exclusion). While we believe that this exclusion would apply, because of the broad public belief that the proposed rule expands WOTUS jurisdictional and because of the overall ambiguity of the regulatory text as currently written (discussed throughout these comments), the Agencies need to reconfirm that such features do qualify as waste

treatme nt systems and pursuant to §328.3(b)(1) are not to be considered jurisdictional

wetlands.

If, however, the Agencies do not agree that such features qualify for the §328.3(b)(1) exclusion, they should nonetheless be classified as non

- jurisdictional along th e same lines provided for the several other features which the proposed rule would expressly exclude from being jurisdictional, see, e.g. , proposed §328.3(b)(5)(ii) (“Artificial lakes or ponds created by excavating and/or diking dry land and used exclusive ly for such purposes as stock watering, irrigation, settli ng basins, or rice growing.”), 61 79 Fed. Reg. at 22263, and

61 As written, the exclusion provided under §328.3(b)(5)(ii) appears to apply solely to agriculture and farming.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

108 §328(b)(5)(v) (“Water

- filled depressions created incidental to construction.”). 62 Id . (p.

10

- 11)

Agency Response: See summary responses at 7.1., 7. 4. 2 , and 7 .4.4

.

Synagro Technologies, Inc. (Doc. #14565)

7.141 The Waste Treatment Exemption Should Specifically Include Land Applications Sites for

Biosolids

Synagro appreciates that the Proposed Rule explicitly specifies that EPA will not change the longstanding regulat ions that exclude “waste treatment systems” designed to meet the requirements of the CWA (and prior converted cropland) from the definition of “Waters

of the United States.” (79 FR 22217). As such, the Proposed Rule maintains and clearly

articulates the ex emption for waste treatment systems designed to meet the requirements of the CWA. Synagro understands that the “waste treatment systems” exclusion from additional regulation from the Proposed Rule will include biosolids management performed in compliance w ith the Part 503 regulation. 63 These regulations provide an essential component of the existing regulatory framework that ensures effective wastewater agency operations.

The retention of the waste treatment exemption is one of the highest priorities for

was tewater agencies and their biosolids management service providers. Synagro also endorses the proposed rule’s clarification that EPA does not intend alter the regulation of groundwater at the federal level and, in fact, the proposed rule codifies a number o f the waters and features that EPA has by longstanding practice generally considered not to be

“ Waters of the United States. ” (Id. at 22218) Nevertheless, Synagro is concerned that without clear and definitive language expressly provided in the Final Rule that it can be inferred that the increased federal jurisdiction over lands (by calling them “navigable waters”) could easily be construed as establishing a new federal power would cause an impediment ordinary farming practice of utilizing biosolids as a fertilizer. Specifically, the lack of clarity in the Proposed Rule as to what is included in the waste treatment exemption will create regulatory barriers to the effective implementation of biosolids land application projects without a commensurate benefit to the environment.

The wastewater treatment process generates biosolids which is applied to lands which includes farm land, d rought stricken areas, fire damaged areas, green belts, and recreational areas. Under the broad criteria of this Proposed Rule, land application sites for biosolids can be subject to Proposed Rule designation and requirements. As stated before, such sites are already subject to CWA regulation by EPA under the Part 503 Rule which addresses control of coincidental wastewater and runoff which may collect during the handling, interim storage and processing of biosolids for land application. To mitigate

conflict ing regulation, the existing Part 503 provisions should govern and therefore the

62 As written, the §328(b)(5)(v) exclusion appears to apply solely to construction

. 63 See 40 C.F.R. §35.2005(b)(12), defining “complete waste treatme nt system” as “all the treatment works necessary to meet the requirements of title III of the [CWA], involving . . . the ultimate disposal, including recycling or reuse,

of the treated wastewater and residues which result from the treatment process.” (Emph asis added)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

109 waste treatment exemption should be broadened to expressly include in the final rule that lands already subject to Part 503 land application requirements. (p. 2)

Agency Response: See summary r esponse at 7.1

.

National Rural Water Association (Doc. #14623)

7.142 We do not believe that a new rule should result in changing the historic regulatory understanding for coverage of water infrastructure. Any final rule should retain the current exclusion (33 C FR 328.3(a) and 40 CFR 122.2) for “waste treatment systems” and clarify that that the exclusion includes similar practices implemented by drinking water treatment systems. (p. 4)

Agency Response: See summary response at 7.1

.

Berkshire Hathaway Energy Company (Doc. #14650)

7.143 A. The Agencies Should Clarify That Waste Treatment Systems Not Subject To Effluent Limitations or Otherwise Subject to Regulation are Exempt from Waters of the U.S.

The Agencies state that no changes are being proposed to the longstanding exclusion for

w aste treatment systems designed to meet the requirement of the Clean Water Act. 64 The waste treatment exemption has historically included surface impoundments or settling ponds that are part of a waste treatment system at an electric generation facility.

Ho wever, if the Agencies proceed with the proposed expansion of the definition of waters of the U.S., changes will be required to the existing exemption for waste treatment systems because utilities will be required to rely on the waste treatment system

exem ption to a greater degree.

To illustrate, certain surface impoundments and settling ponds that may be considered as part of a waste treatment system may not be subject to effluent limitations under the

Clean Water Act because the water is used in a closed

- cycle system and is not discharged. Such surface impoundments and settling ponds have not historically been considered waters of the U.S. because they were not considered wetlands. Accordingly, companies have not needed to rely on the waste treatment exemp tion for exclusion of certain waste water systems. However, under the proposed expanded definition of waters of the U.S., these waste water systems could become jurisdictional. Accordingly, the waste treatment system exemption should be modified to specifi cally exempt waste treatment systems that are not subject to effluent limitations. In addition, waters that may otherwise be subject to future regulations, such as updated effluent limitation guidelines or coal combustion residual rules, should specificall y be included in the exemption of waste treatment systems. (p. 4)

Agency Response: See summary response at 7.1

. See also summary responses at
7.3.2 and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and

stormwater control features.

64 Id . at 22217 . [ Definition of “Waters of the United States” Under the Clean Water Act , 79 Fed. Reg. 76 at 22193 (April 21, 2014). ]Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

110 American Public Power Association (Doc. #15008)

7.144 APPA has concerns that the proposed rule indicates that the agencies would interpret the waste treatment exclusion to mean that no waste treatment system qualifies for the exclusion unless the system was designed consistent with the requirements of the CWA. 79 Fed. Reg. at 22,199. Therefore, facilities designed prior to passage of the CWA could be in question under the proposed rule. Clarification of the waste treatment exclusion is critical for APPA’s members, as they must b e able to rely on the exclusion. The agencies should address which features and waters can be considered a waste treatment system. Moreover, the agencies should clarify that all on

- site management of water, including transport, storage, treatment, and use, are non

- jurisdictional. Any discharges into waters of the U.S. that result from these activities are already covered under Section 402 of the CWA. The agencies should engage with stakeholders that rely on the waste treatment

exclusion to understand the co nfusion and unpredictability that surrounds this exclusion. After having these critical stakeholder discussions, the agencies should propose a revised rule that addresses the waste treatment exclusion and provides some much needed clarity for regulators an d the regulated public. (p. 9

- 10)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

Utility Water A ct Group (Doc. #15016)

7.145 5. Implications for § 316(b) Regulation of Cooling Water Intake Structures

The definition of WOTUS also determines the applicability of EPA’s CWA § 316(b) rules for new and existing facilities, which apply to facilities that withdraw “cooling water” from WOTUS and have any sort of NPDES permit. Although many facilities

withdraw c ooling water from natural waters, many others withdraw cooling water from

purpose

- built ponds or impoundments designed to capture on

- site stormwater and snowmelt, ensure adequate cooling water supply, and reduce withdrawals from nearby jurisdictional water s. Some of those ponds also receive and remove heat from condenser cooling water, in which case they should fall within the waste treatment system exclusion. But others do not and, given their likely location (adjacent and connected, directly or indirectly , to jurisdictional waters), could be reclassified as WOTUS. Where the cooling impoundment is self

- contained and does not require withdrawals from any jurisdictional water, reclassifying the impoundment as a WOTUS would trigger application of the § 316(b) rule and the substantial costs associated with that rule. 79 Fed. Reg. 48,300, 48,383

- 401 (Aug. 15, 2014); EPA, EPA

- 821

- R

- 14

- 001, Economic Analysis for the Final Section 316(b) Existing Facilities Rule (May 2014), available at http://water.epa.gov/lawsregs /lawsguidance/cwa/316b/upload/Cooling

- Water_Phase

4_Economics_2014.pdf. And where cooling water is replenished by withdrawing make

up water from a WOTUS, classifying the pond as jurisdictional would create enormous confusion regarding the point of complia nce with the § 316(b) rules. (p. 28

- 29)

Agency Response: See summary response at 7.1

. See also summary response at
7.3.2 regarding exclusion o f certain cooling ponds

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

111 7.146 The Agencies say that they are neither changing nor seeking comment on the waste treatment system exclusion here. 79 Fed. Reg. at 22,189 col. 2, 22,190 col. 1. But the Agencies, perhaps unintentionally, have made at least one change

– the addition of a

sim ple but crucial comma

– that could be misinterpreted as narrowing this important

exclusion. See infra p. 73. In meetings with industry and in various public statements, the Agencies have stressed their desire to maintain the status quo with respect to wast e treatment systems and other industrial features not currently regulated as jurisdictional waters. Below, we explain why it is important for the Agencies to avoid unintended “regulation by punctuation” that could change the status quo for many waste treat ment systems appropriately treated as non

- jurisdictional at steam electric plants and other industrial facilities. If the Agencies intend their proposed definition of waters of the United States to cover any industrial waters, including any waste treatment system components of the type discussed below, which typically have not been considered jurisdictional, they may do so only after fully assessing the costs and other regulatory consequences, and providing adequate notice and an opportunity to comment. (p. 66

- 67)

Agency Response: See summary response at 7.1

.

7.147 Waste treatment systems vary by facility, but at electric generating stations, they typically include: wastewater collection features (such as bins, basins, and channels), wastewater treatment facilities (such as cooli ng ponds, ash ponds, physical/chemical treatment tanks, dewatering bins, coal pile runoff collection ponds, raw water clarifier ponds, sludge management ponds, low volume waste ponds, and stormwater sedimentation ponds), and

wastewater and treated water co nveyances (such as pipes, channels, and conduits) that convey untreated or treated wastewater to and from these features. Waste treatment systems also include stormwater retention/detention basins at service centers, substations,

and other fixed facilities . Waste treatment systems also include SPCC structures located at generating plants and other types of fixed facilities ( e.g. , substations, transmission poles) containing transformers.

Some components of a waste treatment system may be enclosed (e.g ., in a building or a pipe), while other components typically are outdoors ( e.g ., an ash pond, cooling lake or pond, or a runoff collection pond). The electric utility industry commonly uses systems of interconnected pipes, channels, basins, ponds, and other feat ures for collecting and treating wastewater. As EPA has acknowledged, “[s]ystems for handling the products of

coa l combustion by hydraulic... conveyors [( i.e ., by water)] have b een used for 50 years

or more. 65

EPA has long recognized that the collection and tr eatment of waste in ponds or impoundments is an important component of effective waste treatment. Indeed, the Agency’s effluent limitations guidelines for the steam electric power generating category include technology

- based limitations predicated on the l evel of control achievable by “ash ponds.” Ash ponds hold and treat ash transport water via the settling of solids, or sedimentation. “Sedimentation processes promote gravity settling of solid particles to the

bottom of the water column where accumulated s olids are removed.” American Water

65 EPA, Development Document for Final Effluent Limitations Guidelines, New Source Performance Standards, and

Pre treatment Standards for the Steam Electric Point Source.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

112 Works Association, Water Quality and Treatment 163 (4th ed. 1990); see also Mackenzie Davis & David Cornwell, Introduction to Environmental Engineering 189 (2d ed. 1991). Supplemental treatment

– for example, the addition of polymers or flocculants

– can be designed economically by treating portions of ash transport water separated into

treatment “cells.”

Ash transport water is just one example of the type of wastestream that steam electric plants manage and treat in ponds or impoundments. As another example, coal

- fired plants generally collect sediment

- laden runoff from coal piles and then convey that sediment to coal pile runoff collection ponds where the sediment is allowed to settle out of the water

before the water eva porates, is re

- used, or, in many cases, is discharged.

Coal

- fired power plants are not alone in using ponds or impoundments to treat

wastewater. Like coal

- fired plants, gas

- and oil

- fired plants, as well as nuclear plants, produce a variety of low volume w astewater and stormwater from the generating site. That water must be managed and treated to ensure compliance with permit requirements. Waste treatment ponds are an effective and proven technology for meeting such requirements

– so much so that EPA itself identifies both wet and dry ponds as “best management practices” for controlling pollutant discharges from stormwater. See EPA, Water: Best Management Practices, Post

- Construction Stormwater Management in New Development & Redevelopment

, http://water.epa. gov/polwaste/npdes/swbmp/PostConstruction

- Stormwater

- Management

in

- New

- Development

- and

- Redevelopment.cfm (last updated July 2, 2014).

The treatment of heat is another important example of waste treatment systems at electric generating stations. Steam elec tric plants use condenser cooling water to transfer waste heat. Heated water from the plant may be conveyed to a cooling pond or impoundment, where the heat is treated by dissipation to the air. Cooled water within the cooling pond can be pumped back into the plant to start the cooling process again (in a closed loop system) or discharged to downstream “waters of the United States” (subject to CWA § 402 permitting requirements, including limits governing waste heat). Many of these

features are man

- made rese rvoirs that were created purposefully to serve an industrial facility, and they are different from natural waterbodies. As an example, most power plant cooling impoundments located in Texas are designed specifically for heat dissipation. Moreover, in most cases, the man

- made features would not exist without the power plant.

Similarly, areas that might otherwise contain features consistent with jurisdictional wetlands (or “waters of the United States”), such as hydrophytic vegetation and hydric soils, can in fact be waste treatment systems. For example, EPA has recognized and encouraged the use of “constructed wetlands” for wastewater treatment. See, e.g. , EPA,

EPA/625/1

- 88/022, Design Manual: Constructed Wetlands and Aquatic Plant Systems for Municipal Waste water Treatment at 15 (Sept. 1988), available at http://water.epa.gov/type/wetlands/upload/design.pdf. EPA also considers wetlands restoration a method of abating pollution from nonpoint and point sources. See EPA,

EPA

- 841

- B

- 05

- 003, National Management Mea sures to Protect and Restore Wetlands 60 and Riparian Areas for the Abatement of Nonpoint Source Pollution at 43 (July 2005),

available at http://www.epa.gov/owow/nps/wetmeasures/; EPA, EPA/832

- R

- 93

- 005,

Constructed Wetlands for Waste Water Treatment and W ildlife Habitat, 17 Case StudiesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

113 (Sept. 1993 ), available at http://www.epa.gov/owow/wetlands/pdf/ConstructedWetlands

Complete.pdf.

As this short overview demonstrates, water features ranging from constructed wetlands to ponds, lagoons, basins, and other im poundments, along with the ditches, channels, and canals that convey waste to and from those features, typically play an important role in waste treatment systems used at electric generating stations and related transmission and

distribution facilities. Th ey provide important environmental benefits by facilitating the proper handling and treatment of wastes produced during the process of generating, transmitting, and distributing electricity, ensuring that pollutant discharges are properly

controlled before they discharge through a regulated point source to WOTUS.

If these waste treatment systems or their components were deemed WOTUS as a result of the Proposed Rule (for instance, as a result of their “adjacency” to a jurisdictional water),

facilities would face the incongruous situation whereby an NPDES permit would be required for a discharge of wastewater or other fluids or substances into its treatment

system, 66 and that permit would require compliance with all technology

- and water quality

- based limits be fore the water enters the treatment system. This would make those features redundant and essentially useless for their intended purpose. It also would add exorbitant costs (mostly borne by the ratepayers) for replacement systems that provide

li ttle or no a dditional benefit. 67 Alternative technologies, if practicable or available at all, could create their own environmental issues, for example by increasing impervious cover and requiring additional energy for pumping. Likewise, a Corps § 404 permit would be

r equired for essential maintenance of waste treatment systems and the placement of

control features or other structures within these features. (p. 67

- 71)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain cooling ponds and wastewater recycling and stormwater control features.

7.148 B. Exclusion of All Parts of a Waste Treatment System Is Consistent with the Language of the Statute and Congressional Intent.

Exclusion of treatment facilities from the d efinition of the WOTUS is consistent with the language of the statute and Congressional intent. These treatment facilities function as

NPDES “end

- of

- pipe” treatment technologies and form an integral part of the total plant production and treatment process. Congress did not expect that EPA would view treatment facilities as regulated waters or regulate discharges into treatment facilities.

66 Although § 122.45 of the NPDES regulations authorizes the establishment of “internal waste stream[ ]” limits where compliance monitoring at the point of discharge to WOTUS is impractical or infeasi ble, the authority to impose those limits is based on control of discharges from the point source to WOTUS. 40 C.F.R. § 122.45(h).

67 State regulators also would face additional costs, since they would have to establish water quality standards for

those wat erbodies. As discussed supra pp. 13

- 16 and infra p. 63, absent a waste treatment system exclusion, EPA’s Water Quality Standards rule, 40 C.F.R. § 131.10, forces regulators to choose between assigning patently arbitrary “fishable, swimmable” uses and assoc iated criteria on manmade systems for which such uses are wholly inappropriate or spending their scarce time and treasure performing “use attainability analyses” in the hopes of justifying less restrictive uses and criteria.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

114 Instead, Congress intended that each company would be free to make “its own,

innovative... decision” on how to meet end

- of

- pipe standards. 68

The plain language and structure of the CWA reflects Congressional intent that waste treatment systems would be viewed as components of point sources or facilities, not as WOTUS. The CWA defines “point sour ce” as any “discrete conveyance... from which pollutants are or may be discharged.” CWA § 502(14), 33 U.S.C. 1362(14) (emphasis added). Waste treatment systems are upstream of the point of discharge and thus are part of the system “from which”

– not into which

– pollutants are discharged wi thin the meaning of the CWA. Id. Both the plurality opinion and Justice Kennedy’s opinion in Rapanos identify and accept this important distinction and recognize that the CWA definitions conceive of “point sources” and “navigable waters” as separate and di stinct categories. Rapanos , 547 U.S. at 735 ( plurality), 771 (Kennedy, J.). 69 Excluding waste treatment systems from jurisdiction is essential to maintaining this distinction. (p. 71

- 72)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4. 2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

7.149 The waste treatment system exclusion is one important tool for avoiding those implications and preventing conflicts wit h NPDES requirements. (p. 73

- 74)

Agency Response: See summary response at 7.1

.

7.150 Both Agencies’ definitions include a parenthetical cross

- reference to “cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition . . . .” 40 C.F.R. § 122.2(g) ; 33 C.F.R. § 328.3(a). The effect of that parenthetical is to exclude such ponds from protection under the waste treatment system exclusion. But, over thirty years ago, EPA withdrew the technology

- based cooling pond regulations and accompanying definition that the parenthetical was designed to reference. See 45 Fed. Reg68,328 (Oct. 14, 1980) (proposed); 47 Fed. Reg. 52,290 (Nov. 19, 1982) (final). The Agencies propose (appropriately, we agree) to delete this parenthetical cross reference, recognizing that it refers to “an EPA regulation that is no longer in the Code of Federal Regulations.” 79 Fed. Reg. at 22,217 col. 3. The preamble characterizes this change as

non

- substantive. Id . Again, we agree. EPA long ago withdrew its regulations designed to

68 S. REP. NO. 92

- 414, at 59 (1 971), reprinted in 2 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 1477 (1973). Similarly, the Conference Report on the 1972 CWA

states that: [T]he Administrator is required to establish standards of performance which refl ect the levels of control achievable through improved production processes, and of process technique, etc., leaving to the individual new source the responsibility to achieve the level of performance by the application of whatever technique

determined avai lable and desirable to that individual owner or operator.

S. REP. NO. 92

- 1236, at 128 (1972) (Conf. Rep.), reprinted in 1 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 311 (1973).

69 Justice Kennedy takes issue with the plu rality for its “negative inference” that, because point source discharges and WOTUS are mutually exclusive, and the plurality assumes that point source discharges are always intermittent, waters that flow intermittently are more like point sources than WOT US. Id . at 771

- 72. But Justice Kennedy’s quarrel is with the assumption that all point source discharges are intermittent, not with the legal significance of the distinction between point source discharges and WOTUS.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

115 constrai n the use of cooling ponds and lakes, meaning that the substantive change occurred years ago. (p. 78

- 79)

Agency Response: See summary response at 7.1

.

7.151 2. The Waste Treatment System Exclusion Applies Without Regard to When or Why a System Was Originally Constructed or Whet her It Requires an NPDES

Permit.

In many cases, waste treatment systems excluded from CWA jurisdiction involve components that were designed and constructed before the CWA was passed, that perform multiple functions, including treatment, or that do not req uire an NPDES permit. State and federal regulators routinely apply the waste treatment system exclusion to such systems, thereby excluding them from CWA jurisdiction.

For example, at several electrical generating stations in Florida, the treatment and

subs equent movement of industrial wastewater from ponds to groundwater are regulated through a state regulatory program. The Florida Department of Environmental Protection’s (“FDEP”) Industrial Wastewater Program (“IWW”) authorizes the use of “percolation pond s.” Percolation ponds are artificial impoundments designed and operated to allow the vertical movement of treated water through the bed of the pond. The wastewater being treated in these ponds is composed mostly of neutralized, non

hazardous low

- volume was tes from generating stations.

Because these ponds allow the movement of treated water to groundwater, which is not regulated under the CWA, and typically do not discharge to surface waters regulated under the CWA, these percolation ponds generally are not included or regulated in NPDES permits issued 71 by the FDEP. Instead, percolation ponds are regulated under a separate environmental permit issued by the FDEP under separate state statutes and rules. Therefore, while the design and operation of these pond s are subject to state regulation, the industry and state regulatory agencies consider these ponds to be waste treatment systems, not WOTUS regulated under the CWA. (p. 80

- 81)

Agency Response: See summary response at 7.1

. See also the summary response

at 7.4.2 regarding th e agencies’ creation of an exclusion for certain wastewater recycling features , including percolation ponds

.

7.152 3. The Waste Treatment System Exclusion Applies to the System as a Whole, Including Related Conveyances.

Most waste treatment systems do not consist of a single impoundment, structure, or feature where all treatment functions occur. Rather, management of the wastewater to and from the places where treatment occurs is an intrinsic and important part of the waste treatment system. This principle should be so obvious as to encounter no opposition. 70

70 A passing statement in the Proposed R ule’s preamble says: “Ditches may have been created for a number of purposes, such as irrigation, water management or treatment, and roadside drains. In order to be excluded, however, the ditch must be excavated wholly in uplands, drain only uplands, and h ave less than perennial flow.” 79 Fed. Reg.
at 22,203

- 04 (emphasis added). What this statement does not say, however, is whether such a ditch also could be excluded under the waste treatment system exclusion. We believe that the Agencies most likely failed to mention the exclusion in this context because, in their minds, it is settled that it should apply and therefore not worthy ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

116 (After all, the word “system” itself connotes a set of connected parts of things forming a complex whole, not a single, isolated feature.) The Agencies and reviewing courts agree, confirming that channel s linking the basin where treatment occurs are unavoidable and necessary components of a waste treatment system. See 2006 Grumbles Letter at 3; Ohio Valley Envtl. Coal. , 556 F.3d at 209 (“[S]tream segments, together with the sediment ponds to which they connect, are unitary ‘waste treatment systems’ . . . .”). Also, as the Agencies acknowledge, such channels often provide additional treatment. 2006 Grumbles

Letter at 3.

In short, the waste treatment system exclusion has been properly interpreted and appli ed to include all of the drains and ditches that flow to sumps, lagoons, and other ponds, or whose contents are eventually pumped or discharged to a pond exempted under the waste treatment systems (e.g., ash ponds) and from there discharge to jurisdictiona l waters. (p.

82

- 83)

Agency Response: See summary response at 7.1

.

7.153 E. The Agencies Should Undo Their Inadvertent But Potentially Substantive Change to the Waste Treatment System Exclusion.

The Agencies propose a subtle change in the waste treatment system exclusion that c ould be misinterpreted to narrow the exclusion (a result the Agencies have said they do not intend). The current rule excludes “Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act.” With th is punctuation, the qualifier “designed to meet the requirements of the Clean Water Act” modifies only the phrase “treatment ponds and lagoons.” The Proposed Rule would add a comma after “lagoons,” thus excluding “[w]aste treatment systems, including ponds or lagoons, designed to meet the requirements of the Clean Water Act.” Proposed 33 C.F.R. § 328.3(b)(1), 79 Fed. Reg. at 22,263 col. 1. This punctuation change could be interpreted as a substantive change to the provision. It can be read to change the rea ch of the qualifying language by applying it to all waste treatment systems. Under this reading, all systems, not just “treatment ponds and lagoons” to which the qualification currently applies, would have to be “designed to meet the requirements of the Cl ean Water Act” in order to fall within the exclusion. This creates new interpretative issues, as “designed to

meet” could be construed narrowly or broadly. 71 For example, features that were constructed for waste treatment prior to the CWA’s enactment in 197 2 could not have been designed with CWA compliance in mind, yet such features often play an essential role in achieving compliance with current CWA requirements and are commonly

mention. If so, the Agencies should clarify that ditches that are part of a waste treatment system are covered by the

waste tr eatment system exclusion. If that is not the case, however, the Agencies should explain their position and provide an opportunity for public comment.

71 Even if the “designed to meet” language were applied to all waste treatment systems, it need not be read as preventing application of the exclusion to systems that pre

- date the CWA, serve multiple functions, or require no NPDES permit. Absent temporal and other qualifications, it would be perfectly natural to read the “designed to meet” language as referring to those systems that currently function to reduce water pollution in some fashion. Such a reading is certainly consistent with the way in which the exclusion has been applied in most cases. But adding the comma invites unnecessary speculation and uncerta inty, which we urge the Agencies to avoid.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

117 excluded from regulation by virtue of the waste treatment system exclusion. Th e Agencies should avoid this interpretative minefield by deleting the new comma.

UWAG does not support this unacknowledged edit to the exclusion, which could limit the scope of the exclusion, converting currently excluded waste treatment systems into

WOTUS with a single stroke. The Agencies have said they are not making any substantive changes to the provision. If so, they should remove the comma. If the Agencies nevertheless retain the new comma, they must acknowledge the comma, explain what it means, and afford an opportunity for public comment. (p. 83

- 84)

Agency Response: See summary response at 7.1

.

Edison Electric Institute (Doc. #15032)

7.154 ...today a utility can withdraw water from a river or lake to an on

- site, constructed pond

and then use that water in a closed

- cycle sy stem, with or without returning the water to the river or lake. Under current regulations, that pond typically would not be considered a water of the U.S. and use of the pond would not trigger related regulatory requirements (e.g., CWA section 402 permitti ng obligations for transfers of water to or from the pond, section 404 permitting obligations for maintenance activities associated with the pond, or section 316(b) cooling water intake structure requirements for withdrawals from the pond to the power plan t for cooling purposes). However, the proposed rule categorically asserts jurisdiction over tributary and adjacent waters in a manner that could reclassify the pond

as a water of the U.S. This would hinder the use of closed

- cycle systems, which EPA's

cooli ng water intake structure rules seek to promote. This also would be inconsistent with past practices and interpretations, creating enormous confusion about the jurisdictional status of the pond and related regulatory requirements. Under longstanding EPA po licy, water that has been withdrawn from the waters of the U.S. is not subject to federal jurisdiction. 72 The proposed rule should maintain that distinction. (p. 20)

Agency Response: See summary response at 7.1

. See also the summary response

at 7.3.2 regarding the exclusio n o f certain cooling ponds

.

7.155 ...utilities also may have lagoons for the management of wastewater at their generation facilities. In some cases that wastewater may be discharged to a river under a section 402 national pollutant discharge elimination system (N PDES) permit. In other cases, the lagoon may not discharge. In either case, the lagoon should be covered by the waste treatment system exclusion. Like closed

- cycle cooling ponds, under the current definition, such a lagoon would not be considered a water o f the U.S. However, the proposed jurisdiction over "adjacent waters" under the proposed rule calls into the question the status of these lagoons. These lagoons are determined to be waters of the U.S., utilities may no longer be able to use them for storage , effectively requiring generation facilities immediately to find alternative, undoubtedly very costly, waste system management options that can be implemented within the physical constraints of a

72 This policy is described in the preamble to EPA's water transfer rule, which distinguishes between "a situation in which, for example, an industrial facility takes in water for the purpose of cooling some part o f the facility itself' where "the water used for cooling loses its status as a water of the United States" with transfers of water from one water body to another without an intervening industrial use. 73 Fed. Reg. 33697,33705 n.10 (June 13,2008).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

118 given facility site. This would prevent the use of lagoons in cases where they may be desired and appropriate, and the orderly and cost

- effective transition away from them in cases where utilities are required to move to other treatment options over time. Like cooling water, the water in these lagoons is being use d for an industrial purpose and

should not be considered a water of the U.S. 73 (p. 20

- 21)

Agency Response: See summary response at 7.1

.

7.156 The proposed rule would maintain the current exclusion of waste treatment systems from being jurisdictional, and the agencies state that they do not propose any substantive changes to the exclusion for waste treatment systems, though they would add a comma so the exemption would apply to "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act." 79 Fed. Reg. 22217. However, although the exclusion itself is fairly straightforward, it has not always been applied consistently. As a result, the same type of feature may be treated as an excluded "waste treatment system" in one instan ce, but treated as a jurisdictional "water of the

U.S." in another instance.

In addition, by adding a comma after the word "lagoons," the proposed rule could be read to narrow the scope of the exclusion by requiring that all "waste treatment systems," not just "treatment ponds or lagoons" as under the current rules, be "designed to meet the requirements of the CWA" to qualify for the exclusion. This could be interpreted to mean, for instance, that features that were constructed for waste treatment prior to the CWA's enactment in 1972 do not qualify for the waste treatment exclusion. This creates new interpretive issues, as "designed to meet the requirements of the CWA" can be construed narrowly or broadly. For example, features that were constructed for wast e treatment prior to the CWA's amendment in 1972 could not have been designed with CWA compliance in mind. Yet these features often play an important role in achieving compliance with current CWA requirements, and are now commonly excluded from regulation by virtue of the waste treatment system exclusion.

Furthermore, the Agencies have missed an opportunity to delete long

- suspended language included only in the NPDES version of the exclusion, and thus to bring greater clarity and certainty to the interpreta tion and application of the exclusion. The agencies should delete that suspended language to avoid confusion. (p. 21

- 22)

Agency Response: See summary response at 7.1

.

7.157 The agencies should carefully maintain the waste treatment exemption to ensure that

utilities and other businesses can continue to rely on their waste treatment conveyance and storage systems to comply with the water quality requirements of the CWA. The agencies should delete the proposed new comma in the exemption and the suspended

limitation in the current section 402 waste treatment exclusion. (p. 30)

73 See pre ceding note. This policy is described in the preamble to EPA's water transfer rule, which distinguishes between "a situation in which, for example, an industrial facility takes in water for the purpose of cooling some part of the facility itself' where "th e water used for cooling loses its status as a water of the United States" with transfers of water from one water body to another without an intervening industrial use. 73 Fed. Reg. 33697,33705 n.10 (June 13,2008).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

119 Agency Response: See summary response at 7.1

.

Colorado River Water Conservation District (Doc. #15070)

7.158 The River District supports the continuation of the explicit exemption for ditches, canals,

and retention/detention/treatment ponds that are part of wastewater treatment systems. We request that the proposed rule also include explicit exemptions for water management infrastructure related to permitted stormwater management and drinking water treatmen t systems. (p. 3)

Agency Response: See summary response at 7.1 . See also summary response at
7.4.4 regarding the agencies’ creation of an ex clusion for certain stormwater control

features.

Cleco Corporation (Doc. #15077)

7.159 The exclusion for waste treatment systems should be clarified.

The definition of Waters of the U.S. currently appears in EPA's NPDES regulations in 40 C.F.R. § 122.2. That definition section includes the waste treatment system exemption,

which reads as follows:

Waste treatment systems, including ponds or la goons designed to meet the requirements of the Clean Water Act (other than cooling ponds as defined in 40 C.F.R. 423.11 (m) which also meet the criteria of this definition) are not waters of the United States.

Both Agencies' definitions include the reference, in parenthesis, to "cooling ponds as defined by 40 C.F.R. 423.l1(m) which also meet the criteria of this definition." But, over thirty years ago, EPA withdrew the technology

- based cooling pond regulations and the accompanying definition that the parenthetical was designed to reference. See 45 Fed. Reg. 67,629, 68,328 (Oct. 14, 1980) (proposed); 47 Fed. Reg. 52,115, 52,290 (Nov. 19, 1982) (final). The Agencies propose to delete this parenthetical cross reference since it refers to an EPA regulatio n that is no longer in the Code of Federal Regulations. 79 Fed. Reg. at 22,217. Cleco agrees that this action is appropriate. (p. 2)

Agency Response: See summary response at 7.l.

7.160 The exclusion for waste treatment systems should be further clarified.

The proposed rule excl udes "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act." But the agencies retain, in 40 C.F.R. § 122.2, both: (1) the sentence proclaiming that the waste treatment exclusion "applies on ly to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States," and (2) the accompanying footnote explaining that EPA suspended the sentence in question in 1980. See 79 Fed. Reg. at 22,268. Although this language was suspended in 1980, Cleco is concerned that some may have erroneously applied the suspended language in the past and that others might do so in the future. Re taining this suspended language simply adds confusion. To provide clarity, the Agencies should delete the suspended sentence and accompanying footnote from 40 C.F.R. § 122.2. (p. 2

- 3)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

120 Agency Response: See summary response at 7.1

.

7.161 The proposed addition of a comma in the re gulatory text changes the meaning of the

waste treatment exclusion.

The current rule excludes: "Waste treatment systems, including ponds or lagoons designed to meet the requirements of the Clean Water Act." With the punctuation in this sentence, the qualif

ier "designed to meet the requirements of the Clean Water Act" modifies only the phrase "ponds and lagoons." But the addition of a comma in the Proposal's regulatory text changes the meaning of the waste treatment exclusion. Again, in the existing regulati ons, the phrase "designed to meet the requirements of the CWA" modifies the examples of "treatment ponds or lagoons." 33 C.F.R. § 328.3(a). The proposed rule's addition of a comma after "treatment ponds and lagoons" narrows the scope of the exclusion by re quiring that all "waste treatment systems," not just "treatment ponds or lagoons," be "designed to meet the requirements of the CWA" to qualify for the exclusion. This punctuation change could be interpreted as a substantive change to the provision. It can be read to broaden the reach of the qualifying language by applying it to all waste treatment systems. Under this reading, all systems, not just "ponds and lagoons" to which the qualification currently applies, would have to be "designed to meet the requi rements of the Clean Water Act" in order to fall within the exemption. Cleco encourages the Agencies to remove the new comma inserted in the Proposal. (p. 3)

Agency Response: See summary response at 7.1

.

7.162 Waste

- treatment system ditches should be included in the exemption.

Ditches are often a necessary component of waste treatment systems. Historically, the waste treatment system exclusion has been properly interpreted and applied to include all of the drains and ditches that flow to sumps, lagoons, and other ponds, or whose contents are eventually pumped or discharged to a pond exempted under the waste treatment systems (e.g., ash ponds) and from there discharge to jurisdictional waters. Agencies should clarify in the final rule that ditches that are part of a waste treatmen t system are covered by the waste treatment system exclusion. (p. 3)

Agency Response: See summary response s at 7.1 and 7.4.2

.

7.163 An exemption should be added to the Proposal to clarify ponds and impoundments used for raw water storage and transfer are not Waters of the U.S.

Raw water and other service ponds are used in facilities to store rain water, stormwater runoff, and water withdrawn from other water bodies, for eventual use by the facility. For those ponds that do not qualify as waste treatment systems, classifying this type of man

made water feature as a Waters of the U.S. could have important and costly impacts. For example, a particular impact could be a raw water storage pond falling under classification as a Waters of the U.S. could fall under 316(b) regulations for cooling water intake structures. Imposing section 316(b) requirements on cooling water withdrawals from ponds and reservoirs purpose

- built to supply water for steam electric plants, would impose enormous costs without any corresponding environmental benef it. To avoid substantial and unnecessary impacts of this kind, Cleco requests that the Agencies add an exemption to clarify that ponds and impoundments used for raw waterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

121 storage and transfer are not Waters of the U.S., so as to allow their continued use w ithout the creation of issues associated with water transfer. (p. 3

- 4)

Agency Response: See summary response at 7.1

. See also the summary response

at 7.3.2 regarding exclusion o f certain cooling ponds

.

NiSource Inc. (Doc. #15112)

7.164 The agencies should address which features and waters can be considered a waste treatment system. Moreover, the agencies should clarify that all on

- site management of water, including transport, storage, treatment, and use, are non

- jurisdictional. Any discharges into waters of the U.S. tha t result from these activities are already covered under section 402 of the Act. The agencies should engage with stakeholders that rely on the waste treatment exclusion to understand the confusion and unpredictability that

surrounds this exclusion. After h aving these critical stakeholder discussions, the agencies should propose a revised rule that addresses the waste treatment exclusion and provides some much needed clarity for regulators and the regulated public. (p. 7)

Agency Response: See summary response at 7.1

. See als o summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

Michigan Manufacturers Association (Doc. #15170)

7.165 The agencies state that they do not propose any changes to the exclusion for waste treatment systems, but the applicability of this exclusion has been anything but clear and agency interpretation of the scope of the exclusion has changed over time. Reliance on

the waste treatment exclusion i s critical for MMA’s members. The agencies should address which features and waters can be considered a waste treatment system. Moreover, the agencies should clarify that all on

- site management of water, including transport, storage, treatment, and use, ar e non

- jurisdictional. Any discharges into waters of the U.S. that result from these activities are already covered under section 402 of the Act. The agencies should engage with stakeholders that rely on the waste treatment

exclusion to understand the confu sion and unpredictability that surrounds this exclusion. After having these critical stakeholder discussions, the agencies should propose a revised rule that addresses the waste treatment exclusion and provides some much needed clarity for regulators and t he regulated public. (p. 4

- 5)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain cooling ponds and wastewater recycling and stormwater control features.

Ohio Utility Group (Doc. #15246)

7.166 Unde r the Ohio Revised Code, "treatment works" are defined as "any plant, disposal field, lagoon, dam, pumping station, building sewer connected directly to treatment works, incinerator, or other works used for the purpose of treating, stabilizing, blending,

c omposting, oz holding sewage, sludge, sludge materials, industrial waste, or other wastes, except as otherwise defined." R.C. 6111.01(F). In addition, "disposal system" is defined as "a system for disposing of sewage, sludge, sludge materials, industrial w aste,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

122 or other wastes and includes sewerage systems and treatment works." R.C. 6111.01(G). Under Ohio's regulations, treatment works and disposal systems are excluded from the

definition of "surface waters of the state" or "water bodies." Ohio Adm. Code 37 45

- 1

- 02(13)(77) ("Surface waters of the state" or "water bodies" mean all streams, lakes, reservoirs, ponds, marshes, wetlands or other waterways which are situated wholly or partially within the boundaries of the state, except those private waters which d o not combine or effect a junction with natural surface or underground waters. Waters defined as sewerage system, treatment works or disposal system in section 6111.01 of the

Revised Code are not included .") (emphasis added). However, under the proposed

de finition, some treatment works or disposal systems may be considered "waters of the United States." (p. 2)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain cooling ponds and wastewater

recy cling and stormwater control features.

7.167 While the rule affirms that there is still an exclusion of "waste treatment systems," OUG would like U.S. EPA to confirm that the treatment systems defined under R.C. 6111.01

still fall within the exclusion of "waste treatment systems" because a reading of this broad definition of "tributary" appears to broaden the definition and could cover "treatment works" and "disposal systems," which are not subject to Water Quality Standards. (p. 3)

Agency Response: See summary response at 7.1

.

7.168 The Utilities have also had mixed results with the Corps on whether small streams that drain in ash ponds are jurisdictional. In some instances, the Corps has determined that since an ash pond had a nexus with a water of the United States, the stream was jurisdictional. In other instances, the inlet stream was deemed non

- jurisdictional. Under the proposed rule, it is likely that all inlet streams of this nature w ould be classified as a

water of the United States... (p. 3)

Agency Response: See summary response at 7.1 . See als o Compendium 8

– Tributaries.

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407)

7.169 For the first time, the proposed rule extends the concept of jurisdiction by virtue of adjacency to non

- wetland waters. Essentially all waters within the floodplain or riparian area of a jurisdictional water body or waters that have a shallow subsurface hydrological connection to a jurisdictional water body, have a significant nexus and will be jurisdictional by rule.

The proposed approach is certain to swe ep in many features that have only remote and insubstantial connections with traditional navigable waters. Waters that used to be considered “isolated” and therefore beyond the scope of CWA jurisdiction will now be “adjacent” and the proposed “shallow subs urface hydrologic connection or confined subsurface hydrologic connection” language will be used to assert jurisdiction over any wet area, including on

- site ponds and impoundments.

Such unbounded jurisdiction would have major impacts for countless industri al facilities that rely on industrial earthen settling basins for their operations. For example, our OakClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

123 Creek Power Plant has several DNR

- approved basins that are within several hundred feet of Lake Michigan. It is unclear what the jurisdictional result w ill be when a single water, such as a settling basin, is arguably included in the scope of the rule as a result of adjacency, and also expressly excluded by virtue of coverage under one of the categorical exclusions in 40 C.F.R. § 230.3(t) or § 232.2(2), s uch as the waste treatment exclusion, discussed below. The solution is for the rule to clearly exclude these types of facilities. The agencies should revise the proposed rule such that only wetlands can be jurisdictional by virtue of adjacency. (p. 5

- 6)

Agency Response: Se e summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features. See also Compendium 3 (Adjacent Waters) and Compendium 5 ( Significant Nexus )

.

7.170 D. The Waste Treatment Exclusion is Unclear

The agencies should address which features and waters can be considered a waste treatment system. Moreover, the agencies should clarify that all on

- site management of

water , including transport, storage, treatment, and use, are non

- jurisdictional. Any discharges of pollutants into waters of the United States that result from these activities are already covered under section 402 of the CWA. The agencies should engage with

st akeholders that rely on the waste treatment exclusion to understand the confusion and unpredictability that surrounds this exclusion. After having these critical stakeholder discussions, the agencies should propose a revised rule that addresses the waste t reatment exclusion and provides some much needed clarity for regulators and the regulated public. (p. 6)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds,

and wastewater recycling and stormwater control features.

SCANA Services, Inc. (Doc. #15660)

7.171 The proposed rule includes a change in punctuation in the waste treatment system exclusion. This change (the addition of a comma after “ponds and lagoons”) could be interpreted to include all waste treatment systems, instead of just ponds and lagoons. Clarification is needed here to address whether a change in scope is intended. (p. 2)

Agency Response: See summary response at 7.1

.

Lower Colorado River Authority (Doc. #16332)

7.172 The Prop osed Rule includes an exclusion of "waste treatment systems, including treatment pond or lagoons, designed to meet the requirements of the Clean Water Act." 79 Fed. Reg. at 22,199. According to EPA and USAGE, the Agencies "propose no change to the exclusio n for waste treatment systems designed consistent with the requirements of the CWA." 79 Fed. Reg. at 22,189. LCRA requests that EPA and USAGE confirm that this exclusion covers waste treatment systems such as those in place at electric generation utilities . (p. 4)

Agency Response: See summary response at 7.1

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

12 4 Seminole Electric Cooperative, Inc. (Doc. #16363)

7.173 The amorphous yet undeniably expansionistic proposed definition of waters of the United States is especially problematic for steam electric utilities near jurisdiction al waters. A specific concern is that some waste treatment systems could be seen as being waters of the United States under the extremely broad language of the proposed rules. Examples of such waste treatment systems include cooling ponds, ash ponds, indus trial stormwater treatment ponds, rapid infiltration basins, settling basins, etc. Many such waste treatment systems very likely will be "adjacent" or "neighboring" under the proposed definition, due to Florida's unique, low gradient topography. If such wa ste treatment systems are considered to be waters of the United States, the regulatory consequences would be enormous. The treatment systems would no longer be able to serve their essential purpose (which is to treat wastewater), because EPA's regulations specifically state that waste assimilation and transport cannot be designated uses of waters of the United States. 40 CFR § 131.10(a).

Capturing such treatment works as waters of the United States would be a substandard policy choice, because permitted was te treatment systems cannot possibly be part of the aquatic inventory that Congress intended to protect under the CWA (in contrast to some wetlands, that do warrant protection). To assert that waste treatment systems are waters

of the United States would b e to negate their status as waste treatment systems. Although permitted waste treatment systems potentially could impact nearby jurisdictional waters, asserting jurisdiction is not a sensible approach to addressing potential impacts.

The current language o f the waste treatment system exclusion is not adequate to solve the problems created by the proposed rule revisions, because courts have tended to interpret exclusions very narrowly. Thus, there is an acute need for changes to the proposed rule

revisions. In that respect, Seminole supports the proposed definition of "waste treatment system" proposed in a separate comment letter by the Florida Electric Power Coordinating Group, Inc., Environmental Committee. (p. 3

- 4)

Agency Response: See summary response at 7.1

. See also sum mary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

Tri

- State Generation and Transmission Association, Inc. (Doc. #16392)

7.174 The waste treatment system exclusion is a long

- held regulatory provision implemented in various sections and programs of the CWA. The proposed rule stated that the Agencies "do not propose to address the substance of the waste treatment system exclusion." 74

However, as written , one such proposed change reads:

Current exemption (33 CFR 328.3(a)(8)):

... Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet th e criteria of this definition) are not waters of the

United States.

74 Id . at 2221 7. [ 79 Federal Register (FR) 22263 and 22217 ]Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

125 Proposed rule exemption (33 CFR 328.3(b)(l)):

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act.

The Agencies have significantly narrowed the exclusion by requiring that all waste treatment systems be "designed to meet the requirements of the Clean Water Act." Under the existing regulations, the phrase "designed to meet the requirements of CWA" only modifies the exampl es of "treatment ponds or lagoons." 75

The proposed language indicates that all waste treatment systems that were not designed to meet the requirements of the CWA, which could include, for instance, those that were designed to be zero discharge or to meet th e Surface Mining Control and Reclamation Act of 1977 (SMCRA) environmental protection standards would not be exempt from jurisdiction. By mandating that all waste treatment systems be designed to meet the requirements of the CWA, the Agencies' administrati ve change will have the unintended consequence of potentially denying application of the exclusion to many existing waste treatment systems. Because the Agencies' proposal is not intended to "address the substance" of or narrow this exclusion, the Agencies should remove the new comma from the regulatory text.

Tri

- State agrees with the Agencies' intent to not change the existing exclusion. Water

reuse is essential for Tri

- State operations in the arid to semi

- arid western United States, to preserve and protect important water resources. Ditches, onsite ponds, impoundments, and other water management features are used to control and recycle waters onsite, reducing freshwater needs. Some water management features are created on dry lands,

while others are created by impounding or modifying existing waters of the United States pursuant to Section 404 permits.

... In the alternative to removing the additional comma, Tri

- State urges the Agencies to revise the proposal to maintain the current exclusion for waste treatment systems designed for any water quality purpose. Accordingly, TriState suggests the following added boldface text to the proposed language for 33 CFR 328.3(b)(l) and equivalent sections in the other regulations proposed for revision. Waste treatme nt systems, including treatment ponds or lagoons~ such as hut not limited to those designed to meet the requirements of the Clean Water Act, Surface Mining Control and Reclamation Act or other water quality requirement of a Local, State or Federal agency. (p. 6

- 7 , 8 )

Agency Response: See summary response at 7.1

.

7.175 The Agencies should also clarify, either in the preamble or the regulatory text, that the term "treatment" for purposes of the waste treatment system exclusion includes, but is not limited to, methods such as waste water and stormwater retention, concentration (evaporation), settling, and active and passive treatments to remove or reduce contaminants. Power generation and mining companies, and other industries, uniformly rely on these forms of treatment to support th eir operations and ensure that, if there are any downstream discharges, they meet all applicable NPDES permitting requirements. Wastewater treatment does not necessarily require the addition of chemicals or the use of

75 e.g. , 33 C.F.R. § 328.3(a).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

126 complex technologies like ion exchange or reverse osmosis, and may consist of simply allowing suspended solids to settle prior to discharge under a NPDES permit. Natural processes, such as evaporation or pollutant uptake by aquatic vegetation, can effectively help solids settle out and even re move pollutants. Collecting and retaining wastewater

and stormwater runoff in on

- site water management features is a widely used form of waste treatment in many industries. In fact, construction of stormwater treatment ponds is often a required "best manag ement practice" to control and treat stormwater runoff and protect downstream WOTUS. Such required features should not be jurisdictional

WOTUS.

Finally, the Agencies should explicitly recognize that ditches, feeder streams, and other

on

- site waters carryin g flow to and from ponds and impoundments used to treat wastewater and stormwater are part and parcel of waste treatment systems at industrial facilities and are included in the waste treatment exemption. Such flowing waters are

necessary to convey wastewa ter and stormwater, and increase sediment and other pollutants settling prior to discharge to downstream WOTUS. Waste or process water that is conveyed to downstream jurisdictional waters requires an NPDES permit when a pollutant is added and, not surprisi ngly, NPDES permitting authorities have typically agreed that it would be senseless to require additional permits above the point of discharge to downstream jurisdictional waters. Nevertheless, to avoid potential confusion in the field concerning the scope of the waste treatment system exclusion, the Agencies should make it clear that the exclusion encompasses both ponds/impoundments and the related flowing waters within a facility project site that are necessary to convey waters to and from those ponds and impoundments as part of the treatment process. (p. 8)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control featu res.

Xcel Energy (Doc. #18023)

7.176 The agencies should also address which features and waters can be considered a waste treatment system. The agencies should engage with stakeholders that rely on the waste

treatment exclusion to understand the confusion and un predictability that surrounds this exclusion. After having these critical stakeholder discussions, the agencies should propose a revised rule that addresses the waste treatment exclusion and provides some much needed clarity for regulators and the regulate d public. (p. 8)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

Alliant Energy Corporate Service s, Inc. (Doc. #18971)

7.177 The WTS provision currently provides an exclusion from WOTUS for "Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act" 40 C.F.R. §122 .2. EPA and the Corps have acknow ledged that WTS are not jurisdictional and should remain excluded from any definitions of WOTUS and thus have "proposed no change to the exclusion for waste treatment systems designed consistent with the requirements of the CWA" (79 Fed. Reg. at 22,189). A lliant EnergyClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

127 supports the EPA and the Corps' desire to maintain the WTS exclusion. However, a subtle change to the WTS exclusion is noted in the proposed rule as follows: "Waste

treatment system s, including t reatment ponds or lagoons, desig ned to meet the requirements of the Clean Water Act" (7 9 Fed. Reg. at 22,193). Adding a comma after

" lagoons" implies that all systems, not just treatment ponds and lagoon s, would have to be "designed to meet the requirements of the Clean Water Act" in order to fall with in the

exclu sion. This creates confusion. For example, a facility may have a WTS with components constructed prior to and after the enactment of the CWA which are covered

under the same NPDES permit. It's unclea r how the proposed WTS exclusion lan guage, wi th the additional comma, would apply to such a facility.

In addition, the proposal provides little clarity on other lingering issues regarding implementation and interpretations of the WTS exclusion. Historically, the WTS exclusion has failed to provide c onsistent application or clear legal

- standing for utilities. Alliant Energy utilizes various structures, such as ash ponds, cooling ponds, stormwater

run

- off ponds, and various conveyances to manage and treat water at its generating

facilities. Periodic maintenance, such as dredging, is required for these systems to ensure efficient operation. Without the WTS exemption, these activities would require individual permitting, which would have compounding negative impacts to the facility's operational

status and availability. (p. 3)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

7.178 Considerations:

Alliant E nergy has the following suggestions for EPA and the Corps to consider when editing the proposal:

 Clearly define all WTS structures and water features, including influent conveyance and effluent discharge, on

- site storage, treatment, and site maintenance ( e.g., stormwater management) or otherwise "in

- use" waters, which are non

- jurisdictional and, therefore, covered by the WTS exclusion.

...

 Clarify that cooling ponds are considered Waste Treatment Systems and therefore,

excluded from WOTUS. See the Federal W ater Quality Coalition's comments for further detail. (p. 3

- 4)

Agency Response: See summary response at 7.1

. See also summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

South Carolina Public Service Authority (Doc. #18860)

7.179 The proposed rule asserts that "[t]he agencies propose no change to the exclusion for waste treatment systems designed consistent with the requirements of the CWA." The proposed rule provides that "[w]aste treatment systems, including treatment ponds or

la goons, designed to meet the requirements of the Clean Water Act" are not WOTUS. Despite the agencies' claims that nothing has changed with respect to this exclusion, theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

128 language of the proposed rule indicates that the agencies would interpret the waste

tr eatment exclusion to mean that no waste treatment system qualifies for the exclusion unless the system was designed consistent with the requirements of the CWA. Reliance on the waste treatment exclusion is critical. These systems and their discharges are

a lready covered under Section 402 of the CWA. Additional regulation under Section 404 would result in an unintended and unworkable regulatory outcome. There should be no question that systems for on

- site, or off

- site through legal rights

- of

- ways, transport, storage, treatment, and use of water, including stormwater, wastewater, drinking water, cooling water, process water, and raw water are not regulated under Section 404.

These comments are also applicable to stormwater systems operating under MS4s and/or

l ocal ordinances, and systems handling stormwater discharges from construction activity. Regulation of these systems as WOTUS would be unmanageable and would have direct effect on essentially all of our customers. (p. 4

- 5)

Agency Response: See summary response at 7.1

. See a lso summary responses at 7.3.2, 7.4.2, and 7.4.4 regarding exclusion s for certain settling basins, cooling ponds, and wastewater recycling and stormwater control features.

Center for Biological Diversity, Center for Food Safety, and Turtle Island Restorati on Network (Doc. #15233)

7.180 ...while we agree that waste treatment systems may be properly excluded if they are properly regulated under other sections of the CWA, we are concerned that where wastewater treatment systems include natural, restored, or manmade we tlands, swales, etc., the proposed rule does not clarify how discharges from those features will be addressed by EPA as WOTUS or as wastewater systems? (p. 10)

Agency Response: See summary response at 7.1

.

Natural Resources Defense Council et al. (Doc. #15437)

7.181 C. The Rule Should Limit the Current Exemption for Waste Treatment Systems

The proposal excludes “[w]aste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act” from being considered

Waters of the United Sta tes and therefore jurisdictional under the Act. This aspect of the proposal is unchanged from the current regulations. Because EPA and the Corps are not proposing to do anything new, the Federal Register notice accompanying the proposal

contains no comment ary or explanation for the exemption. 76

76 Indeed, the agencies appear to be trying to wall off this exemption from public comment and perhaps even judicial review. See 79 Fed. Reg. at 22,190 (discussing exemptions and stating, “the agencies do not seek comment on these existing regulatory provisions”). However, this exemption is centrally related to the core elements of this rulemaking, especially because many so

- called waste treatment systems would qualify as impoundments of jurisdictional waters, such that they should be categorically protected under this proposal. Moreover, as the history recounted in the text indicates, the exemption as currently implemented has not been subjected to notice

- and

comment rulemaking, such that it is only fair to the public that the provision be examined in this rulemaking. Accordingly, the agencies must carefully consider comments on this exemption, and should ensure that any final provision exempting waste treatment systems is consistent with the original intent of the regulatory provision.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

129 We have considerable concern with the agencies’ current practice with regard to this exemption for waste treatment systems. Since the exemption was written into the regulations, EPA and the Corps have attempted to exp and it to cover waters for which it plainly was not intended. In 1980, EPA amended its regulations to provide that:

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act ... are not waters of the United St ates. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States. 77

Clearly, the exclusio n was limited. In view of the fact that the Act “was not intended to license dischargers to freely use waters of the United States as waste treatment systems, the definition makes clear that treatment systems created in those waters or from their impoundme nt remain waters of the United States.” 78 Although the second sentence of the regulatory exclusion was suspended in order to dispel concerns that pre

- existing treatment systems would be retroactively brought into the regulatory system, 79 the exemption was no t meant to be a wholesale authorization of anything described as a “waste treatment system.” To the contrary, EPA‘s initial implementation of the rules rejected a sweeping interpretation; the agency argued in litigation that in

- stream disposal

of coal mini ng waste did not qualify for the exemption. 80

Unfortunately, over time, EPA and the Corps have reversed this interpretation, and now allow sources to use the regulatory exemption to treat new waste treatment facilities in protected waters as excluded from t he Clean Water Act. Under the agencies’ revised interpretation, a new impoundment of waters of the United States is able to qualify for the waste treatment system exclusion if it is established via a section 404 permit. 81 This position has since been upheld in litigation. 82

We strongly oppose this approach

– nothing is more inconsistent with the basic premise of the Clean Water Act and its foundational goal of eliminating discharges of pollutants

77 W.Va. Coal Ass’n v. Reilly , 728 F. Supp. 1276, 1289 (S.D. W.Va. 1989) (quoting 40 C.F.R. § 122.3 (1980)).

78 Id . (quoting 45 Fed. Reg. 33,298 (May 19, 1980)).

79 Id . (citing 45 Fed. Reg. 48,620 (July 21, 1980)).

80 Id . at 1289

- 90 (deferring to EPA‘s interpretation that treatment ponds were regulated “impoundments,” not excluded “waste treatment systems”). See also Memorandum from Marcia Williams, EPA Office of Solid Waste Director, to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B (Apr. 2, 1986) (“EPA applies a standard which treats newly created impoundments of waters of the U.S. as ‘waters of the U.S.,’ not as ‘waste treatment systems designed to meet the requirements of the CWA,’ w hereas impoundments of ‘waters of the U.S.’ that have existed for many years and had been issued NPDES permits for discharges from such impoundments are ‘wastewater treatment systems designed to meet the requirements of the CWA’ and therefore are

not ‘wate rs of the U.S.’”), available at http://yosemite.epa.gov/osw/rcra.nsf/documents/4BD7508AD59EA15F852565DA006F0A63

. 81 Memorandum from LaJuana S. Wilcher, EPA Assist ant Administrator, to Charles E. Findley, Director, Water Div., Region X, U.S. Army Corps of Eng‘rs, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 1992); see also State Program Requirements; Approval of Application to Administer the NPDE S Program; Texas, 63 Fed. Reg. 51,164, 51,183

- 84 (Sept. 24, 1998); U.S. EPA, Guiding Principles for Constructed Treatment Wetlands at 16 (Oct. 2000), available at http://water.epa.gov/type/wetlands/constructed/upload/guiding

- principles.pdf.

82 See Ohio Vall ey Envtl. Coal. v. Aracoma Coal Co. , 556 F.3d 177, 211

- 16 (4th Cir. 2009) (upholding the agencies’ interpretation).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

130 into waterways 83 than allowing polluters to convert the nation’ s waters into waste dumps. The agencies should use the opportunity of this rulemaking to explicitly limit the application of the waste treatment systems exemption to pre

- existing facilities. (p. 58

- 60)

Agency Response: See summary response at 7.1

.

Waterkeeper Alliance et al. (Doc. #16413)

7.182 IX. WASTE TREATMENT SYSTEMS SHOULD NOT BE CATEGORICALLY

EXCLUDED FROM THE DEFINITION

A. History of the Waste Treatment System Exclusion

On May 19, 1980, EPA issued a final rule that made clear that waste treatment systems created by impou nding "waters of the United States" are not exempt f rom regulation

under the CWA. 84 Specifically, the rule stated:

[w]aste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 C.F.R. § 423.11(m) which also meet the criteria of this definition) are not waters of the

United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal

are a in wetlands) nor resulted from the impoundment of waters of the United

States. 85

In response to industry pressure, however, EPA suspended the final sentence of the regulation, which states that "[t]he exclusion applies only to manmade bodies of water

whic h neither were original created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United Stat es," just a

few months later. 86

EPA expressly cited the utility industry's concern that they wou ld now have to obtain an NPDES permit to discharge into existing coal ash dumps that were created by impounding "waters of the United States" as part of its justification for susp ending this part of the rule. 87 At that time, EPA claimed that this was a temp orary suspension and promised to "promptly [] develop a revised definition and to publish it as a proposed rule for public comment. At the conclusion of that rulemaking, EPA [stated] it w[ould] amend the rule, or terminate the suspension." 88

EPA never follo wed through on its promise to address this important issue, allow the public an opportunity to provide comments, and finalize a new regulation or terminate the suspension. EPA, along with the Corps, is now proposing to formally codify the waste

83 33 U.S.C. § 1251(a)(1) (“it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985”).

84 45 FR 33,290, 33,424 (May 19, 1980)

. 85 Id . at 33,424 (emphasis added).

86 45 Fed. Reg. 48,620, 48,620 (July 21, 1980).

87 Id

. 88 Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

131 treatment s ystem exclusion without providing notice and comment. 89 In the current proposed rule, the agencies state that they are not accepting public comment on the waste treatment exclusion because they maintain they have proposed no changes to the waste

treatment s ystem exclusion. 90 Instead of making good on the promise it made over thirty

years ago, EPA is now attempting to evade compliance with the CWA and Administrative Procedures Act by bootstrapping the impermissible exclusion onto the

"waters of the United Stat es" rule without notice and comment.

B. Coal Ash Surface Impoundments

This exclusion has had and will continue to have serious consequences for our nation's waters if the agencies finalize the proposed waste treatment exemption. For example, it

has been a common practice for the utility industry to impound streams and rivers to

cr eate waste dumps for coal ash 91 and other wastes associated with coal

- fired power plants. In fact, EPA cited the utility industry's concern about coal ash impoundments as

one of the primary reasons EPA suspended the sentence making clear that permits are required for discharges into a waste treatment system created by impounding waters of

the United States. 92 Coal

- fired power plants generate millions of gallons of wastewater

loaded wi th toxic pollutants like arsenic, boron, cadmium, chromium, lead, mercury, and selenium into our rivers, lakes, and streams each year. This pollution is discharged directly from the power plant; flows from old, unlined surface impoundments or "ponds"

that many plants use to store toxic slurries of coal ash and smokestack scrubber sludge; and seeps from unlined ponds and landfills into ground and surface waters. EPA

estimates that at least 5.5 billion pounds of pollution are released into the environment by

coal

- burning power plants every year. 93 Coal

- burning power plants are responsible for at

least 50 to 60 percent of the toxic pollutants discharged into waters of the U.S

- more than the other nine top polluting industries combined

. 94

Coal combustion wastewater s contain a slew of toxic pollutants that can be harmful to humans and aquatic life in even small doses. Due to the bioaccumulative nature of many of these toxins, this pollution persists in the environment, and even short

- term exposure can result in long

- term damage to aquatic ecosystems. In short, coal plant water pollution has serious public health consequences and causes lasting harm to the environment. According to EPA, power plant pollution has caused over 160 water bodies not to meet

state water qual ity standards, prompted government agencies to issue fish consumption advisories for 185 waters, and degraded 399 water bodies across the country that serve as

pu blic drinking water supplies. 95

89 See 79 Fed. Reg. 22,188, 22,189 (Apr. 21, 2014).

90 79 Fed. Reg. at 22,190.

91 Coal combustion waste or coal ash are wastes "from the combustion of coal in power plants and captured by pollution control technologies, like scrubbers." U.S. Envtl. Prot. Agency, Coal Combustion Residuals

- Proposed Rule, http://www.epa.govjoswjnonhazji ndustrialjspecialjfossiljccr

- rulej (last visited Nov. 12, 2014).

92 45 Fed. Reg. at 48,620.

93 EPA, Environmental Assessment for the Proposed Effluent Limitation Guidelines and Standards for the Steam Electric Power Generating Point Source Category 3

- 14 (Apr . 2013), Docket No. EPA

- HQ

- OW

- 2009

- 0819

- 2260 [hereinafter EA].

94 Id . at 3

- 13.

95 http://water.epa.gov/scitech/wastetech/ guide/steam

- electric / proposed.cfm.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

132 Utilities in other states have also created coal ash dumps by i mpounding or burying a waters of the United States. For example, the FirstEnergy Little Blue Run impoundment in Pennsylvania, the nation's largest coal ash impoundment, was created by damming Little Blue Run stream. The Pennsylvania Department of the Envir onment took enforcement action for widespread pollution caused by this leaking impoundment and recently ordered a $169 million dollar cleanup and closure of Little Blue Run.167 Although EPA claims that the waste treatment exclusion is not a wholesale exemp tion from compliance with the CWA because they interpret it to apply only to impoundments that had been in existence for many years at the time it first suspended the final sentence of the definition, the plain language of the regulation includes no grandfather provisions or other limiting language related to the age of the impoundment. Further, EPA appears to be backtracking on this interpretation to allow new impoundments to claim the exemption so long as they obtain a § 404 permit. In short, EPA is proposing to codify a regulation that creates a gaping hole in the CWA and authorizes utilities and industrial

operators to use our nation's waters as their own private sewers

- all while refusing to follow notice and comment requirements of the CWA and the Administrative Procedures

Act. (p. 61

- 64)

Agency Response: See summary response at 7.1

.

Association of State Floodplain Managers, Inc. (Doc. #19452)

7.183 6. The proposed rule includes language reiterating current exemptions for waste treatment systems. However, the regulation of natural or artificial waters that are used to convey or treat stormwater is not clear; this is a long standing issue that is further complicated by the proposed rule.

Regulations and exemptions for waters conveying stormwater should be clarified in th e final rule and in implementing guidance. In addition, any distinctions between §404 dredge and fill requirements, and the regulatory scheme under §402

– including

stormwater treatment

– should be clarified.

... It is sometimes unclear whether cooling ponds are “waste treatment systems” or treated as such, particularly when a cooling pond is located in the jurisdictional water (i.e. mangroves).

... (p. 9)

Agency Response: See summary response at 7.1

. See also summary responses at
7.3.2 and 7.4.4 regarding exclusion s for certai n cooling ponds and stormwater
control features.

The Association of State Wetland Managers (Doc. #14131)

7.184 7. The proposed rule includes language reiterating current exemptions for waste treatment systems. However, the status of regulation of natural or arti ficial waters that are used to convey or treat stormwater is not clear. This is a long standing issue that is further complicated by the proposed rule.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

133 Regulations and exemptions for waters conveying stormwater should be clarified in the

final rule and in implementing guidance. In additions, any distinctions between §404 dredge and fill requirements, and the regulatory scheme under §402

– including

stormwater treatment

– should be clarified.

 The basic underlying question of whether stormwater collection an d treatment systems are considered to be wastewater treatment systems must be clarified. In some circumstances, artificial stormwater treatment ponds have reportedly been identified by federal agency staff as wastewater systems, but in other cases they hav e been

treated as waters of the United States. Situations where natural waters are used to collect, store, convey, or filter stormwater become even more complicated. It should be noted that a regulatory system that works for dredge and fill activities may not be efficient for §402 permitting, and vice versa. Therefore it is likely that other regulatory tools

– including exemptions (e.g. for maintenanc e), general permits, and

so on

– may be needed to effectively accommodate both program areas.

 Urban agencies are concerned with MS4 stormwater collection systems and the extent to which these systems may become subject to §404 permitting.

 It is sometimes unclear whether cooling ponds are “waste treatment systems” or treated as such, particularly when a cooling p ond is located in the jurisdictional water (i.e. mangroves).

 A number of questions have been raised regarding jurisdiction over natural waters used to convey and filter stormwater. In some instances, these waters were used to convey stormwater prior to reg ulation under the CWA. Some of these waters are and should remain jurisdictional particularly when they are part of the natural stream and waterbody system that existed historically.

 The distinction between wetlands or other waters that store or convey sto rmwater, and those wetlands used specifically to treat or filter stormwater, also raises questions regarding the scope of the wastewater system exemption

 Finally, ASWM recognizes that the §402 and §404 programs have distinctly different goals and requireme nts as applied to stormwater management. Therefore, we urge that EPA recognize these distinctions in the final rule and in subsequent guidance. (p. 8)

Agency Response: See summary response at 7.1

. See also summary responses at
7.3.2 and 7.4.4 regarding exclusion s for certa in cooling ponds and stormwater
control features.

Caloosahatchee River Citizen’s Association (Doc. #4711.2)

7.185 Urban waste treatment systems. In our local watersheds, approximately 200,000 dwellings process their sewage through septic tanks and unregulated “package plant” processors. Poorly treated effluent flows into our drainage canals and thence into formal

tributaries of waters of the Unite d States. This effluent contains fecal bacteria as well as trace amounts of mercury and other metals that have been disposed in a household. The Caloosahatchee River has demonstrated discernible levels of dissolved pharmaceutical products that are not remo ved by wastewater treatment or septic tanks. Nutrient pollutionClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

134 – nitrogen and phosphorus from human sources

– is thought to be equal or greater than nutrient pollution from animal agriculture. Yet the presence of nutrient pollutants, metals, and pharmaceu ticals that originate from human wastes and disposals is categorically

untouchable due to the exclusion of urban waste waters.

One primary purpose and function of the CWA is to prevent the discharge of biological and medical wastes, sediments, nutrients, a nd all other forms of pollutants into the “waters of the United States,” because these pollutants endanger the nation's public health, drinking water supplies, shellfish, fin fish, recreation areas, etc. Because the entire tributary system of the tradition al navigable waters or the territorial seas is interconnected, pollutants that are dumped into any part of the tributary system eventually are washed downstream to traditional navigable waters, interstate waters, or the territorial seas where those polluta nts endanger public health and the environment. The significant nexus relating to pollution transport (or prevention of such transport) from all tributaries of traditional navigable waters and the territorial seas to their

downstream waters in and of itsel f justifies the assertion of CWA jurisdiction including all tributaries by rule. (p. 3

- 4)

Agency Response: See summary response at 7.1

.

Earthjustice (Doc. # 14564 )

7.186 III. WASTE TREATMENT EXCLUSION

Earthjustice strongly objects to the proposal to retain the “waste treatment system” exclusion, particularly given that EPA has never allowed for public notice and comment

on the current version of this section of the rule. EPA lacks authority to exempt waters of

the U.S. from the protections of the Clean Water Act. This exclusion is a major affront to

the Clean Water Act and should be deleted. If not, at a minimum EPA must add a provision in the text of the rule explicitly barring its application to waters of the U.S. If this exclusion is retained, it can only be applied to manmade waste treatment systems constructed in uplands that are not waters of the U.S. As it stands, the waste treatment system exclusion contravenes the clearly expressed congressional intent to protect all waters of the U.S., including impounded waters, and it therefore fails Step One of

Chevron . Moreover, it is an unreasonable and therefore impermissible interpretation under Step Two, and also does not represent reasoned decisionmaking supported by the

record.

In various parts of the country

— mountainous regions of Appalachia, Iron Range states in the Great Lakes, mining and agricultural areas of the west and in Alaska

— the “waste

treatment system” exclusion is routinely invoked by federal and state agencies to allow the impoundment of natural streams or wetlands, or the filling or excavation of lakes and wetlands, to drain runoff from surface mines and/or to hold tailings or ove rburden from mining operations. 96 Playa lakes have been used as animal waste retention ponds for

96 See Bernhardt and Palmer, The Environmental Costs of Mountaintop Mining Valley Fill Operations for A quatic Ecosystems of the Central Appalachians , Ann. N.Y. Acad. Sci. 1223, 39

– 57, at 43 (2011).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

135 conf ined animal feeding operations. 97 Gener ally (almost always) the natural stream, lake,

or wetland would be considered a water of the U.S. under the existing or proposed rules.

Under current practice and the so

- called “waste treatment system” exception, the now impounded/excavated/filled waterbod y loses its status as a protected water under the

Clean Water Act, meaning that it does not have to meet basic water quality standards and the mining or coal or utility is free to dump pollutants into the stream or lake or wetland

without the basic protect ions and requirements of a Clean Water Act NPDES permit. These waste treatment ponds are often filled with things like toxic coal ash, acid

- leaching mine tailings or overburden from sulfide ore deposits that will also leach acid, selenium,

and other toxic metals. The ponds are often filled with sediment that can decimate spawning areas and that can affect light and temperature necessary for aquatic life. The impounded wastes typically are not isolated from waters of the U.S., and in most cases are designed to discharge directly into protected waters. The “treatment” that occurs in these impoundments is frequently a farce, and often consists of nothing more than allowing the heaviest sediments in the discharges to settle to the bottom of the pond while

the re maining untreated effluent is discharged into downstream waters. This practice causes serious water quality degradation downstream, even when discharges from the

waste ponds are covered by permits. Usually water quality constituents such as hardness,

condu ctivity, chlorides, sulfates, temperature and pH are adversely affected. This practice and result is utterly absurd and plainly contrary to law.

First, EPA and the Corps lack authority to adopt a regulation that empowers the agencies

to exclude waters that qualify as “waters of the U.S.” from statutory coverage under § 502(7), as well as from all of the safeguards that would otherwise protect that water under

the Clean Water Act. National Ass'n of Manufacturers v. Dept. of Labor , 159 F.3d 597, 600 (D.C. Cir . 1998) (“There is, of course, no such ‘except’ clause in the statute, and we are without authority to insert one.”). This exclusion goes well beyond EPA’s authority to interpret and apply the Act. Cf. Natural Res. Def. Council, Inc. v. Costle , 568 F.2d 13 69, 1372 (D.C. Cir. 1977) (striking down an EPA rule that attempted to exempt certain categories of point sources from the permit requirements of Clean Water Act section 402). Since EPA cannot exempt categories of point sources from NPDES permit requiremen ts, EPA lacks the authority to do so here by creating an artificial exclusion from the definition of waters of the U.S. Furthermore, the exclusion is breathtakingly broad, with no apparent limit on the use of our nation’s waters as waste dumps. This is

unl awful. See Nat’l Treasury Emps. Union v. Chertoff , 452 F.3d 839, 861 (D.C. Cir. 2006) (rejecting reading of a statute where “there is no stopping point”); Valdes v. United

States

, 475 F.3d 1319, 1328 (D.C. Cir. 2007) (rejecting a legislative interpretation that “appears to lack a limiting principle”).

T his exclusion is particularly arbitrary in light of the fact that, in almost all other circumstances, impoundments are assiduously guarded within the definition of waters of

the U.S. under subsection (s)(4). Earthjustice agrees that the inclusion of impoundments under (s)(4) is justified because “as a legal matter an impoundment of a ‘water of the

97 See EPA Region 6, National Pollutant Discharge Elimination System General Permit and Reporting Requirements for Discharges From Concentrated Animal Feeding Ope rations , 58 Fed. Reg. 7610, 7620

- 21 (February 8, 1993).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

136 United States’ remains a ‘water of the United States’....” 79 Fed. Reg. at 22201 (discussing S.D. Warren Co. v. Main e Bd. of Envtl. Prot. , 547 U.S. 370, 379 n.5 (2006)

and U.S. v. Moses , 496 F.3d 984 (9th Cir. 2007)). The only difference between the impoundments that are covered under subsection (s)(4) and those that are excluded through the artifice of the “waste treat ment system” exclusion is the fact that the latter are in tended to be filled with waste. 98 This is not a reasonable or permissible interpretation of

the Act, and it therefore also fails Step Two of Chevron . Nor does it constitute reasoned decisionmaking supported by the record.

Second, the proposal to retain the so

- called waste treatment system exclusion in its

current form violates the notice

- and

- comment requirements of the Administrative Procedure Act. 5 U.S.C. § 553. The history of the current rule sho ws that this exclusion was not originally intended to allow the current practice of using the nation’s waters as waste dumps. The 1980 regulatory definition of waters of the U.S. clearly provides that the waste treatment exclusion “applies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States.” Several months later, EPA published notice purporting to “suspend” the operation of this language, but not replacing it with anything else or further explanation. The omission of the language was never the subject of a notice and comment public rulemaking process despite the fact that it plainly significantly alters the law with respect to application of the protections of the Clean Water Act. Now the proposed rule specifically discourages members of the public from commenting on the proposal to retain the exclusion without the limiting language, stating that because the agencies “do not address” this and other exclusions they “do not seek comment” on them. 79 Fed. Reg. at 22190. Even assuming for the sake of argument that this exclusion is lawful under the Clean Water Act (and it is not), a decision to exclude natural bod ies of water from the definition of waters of the U.S. must be subject to public process. EPA and the Corps’ retention and application of this disastrous and unauthorized exclusion must be suspended pending proper process.

Third, it is simply ludicrous tha t this brazen give

- away to some of the most polluting industries is allowed. Providing this exclusion violates the very fundamentals of the Act to eliminate toxic discharges and to preserve and protect the physical, chemical and biological integrity of the nation’s waters. As noted repeatedly by the SAB members, even small tributaries, including wetlands and lakes that are in headwaters of watersheds, provide critical function and value in protecting downstream waters. Indeed, the proposed rule acknowledges that “scientific literature demonstrates that impoundments continue to significantly affect the chemical, physical, or biological integrity of downstream waters[,] traditional navigable waters, interstate waters, or the territorial seas.” 79 Fed. Reg. at 22201. To allow them to be obliterated by polluting industrial activity and then polluted further with wastes based on the fiction that they are no longer waters of the U.S. is completely contrary to every single comment regarding tributaries, wetlands, an d waters

98 The impoundments themselves are also sources of pollution. Regardless of whether impoundments and the pollutants therein (including heavier sediment) are intended to ‘stay put,’ runoff and overflow from these areas can pollute traditional navigable waters. See attached memo (“The Rapanos Plurality: ‘Mobile’ § 402 Pollutants and ‘Stationary’ § 404 Pollutants”), at 15

- 20.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

137 of the U.S. submitted by the members of the SAB and the general conclusions of the Connectivity Report. (Moreover, it does not appear that the SAB was given sufficient, or any, information about this exclusion and the way it is applied in practice to enable the SAB to advise EPA on the scientific merit or lack of merit underlying the waste treatment exclusion.) This further illustrates why the waste treatment system exclusion is unreasonable and therefore fails Step Two of Chevron, and does not con stitute reasoned decisionmaking supported by the record.

Earthjustice presses EPA to eliminate this exclusion entirely. At a minimum, EPA must provide full opportunity for notice and comment rulemaking for this polluting and damaging practice . (p. 14

- 17 )

Agency Response: S ee summary response at 7.1

.

Tulane Environmental Law Clinic, Tennessee Clean Water Network, et al. (Doc. #15123)

7.187 We...believe that the categorical exclusion of upland ditches and certain kinds of wastewater treatment systems incorrectly places many waters o f the United States beyond the reach of the Act. When upland ditches function as tributaries, they should be treated as tributaries whether they are manmade or not, and whether they are perennial or not. Likewise, when tributaries or adjacent waters are us ed in connection with wastewater

– whether in

- stream disposal of coal mining waste or impoundments used as lagoons or treatment ponds

– they should be treated as the tributaries and wetlands they are, and not swept into the exemption for man

- made wastewate r systems. (p. 2)

Agency Response: See summary response at 7.1

. Also section the ditches compendium (topic 6).

7.188 B. Waste Treatment Systems, Including Ponds or Lagoons Should Be Considered

Waters of the United States.

The proposed Rule exempts “[w]aste treatment systems, in cluding treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act” from being considered waters of the United States and therefore jurisdictional under the Act. This aspect of the proposal is unchanged from the current regulation s.
We have considerable concern with the agencies’ current practice with regard to this exemption for waste treatment systems. Since the exemption was written into the regulations, EPA and the Corps have attempted to expand it to cover waters for which it plainly was not intended. In 1980, EPA amended its regulations to provide that:

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of [the Act] ... are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States.” 99

Clearly, the exclusion was limited. In view of the fact that the Act “was not intended to license dischargers to freely use waters of the United States as waste treatment systems,

99 40 C.F.R. § 122.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

138 the definition makes clear that treatment systems created in those waters or from their impoundment remain waters of the United Stat es.” 100

Although the second sentence of the regulatory exclusion was suspended in order to dispel concerns that pre

- existing treatment systems would be improperly broug ht into the regulatory system, 101 the exemption was not meant to be a wholesale authorizatio n of anything described as a “waste treatment system.” To the contrary, EPA‘s initial implementation of the rules rejected a sweeping interpretation; the agency argued in litigation that in

- stream disposal of coal mining waste did not qualify for the

exemp tion. 102 Unfortunately, over time, a further exception has developed allowing

natural streams and lakes to be excluded from the definition of “waters of the United States” when an impoundment of waters of the United States is able to qualify for the

waste tr eatment system exclusion if it is establi shed via a section 404 permit. 103

We strongly oppose this approach

– nothing is more inconsistent with the basic premise of the Clean Water Act than allowing polluters to convert the nation’s waters into waste dumps. The agencies should use the opportunity of this rulemaking to explicitly limit the application of the waste treatment systems exemption to pre

- existing facilities. (p. 12

- 13)

Agency Response: See summary response at 7.1

.

Columbia Riverkeeper (Doc. #15210)

7.189 The “waste treatment exclusion” should be immediately rescinded. In practice, this loophole

— on which the public was never allowed to comment

— frequently allows the unregulated discharge of mine tailings and other waste into waters of the United States. (p. 2)

Agency Response: See summ ary response at 7.1

.

100 W.Va. Coal Ass’n v. Reilly , 728 F. Supp. 1276, 1289 (S.D. W. Va. 1989) (quoting 45 Fed. Reg. 33,298 (May 19, 1980)).

101 Id . (citing 45 Fed. Reg. 48,620 (July 21, 1980)).

102 Id . at 1289

- 90 (deferring to EPA‘s interpretation that treatment ponds were regulated “impoundments,” not excluded “waste treatment systems”). See also Memorandum from Marcia Williams, EPA Office of Solid Waste Director, to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B (Apr. 2, 1986) (“EPA applies a standard which treats newly created impoundments of waters of th e U.S. as ‘waters of the U.S.,’ not as ‘waste treatment systems designed to meet the requirements of the CWA,’ whereas impoundments of ‘waters of the U.S.’ that have existed for many years and had been issued NPDES permits for discharges from such impoundments are ‘wastewater treatment systems designed to meet the requirements of the CWA’ and therefore are not ‘waters of the U.S.’”), available at http://yosemite.epa.gov/osw/rcra.nsf/documents/4BD7 508AD59EA15F852565DA006F0A63.

103 Memorandum from LaJuana S. Wilcher, EPA Assistant Administrator, to Charles E. Findley, Director, Water Div., Region X, U.S. Army Corps of Eng‘rs, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 1992); see also State Program Requirements; Approval of Application to Administer the NPDES Program; Texas, 63 Fed. Reg. 51,164, 51,183

- 84 (Sept. 24, 1998); U.S. EPA, Guiding Principles for Constructed Treatment Wetlands at 16 (Oct. 2000), available at http://water.epa.gov/type/wetlands/constructed /upload/guiding

- principles.pdf. See also Ohio Valley Envtl. Coal. v. Aracoma Coal Co. , 556 F.3d 177, 211

- 16 (4th Cir. 2009) (upholding the agencies’ interpretation).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

139 Louisiana Environmental Action Network (Doc. #15377)

7.190 (2) The Agencies Must Clarify that the Wastewater Treatment Systems Exclusion Does Not Apply to Systems Built in Natural Streams and Lakes.

The Agencies must revise the categorical exclusion for waste treatment systems to clarify

- consistent with EPA’s long

- standing interpretation

- that it does not apply to systems

built in natural streams or lakes. See W. Va. Coal Ass'n v. Reilly , 728 F. Su pp. 1276, 1290 (S.D.W. Va. 1989) (upholding EPA’s interpretation that “the exclusion for treatment ponds was never meant to apply to treatment ponds constructed in United States waters.”), aff’d 932 F.2d 964 (4th Cir. 1991). Although the Proposed Rule does not purport to expand the current waste treatment system exclusion, it fails to clarify the ambiguity that EPA created in 1980 by suspending regulatory language that would have specifically limited the waste treatment system exception to manmade bodies of water.
See 45 Fed. Reg. 48620, 48620 (July 21, 1980). The suspended language remains in EPA’s current and Proposed Rule definition of “waters of the United States at 40 C.F.R. § 122.2, together with a note explaining the suspension remains in place:

Waste treatment systems . . . are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States. [See Note 1 of this section.]

... Note 1: At 45 FR 48620, July 21, 1980, the Environmental Protection Agency suspended until further notice in § 122.2, the last sentence, beginning “This exclusion applies ___” in the definitio n of “Waters of the United States.” This revision continues that suspension.

40 C.F.R. § 122.2 (emphasis added); 79 Fed. Reg. at 22268.

When it suspended the clarifying language, EPA affirmed its purpose “to ensure that dischargers did not escape treatment requirements by impounding waters of the United States and claiming the impoundment was a waste treatment system, or by discharging wastes into wetlands.” 45 Fed. Reg. at 48620; see 45 Fed. Reg. 33290, 33298 (May 19, 1980) (Prior Clean Water Act regulatio ns, like the Act itself, were "not intended to license dischargers to freely use waters of the United States as waste treatment systems."). Nevertheless, EPA agreed to re

- consider the language to avoid overbreadth. 45 Fed. Reg. at 48620; 07/15/1980, Memo R e: Suspension of portion of definition of "Waters of the United States" in Consolidated Permit Regulations (noting EPA “did not intend [the] result” that, “could require many power plants and oil refineries (among other industries) to apply for NPDES permi ts for discharges into their ash ponds and treatment lagoons.”) 104 EPA also stated that it “intends promptly to . . . amend the rule, or terminate the suspension.” 45 Fed. Reg. at 48620. EPA has still not amended the rule or terminated the suspension. The Pr oposed Rule is the opportunity to do so.

104 Available at http://www.epa.gov/npdes/pubs/owm560.pdf .Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

140 EPA’s failure to amend the rule has led to the sort of confusion that the Proposed Rule seeks to avoid. The prolonged limbo of suspension has reduced EPA’s clear regulatory mandate to interpretations requiring court intervention or agency guidance to confirm. See, e.g., W. Va. Coal v. Reilly , 932 F.2d 964, 1991 WL 75217 *5 (4th Cir. 1991) (“[W]e agree with the district court's conclusion that the in

- stream treatment ponds and the waters above such ponds fall within t he definition of ‘waters of the United States’ . . . and the EPA did not act beyond its statutory authority in regulating these waters.”); 10/25/2007, Memorandum for POA

- 1992

- 574 & POA

- 1992

- 574

- Z (Oct. 25, 2007) (“EPA and the Corps agree that the agencies’ designation of a portion of waters of the U.S. as part of a waste treatment system does not itself alter CWA jurisdiction over any waters remaining upstream of such system. Both the Corps and EPA believe that all the waters upstream and downstream of the tailings dam that were jurisdictional prior to the authorized activity and that qualify as jurisdictional waters of the U.S. under the Rapanos guidance are still subjec t to CWA jurisdiction . . . .”)

. 105 Moreover, guidance and court intervention have develop ed a further exception, declining to apply the exclusion to natural streams and lakes unless a U.S. Army Corps of Engineers § 404 permit authorized conversion of waters of the United States to a treatment system . See Ohio Valley Envtl.

Coalition v. Aracoma Coal Co. , 556 F.3d 177, 215 (4th Cir. 2009) (finding an exception when the Corps “exercises its § 404 authority to permit the use of a stream segment as part of the treatment system for fill runoff, [because] it has allowed the temporary

removal of these waters from the definition of ‘waters of the United States’ only after analyzing the impacts of creating the system and mitigating those impacts as necessary”) (citing Letter from Benjamin H. Grumbles, Asst. Administrator for the EPA, to the Hon.

John Paul Woodley, Assistant Secretary of the Army (Civil Works) (Mar. 1, 2006); Memo from LaJuana S. Wilcher, Asst. Administrator for the EPA, to Charles E. Findley, Director, Water Division, Region X, United States Army Corps of Engineers, on Clean Water Act Regu lation of Mine Tailings Disposal (Oct. 2, 1992)).

In short, to accomplish its purpose of clarity, the Agencies must revise the Proposed Rule to confirm that the wastewater treatment exclusion does not allow a discharger to convert any water of the United S tates into non

- jurisdictional waters by building an in

- stream treatment system. Indeed, the failure to “terminate the suspension” or amend the rule now that the opportunity is at hand may increase confusion. Notably, however, if the failure to

address the suspended language were to signal an expansion of the waste

- treatment system exclusion from the definition of “waters of the United States,” such a narrowing of jurisdiction would be arbitrary and capricious and unlawful as contrary to Congress’

stated int ent for the Clean Water Act. (p. 3

- 4)

Agency Response: See summary response at 7.1

.

Delaware Riverkeeper Network (Doc. #15383)

7.191 Comment 9: Waste Treatment System Exclusion: Section 328.3(b)(1)

105 Available at http://www.usace .army.mil/Portals/2/docs/civilworks/regulatory/cwa_guide/WTS_POA

1992

- 574_POA

- 1992

- 574

- Z.pdf .Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

141 Waste Treatment systems should not be excluded; especially those constructed in

f loodplains and wetlands, and that are subject to flooding or wall collapse. This exclusion was originally added as a footnote after finalization of the CWA, and has therefore never been subject to notice and comment. Because EPA did not follow proper due p rocess requirements, it is now obligated to have a public comment period on the exclusion of impoundment waters that are used as wastewater treatment. The proposed rule seeks to codify this exclusion without proper notice and comment and for this reason th e exclusion should not be included in the final rule. DRN does not support the Water Treatment Exclusion for procedural grounds and substantive grounds, especially when these types of facilities are constructed in floodplains. If such an impoundment floode d or was breached due to poor design or maintenance, the responsible party should be fined and ordered to clean up, but under the proposed rule the taxpayers would be responsible. That conclusion is untenable. (p. 5)

Agency Response: See summary response at 7.1

.

Tennessee Clean Water Network et al. (Doc. #16537)

7.192 6. Categorical exclusion of certain kinds of wastewater treatment systems incorrectly places many waters of the United States beyond the reach of the Act.

The proposed rule exempts "[w]aste treatment systems, inclu ding treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" from being considered waters of the United States and therefore jurisdictional under the Act. This aspect of the proposal is unchanged from the current regulations.

We have considerable concern with the agencies' current practice with regard to this exemption for waste treatment systems. Since the exemption was written into the regulations, EPA and the Corps have attempted to expand it to cover waters for which it pla inly was not intended. In 1980, EPA amended its regulations to provide:

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act ... are not waters of the United States. This exclusion applies only to manma de bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States." 106

Clearly, the exclusion was limited. In view of the fact the Act "was not intended to license dischargers to freely use waters of the United States as waste treatment systems, the definition makes clear that treatment systems created in those waters or from their impoundment remain waters of the United States." 107 Alt hough the second sentence of the regulatory exclusion was suspended in order to dispel concerns pre

- existing treatment systems would be improperly brought into the regulatory system, 108 the exempt ion was

not meant to be a wholesale authoriz at ion of anything described as a "waste treatment system." To the contrary, EPA's initial implementation of the rules rejecte d a sweeping

106 W. Va. Coal Ass'n v, Reilly , 728 F. Supp. 1276, 1289 (S.D.W.Va. 1989) ( quoting 40 C.F.R. § 122.3 (1980))

. 107 Id . (quoting 45 Fed. Reg. 33,298 (May 19, 1980))

. 108 Id . (citing 45 F ed: Reg. 48,620 (July 21, 1980))

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

142 interpretation; th e agency argued in litigation that in

- stream disposal of coal mini ng waste did not qualify for the exemption. 109 Unfort unately, over time, EPA and th e Corps have

reversed this inte rpretation, and now allow sources to use the regulatory exemption to

treat new wast e treatment facilities in protected wat ers excluded from the Clean Water Act. Under the agencies' revised interp retation, a new impoundment of waters of the United States is able to qualify for the waste treatment system exclusion if it is established via a section 404 permit. 110 This position has been upheld in litigation. 111

We strongly oppose this approach

- nothing is more inconsistent with the basic premise of the Clean Water Act than allowing polluters to convert the nation's waters into waste dumps. This threat is especially prominent in the Appalachian region of the state where coal mining companies can abuse thi s exemption. The agencies should use the opportunity of this rulemaking to explicitly limit the application of the waste treatment systems exemption to pre

- existing facilities. (p. 5

- 6)

Agency Response: See summary response at 7.1

.

Midwest Environmental Advocates (Doc. #16 645)

7.193 III. The categorical exclusion of waste treatment systems that includes those waters that were once waters of the U.S. is a blatant give away to the mining industry and is

inconsistent with the Clean Water Act.

Similarly, the waste treatment exclusion has no basis in science, sound policy or the law. The purpose of the Clean Water Act is to clean up our nation’s waters. “Congress enacted the law to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U. S. C. § 1251(a), and it pursued that objective by restricting dumping and filling in "navigable w aters," §§ 1311(a), 1362(12).” 112 This exclusion

— allowing waters that were once waters of the U.S. to become waste dumps for the mining industry

— is plainly inconsis tent with the goals of the CWA.

The waste treatment system started out as a narrow exception for constructed waste treatment systems that were not previously waters of the U.S. The EPA’s current

109 Id . at 1289

- 90 (deferring to EPA's interpretation that treatment ponds were regulated "impoundments," not excluded "waste treatment systems"). See also Memorandum from Marcia Williams, EPA Office of Sol id Waste Director, to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B (Apr. 2, 1986) ("EPA applies a standard which treats newly created impoundments of waters ofthe U.S. as 'wa ters of the
U.S.,' not as 'waste treatment systems designed to meet the requirements of the CWA,' whereas impoundments of 'waters of the U.S.' that have existed for many years and had been issued NPDES permits for discharges from such impoundments are 'wastewater treatment systems designed to meet the requirement of the CWA' and therefore are not 'waters of the U.S."'), available at http://yosemite.epa.gov/osw/rcra.nsf/documents/4110 7

508AD59EAl5F852565DA006FOA63.

110 Memorandum from LaJuana S. Wilcher, EPA Assistant Administrator, to Charles E. Find ley, Director, Water Div., Region X, U.S. Army Corps of Eng'rs, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 1992); see also State Program Requirements; Approval of Application to Administer the NPDES Program; Texas, 63 Fed. Reg. 51,164 , 51,183

- 84 (Sept. 24, 1998); U.S. EPA, Guiding Principles for Constructed Treatment Wetlands at 16 (Oct. 2000), available at http://water.epa.gov/type/wetlands/constrncted/upload/guiding

- principles.pdf.

111 See Ohio Valley Envtl. Coal. v. Aracoma Coal Co.

, 556 F.3d 177,211

- 16 (4th Cir. 2009) (upholding the agencies' interpretation).

112 Rapanos v. United States , 547 U.S. 715, 779 (2006).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

143 expansive definition of the waste treatment exclusion is not consistent with the initial rule as promulgated in 1980, which provided “that the waste treatment exclusion “applies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment o f

water of the United States.” 113 EPA later suspended operation of the part of this rule that made the exception inapplicable to waters of the U.S., but did not clarify its position through additional rulemaking. EPA has si nce taken the position that waters of the U.S. can lose CWA protection if they are turned into waste treatment systems. 114

Continuing the waste treatment exclusion is inconsistent with the purpose of the Clean

Water Act because it is too broad of a construct ion of the act’s language and goes beyond the scope intended in the initial exemption. First, “claims of exemption, from the...CWA broad pollution prevention mandate must be narrowly construed to ac hieve the purposes

of the CWA. 115 Second, the original exempti on was strictly limited to “se lf

- contained”

bodies of water. 116 Allowing mining companies or other polluters the license to impound navigable waters and create “self

- contained” ponds provides an indiscriminate license to pollute into any waters. The practica l effect of the proposed exclusion will frustrate the CWA’s purpose.

If the EPA continues to allow mining companies to turn our nation’s waters into dumping grounds, it will have serious and detrimental effects in Wisconsin. We are currently facing a propo sal by Gogebic Taconite, LLC to construct a very large, open

- pit iron ore

mine

— possibly over 4 miles long

— in the Penoke e hills of northern Wisconsin. 117 The site of the proposed mine is in the headwaters of Bad River watershed, between trout streams designat ed as Outstanding an d Exceptional Resource Waters. 118 Harmful pollution from heavy metals, including selenium among others, has been documented at other iron ore mines in the region, including the Empire and Tilden mines to th e north of this proposed mine. 119 Allowing Gogebic Taconite to use these pristine waters as dumping grounds is extremely concerning. (p. 6

- 7)

Agency Response: See summary response at 7.1

.

113 40 C.F.R. § 122.3 (1980).

114 79 Fed. Reg. 22188, 22217 (Apr. 21, 2014) (Proposed Rules) (providing that the proposed rule is consistent with the EPA’s “longstanding regulations” that excluded waste treatment systems from the CWA).

115 Northern California River Watch v. City of Healdsburg , 496 F.3d 993,1001 (9th Cir. 2007).

116 Id . at 1001

- 1002 (“The exception was meant to avoid requiring dischargers to meet effluent discharge standards for discharges into their own closed system treatment ponds.”).

117 Wisconsin Department of Natural Resources, Gogebic Taconite, LLC, potential mining project, available at http://dnr.wi.gov/topic/mi nes/gogebic.html.

118 See Wisconsin Department of Natural Resources, Gogebic Taconite, LLC, potential mining project, available at http://dnr.wi.gov/topic/mines/gogebic.html; see also Wisconsin Department of Natural Resources, Waters designated in 2006 as Ex ceptional or Outstanding Resource Waters (Oct 2006) (designating Bad River and Tyler Forks River as Outstanding Resource Waters), available at http://dnr.wi.gov/topic/SurfaceWater/oerw/list1006.pdf;

see also Gogebic Taconite, LLC Preapplication Notice to t he Wisconsin Department of Natural Resources (June 17, 2013), available a t http://dnr.wi.gov/topic/Mines/documents/gogebic/GTACPreapplicationNotice20130617.pdf.

119 Michigan Department of Environmental Quality, Update on Selenium Projects at Tilden and Empire Mines, Vol. 1 (Jan. 2010), available at http://www.michigan.gov/documents/deq/wrd

- npdes

- EmpireTilden

- Vol1_364698_7.pdf.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

144 WaterLegacy (Doc. #18017)

7.194 Mine Tailings Impoundments

Mine tailings impoundments impact the flow of navigable waters and impact water quality. Mine tailings are industrially processed and chemically dissimilar from excavated materials. Yet, they may be treated as fill and exempted from laws defining and requiring containment and treatment of wastes. Despite the potential ad verse impacts of mine tailings impoundments and their significant nexus with natural waters, the Clean Water Act has been interpreted to prevent their effective regulation.

An exemption from waters of the U.S. that may be appropriate for an impervious hold ing pond for a wastewater treatment facility is abhorrent to the purposes of the Clean Water Act if applied to an unlined tailings impoundment seeping into hundreds of acres of wetlands, streams or other natural waters. WaterLegacy proposes that the exempt ion for waste treatment systems from “waters of the United States” only apply to constructed impoundments that are isolated from natural waters and are part of a wastewater treatment system. We request this change in EPA’s proposed rule 40 C.F.R. § 230.03( t):

(t) The following are not “waters of the United States,” notwithstanding whether they meet the terms of paragraphs (s)(1) through (7) of this section

— (1) Waste treatment systems, including treatment ponds or lagoons, isolated from

natural waters that are part of a wastewater treatment system designed to meet the requirements of the Clean Water Act; (p. 2

- 3)

Agency Response: See summary response at 7.1

.

Clark Fork Coalition (Doc. #19539)

7.195 ...regarding the "waste treatment plant" exclusion retained in the proposed rule

- we urge you to re

- clarify that waste treatment system exclusion only applies to manmade waters, as EPA recognized in 1980. We are particularly concerned about mining companies who construct a tailings dam across wetlands or a river under a 404 permit

- and th en classify the previously clean and free

- flowing waters behind the dam as a "waste treatment system," rather than "waters of the United States." This loophole undermines the entire purpose of the Clean Water Act, encouraging destruction of critical waters hed ecosystems rather than prohibiting the use of our waters as a dumping ground for industry. (p. 2)

Agency Response: See summary response at 7.1

.

Water Environment Federation (Doc. #16584)

7.196 Spreading Grounds and Related Features of the Wastewater Treatment Process Should Be Expressly Exempted Under the Final Rule

As the proposed rule and existing practice acknowledge, waste treatment systems designed to meet the requirements of the Clean Water Act are not waters of the United States, and WEF wants to ensure that as part o f these proposed amendments spreading grounds/basins, treatment ponds/lagoons, and constructed treatment wetlands used as part of the wastewater process are subject to the same exemption. Since these facilities areClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

145 clearly part of the treatment process, pr oviding additional treatment, residence and settling prior to discharge, these facilities should be expressly recognized in the rule as falling under the Waste Treatment Exception.

In addition, many WEF members utilize spreading grounds or basins in order to facilitate groundwater replenishment; a vital part of water management throughout certain states. Others utilize artificially created effluent storage ponds as part of their treatment process. Many agencies maintain reservoirs or storage basins/ponds to store recycled water. These artificially created features and spreading grounds have not previously been defined or regulated as “waters of the United States,” and should remain separate. For this reason, the proposed rule should expressly include treatme nt ponds/lagoons, spreading grounds/basins, and constructed treatment wetlands within the scope of the Waste Treatment Exception, along with effluent storage reservoirs and recycled water storage facilities discussed previously. (p. 3)

Agency Response: See summary response at 7.1

. See also summary responses at
7.4.2 and 7.4.4 regarding the agencies’ creation of exclusion s for certain wastewater recycling and stormwater control features.

Robert J. Goldstein & Associates (Doc. #16577)

7.197 1) Waste treatment ponds or lagoons designed to meet CWA requirements: Some of these features were natural ponds, wetlands, or streams prior to being converted to stormwater or sanitary waste treatment. Features that were designed and legitimately permitted for this purpose should be exclude d from WOTUS, but natural waters that have become stormwater treatment ponds by default, due to land management activities that did not provide adequate stormwater management, should not be excluded.

I am aware that some organizations including municipalit ies, state transportation departments, and the stormwater engineering lobby are recommending that entire municipal stormwater drainage systems be excluded from WOTUS because they are “already regulated” under NPDES. However, many of these drainageways are modified natural streams (some of them quite large) with important aquatic functions. We should not exclude a stream from WOTUS simply because some portion of it is piped or channelized through a developed area as part of a MS

- 4 system. (p. 1)

Agency Response: S ee summary response at 7.4.4.

7.2. P RIOR C ONVERTED C ROPLAND (PCC)

Summary Response

In the rule, the agencies identify a variety of waters and features that are not "waters of the United States." In neither the proposed nor the final rule do the agencies make a change to t he existing exclusion for prior converted cropland.

The existing exclusion for prior converted cropland moves to paragraph (b)(2) of the rule and is unchanged. The agencies did not propose any changes to the exclusion for prior converted cropland. As a result, comments addressing the substance of the exclusion or its implementationClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

146 are outside the scope of this rulemaking and the rule does not reflect changes suggested in public comments. The agencies will continue to implement this exclusion consistent with current policy and practice

. In some instances, the agencies have provided information that maybe useful to a commenter, but this does not alter the scope of the rulemaking. In addition, some

issues that commenters raised are related to other exclusions identified under paragraph (b), and commenters should see those essays and responses for more detail

.

A number of commenters suggested changes to the existing exclusion for prior converted cropland. As previously stated, t hese comments are out side the scope of this rulemaking and the rule does not reflect changes suggested in public comments.

Comments included questions about dates the exclusion applied to . There was also a request to match definitions with other agencies including two comment ers who wanted the agencies to use
the USDA definition of PCC at 7 C.F.R. 12.2, specifically. Another commenter recommended using the definition at 58 Fed Reg, 45008, 45301, (Aug 25, 1993). One commenter recommended using procedures defined in RGL 90

- 0 7 an d then codified at 328.3(a)(8), (Page 2

- 3).

Several commenters requested that the exclusion be expanded and provided examples of recommended changes. One commenter did not want state or local/municipal/county governments to oppose additional oversight. Co mmenters suggested that PCC should always be

defined as non

-

jurisdictional regardless of any future change in use. Some expressed c oncern that PCC does not cover normal farming and wants a clearer statement. A c ommenter reques ted that an exemption for PCC also be developed for 402. Another commenter requested that prior converted forest lands be added to exemptions.

Conversely, some commenters felt the exclusion was too expansive. A commenter stated that PCC is a regulatory construct for the Food Security Act and does not reflect the ecological

functions or values of these lands. In addition, the y said that PCC should be able to be recaptured. Another comment requested that the 5 year abandonment provision be included in the agencies’ discussion of PCC

.

A few of the concerns appear to be misconceptions about how the exclusion has been used in the past and current practice concerning PCC , farmed wetlands, and the agricultural and silviculture exemptions . A commenter felt that the rule was a barrier to entr y into farming for new farmers. A commenter was worried that if they enrolled in NRCS programs such as CRP it would cause them to not meet the exemption because their land would be taken out of production. A

commenter was concerned that even if land contin ues in agricultural production but is sold or passed to next generation then would come under new restrictions. Another commenter was concerned that if prior converted cropland is excluded that cropland would be jurisdictional

. Another identified c oncern that the connectivity language used in the rule would allow some

PCC to be considered jurisdictional. Five commenters were concerned about the statement “Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency...” and felt that indicated that EPA will overturn a USDA determination of what

was “prior converted cropland. ” Another commenter asked for the number of times a determination of PCC has been overturned in the past. In contrast, some commenter s expressedClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

147 concern that the agricultural exemptions allow pollution to enter waters and cause problems for

natural communities. Again, the agencies did not propose and are not making any changes to the

PCC exclusion . Comments regarding implementation are beyond the scope of this rule.

Several comments in this section are also addressed in other sections of the response to

comments. Two commenters expressed concerns about irrigated crop lands. One suggested that irrigated lands should be exempt and that t he construction and maintenance of irrigation features should not need a permit. Another commenter wanted formerly irrigated lands brought back into production to also be considered exempt. Artificially irrigated areas that would revert to dry land

should application of water to that area cease are excluded from jurisdiction. Section 7.3.1 provides additional discussion. There were two comments related to ditches. One commenter requests that legacy ditches be added to exemptions. Another commenter asked if ditches through PCC regardless of hydrologic regime would also be exempt. For more discussion on ditches see compendium 6, and for tributaries see compendium 8.

Specific Comments

New Mexico Department of Agriculture (Doc. #13024)

7.198 The Federal Register noti ce for this proposed rule (in a footnote) states the Agencies use the Natural Resource Conservation Service (NRCS) definition of prior converted cropland for purposes of determining jurisdiction under the CWA (79 FR 22 189). The

NRCS defines prior converte d cropland as farm land that was:

 "Cropped prior to December 23, 1985, with an agricultural commodity (an annually tilled crop such as com);

 The land was cleared, drained or otherwise manipulated to make it possible to plant a crop;

 The land has continued to be used for agricultural purposes (cropping, haying or grazing);

 And the land does not flood or pond for more than 14 days during the growing

season." 120

NMDA is highly concerned with the exclusion of prior converted cropland , as it is currently identified, because it relies on the NRCS's use of 1985 as the year that farmland must have been used for agricultural purposes. This creates a clear barrier to entry and is further analyzed in the subsection "Barriers to Entry" in the "Economic Analysis" section below. NMDA requests that all agricultural land be excluded due to the fact that these lands are managed to provide food, fiber, and other necessary products

- regard less of whether the agricultural operation was established before or after 1985.

Also, several NRCS programs, such as the Conservation Reserve Program (CRP), incentivizes agricultural producers to take land out of production:

120 Natural Resource Conservation Service. "Wetland Fact Sheet

- Prior Converted Cropland." http://www.nrcs.usda.gov/wps/portal/nrcs/detail/vt/programs/?cid=nrcs142p2_010517

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

148 "In exchange for a yearly rental payment, fa rm ers enrolled in the program agree to remove environmentally sensi tive land from agricultural production and plant species that will improve environmental health and quality. Contracts for land

enrolled in CRP are 10

- 15 years in length. The long

- term goal of the program is to

re

- establish valuable land cover to help impr ove water quality, prevent soil erosion, and reduce loss of wildlife habitat." 121

Will being enrolled in con servation programs such as NRCS's CRP bar agricultural producers from th is exemption because the land in question has not "cont inued to be used

for a gricultural production" ?

Furthermore, even though the Federal Register notice for this proposed rulemaking claims the Agencies will use the NRCS's definition, the language of the proposed rule states the Agencies have "final authority regarding Clean Water Act jurisdiction." The Agencies have neglected to independently define prior converted cropland , which is contrary to logic given that EPA's claims of final authority over determining exclusions. Providing a clear definition would assist in offering consi stency for the regulated public in determining if their land will be considered prior converted cropland thus excluded from being jurisdictional. (p. 8)

Agency Response: See Section 7.2 summary response above. The existing exclusion for prior converted cropland is unchange d. As a result, such comments are outside the scope of this rulemaking and the rule does not reflect changes suggested in public comments.

7.199 Barriers to Entry

As previously detailed, the NRCS defines prior converted cropland as farmland that was "cropped p rior to December 23, 1985, with an agricultural commodity (an an nually tilled crop such as com) ; the land was cleared, drained, or otherwise manipulated to make it possible to plant a crop; the land has continued to be used for agricultural purposes (cropp ing, haying, or grazing); and the land does not flood or pond for more than 14 days during the growing season." 122

The explicit exclusion for "prior converted croplands" will create a barrier to entry for agricultural producers due to the NRCS cutoff date of 1985. Younger agriculturalists wanting to start their own operations will not be afforded the same opportunities as older, more established farmers or ranchers. The average age of agricultural producers in the United States is 58 years old; 123 implementing arbitrary requirements may prevent new fanners from entering the market. This barrier could have profound impacts on rural economies in addition to the nation's ability to provide enough agricultural goods for a growing population.

121 U.S. Department of Agriculture, Farm Service Agency. "Conservation Reserve Program." http://www.fsa.usda.gov/FSA/webapp?ar ea=home&subject=copr&topic=crp

. 122 Natural Resource Conservation Service . "Wetland Fact Sheet

- Prior Converted Cropland." http://www.nrcs.usda.gov/wps/portal/nrcs/detail/vt/programs/?cid=nrcs142p2_010517.

123 U.S. Department of Agriculture. "2012 Census of Agriculture." http://www.agecensus.usda.gov/Publications/2012/Full_Report/Volume_1_Chapter _1_US/.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

149 It is also contrary to m any policies of the United States Department of Agriculture, which aim to provide incentives to young people to get involved in agriculture and could jeopardize the future of fanning.

Similarly, in reference to the "continuous operation" provision, NMDA re quests clarification on whether land use restrictions near a newly designated Waters of the U. S. will change when agricultural lands are either sold or passed from one generation to the next when the use for the land is maintained as agricultural. If rest rictions are put into place or if major permitting would be required with new ownership, it would create a barrier to entry for new agricultural producers, especially since it is not uncommon for agriculture operations to be passed on from one generation t o the next. (p. 21

- 22)

Agency Response: See previous response.

Gila River Indian Community (Doc. #13619)

7.200 The Community has historically relied upon agriculture for sustenance and commerce. Our ability to farm the Reservation was crippled when upstream water users diverted the flow of the Gila River. However, enactment of the Arizona Water Settlements Act of 2004 has reinvigorated our vibrant agricultural economy by facilitating the restoration and expansion of irrigation canals and related infrastructure that carries water to existing and future croplands.

The Proposed Rule exempts “prior converted croplands” from the definition of waters of the United States, but is silent as to new and future agricultural development, and provides no justification for this distinction. The Reservation includes significant swaths of land that have not been farmed for decades due to a lack of water, but that were historically irrigated. Such historically irrigated crop lands should be exempt, but the Proposed Rule provides significant discretion to the Agencies to assert juri sdiction over upwards of 40,000 new acres of croplands for which irrigation features will be restored or constructed in coming years. The Proposed Rule addresses this point in multiple places

but fails to confirm that the construction and maintenance of su ch necessary irriga tion features will not require a permit. The Final Rule should clarify this. 124 (p. 5)

Agency Response: See Section 7.2 summary response above. The existing exclusion for prior converted cropland is unchanged. The agencies recognize the

vital role of farme rs in providing the nation with food and fiber and are sensitive to their concerns. The rule does not affect the exemptions provided in the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)), which exempts many normal farming activities such as seeding, harvesting, cultivating, soil and water conservation practices, and other activities from the Section 404 permitting requirement. Even where waters are covered by the CWA, the agencies have adopted many streamlined regulatory requirements to simp lify and expedite compliance through the use of measures such as general permits and standardized mitigation measures.

124 These include: Part 328 (§328.3 (b) (2)); Part 110 (§110.1 (2) (ii)); Part 112 (§112.2 (2) (ii)); Part 116 (§116.3 (2) (ii)); Part 117 (§117.1 (2) (ii)); P art 122 (§122.2 (b) (2)); Part 230 (§230.1 (t) (2)); Part 232 (§232.2 (2) (ii)); Part 300 (§300.5 (2) (ii)); appendix E to Part 300 (1.5 (2) (ii); Part 302 (§302.3 (2) (ii); and Part 401 (§401.11 (2) (ii)).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

150 North Carolina Forest Service, North Carolina Department of Agriculture (Doc. #14122)

7.201 Comment 1

In the portion of the proposed rule which explicitly excludes or exempts ce r tain land features from being considered as a WOTUS [Part (b) of the proposed rule], we suggest adding prior

- converted forest lands and legacy ditches to this exclusion list, with suggested new text offered below in under line:

• "Prior

- converted forest lands and their associated legacy ditches. Notwithstanding the determination of a forest area's status as prior

- converted forest lands by any other federal or state or local agency, for the purposes of

the Clean Water Act the final authority regarding Clean Water Act jurisdiction

remains with the USEPA. "

Justification for Comment 1:

Forest lands tha t were converted prior to July 1 , 1977 are currently considered not to be jurisdictional wetlands, as allowed in 33CFR330.3. Howeve r, with the proposed new and confusing definition of the term "tributary," there is concern that the ditches that were dug in the past to drain and convert these forest lands would be interpreted as a WOTUS "tributary," and thus the "adjacent" or "neighbor ing" prior

- converted forest lands could

then be re

- captured as jurisdictional wetlands/waters, due to the proposed broad definition of new terms "riparian area" and "floodplain."

The USEPA claims that the proposed WOTUS rule will not expand new jurisdictio n into ditches or ephemeral streams. We disagree with this assertion , as it depends upon how broadly "tributary" ... "adjacent"...and other related definitions will be interpreted and applied. By adding prior

- converted forest lands and their associated leg acy ditches to the exclusion list under part (b), this would avoid confusion and uncertainty, while adding clarity to the rule; and avoid having two sets of federal rules potentially conflicting with

each other.

Also, we suggest adding " or state or local a gencies " to the exclusion statement, to assure consistent regulatory oversight by the USEPA on wetland matters related to silviculture, and preclude attempts by state or local/municipal/county governments to impose additional oversight of silvicultural act ivities in wetlands. Primacy must remain vested with the USEPA, and/or USACE where delegated. (p. 1

- 2)

Agency Response: In the final rule, the agencies have modified the definitions of “tributary” and “ neighboring ”. See the preamble for a discussion of these terms. See Section 7.2 summary response above. Under section 510 of the CWA, unless expressly stated, nothing in the CWA precludes or denies the right of any state or tribe to establish more protective standard s or limits than the Federal CWA.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

151 Board of Supervisors, Pocahontas County, Iowa (Doc. #13666)

7.202 The federal agencies seek input as to which waters “should be determined non

jurisdictional.” 125 Below are the Community’s recommendations.

...
5. Prior converted cro pland is expressly exempt from jurisdictional waters under the proposed rulemaking. By the absence of any discussion on new or future agricultural lands, future agricultural development could be deemed jurisdictional. These formerly irrigated lands that ar e brought back into production should be exempt. (p. 9)

Agency Response: See Section 7.2 summary response above. The existing exclusion for prior converted cropland is unchanged.

Board of Supervisors, Sutter County, California (Doc. #19657)

7.203 Under the current regulations, w aters of the United States do not include "prior converted cropland." 33 C.F.R § 328.3(a)(8). The Proposed Rule would retain the prior converted cropland exception unchanged, while moving it to subsection 328.3(b)(2).We agree that the agencies should retai n this exception, but we request that the agencies' final rulemaking clarify that the prior converted cropland exception applies regardless of any change in use of the land subsequent to its conversion.

The United States Department of Agriculture has defin ed prior converted cropland by regulation as:

[A] converted wetland where the conversion occurred prior to December 23, 1985, an agricultural commodity had been produced at least once before December 23, 1985, and as of December 23, 1985, the converted wet land did not support woody vegetation and met the following hydrologic criteria:

(i) Inundation was less than 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years (50 percent chance or more); a nd

(ii) If a pothole, playa or pocosin, ponding was less than 7 consecutive days during the growing season in most years (50 percent chance or more) and saturation was less than 14 consecutive days during the growing season most years (50 percent chance or more).

7 C.F.R § 12.2. The Proposed Rule states that the Corps and the EPA use this definition for purposes of determining jurisdiction under the Clean Water Act. See Proposed Rule at 22189 n.2. However, since 2005, the Corps' policy has been to treat pri or converted cropland as no longer falling within the exception, and therefore subject to Clean Water Act jurisdiction, if the land is no longer devoted to agricultural use. This policy is not supported by the text of the Corps' regulations and is inconsis tent with the USDA's definition of prior converted cropland, because a subsequent change in use has no bearing on whether the converted wetland met the regulatory criteria as of December 23, 1985.

125 Id . at 22193Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

152 Moreover, the Corps' policy unnecessarily restricts changes in land use that are necessary and appropriate to meet changing local and regional needs. We therefore request that the agencies make the following change to the Proposed Rule:

 Add language to proposed 33 C.F.R § 328.3(b)(2), clarifying that "waters of th e United States do not include prior converted cropland, as that term is defined by USDA regulations at 7 C.F.R § 12.2, notwithstanding any change in use of the prior converted cropland occurring after December 23, 1985." (p. 6)

Agency Response: See Section 7.2 summary response above. The existing exclusion for prior converted cropland is unchanged, and the definition of the term “prior converted cropland” is outside the scope of this rule.

Virginia Association of Counties (Doc. #15175)

7.204 Under ([t] [2]), "prior converted cropland" is excluded as a jurisdictional water. However, the proposed rule also states that "for purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA." This statement seems to

s uggest the "prior converted cropland" is excluded, but only until a determination is made by EPA that identifies a significant nexus between "converted cropland" and waters clearly understood to be jurisdictional. To clarify this issue, VACo recommends tha t EPA codify the longstanding meaning of "prior converted cropland" as found in 58 Fed. Reg. 45008, 45031 (Aug. 25, 1993).

Recommendation : The term prior converted cropland means areas that, prior to December 23, 1985, were drained or otherwise manipulated for the purpose, or having the effect, of making production of a commodity crop possible." (p. 3)

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged , and the definition of the term “prior converted cro pland” is outside the scope of this rule

.

Michigan Association of Conservation Districts (Doc. # 16583)

7.205 Prior Converted Cropland and Farmed Wetlands. The proposed rule states "Notwithstanding the determination of an area's status as prior converted croplan d by any other federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA". Prior Converted Cropland (PCC) and Farmed Wetlands (FW) that are within agricultural fields and have been

a ctively farmed for generations could be deemed jurisdictional by the proposed rule. Section 404 provides an exemption for normal farming, silviculture and ranching activities for PCC and FW. However, section 402 does not provide a similar exemption

and nor mal farming practice. MACO recommends an agricultural exemption for PCC and FW be developed under Section 402 that is parallel and consistent to what currently exists in Section 404. This will reduce uncertainty for farmers and more clearly spell out

secti on 402 exemptions. (p. 2)

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged , and the implementation of the NPDES permitting program is outside the scope of this rule

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

153 Kerr Environmental Services Corp. (Doc. #7937.1)

7.206 1. Item (b)(2) Prior Converted Cropland. On August 25, 1993, the USEPA and USACE published its regulations specifying that Prior Converted cropland were not waters of the United States (Section 328.3(a)(8). The preamble, states at page 45032

“The amendment of the definition of waters of the United States in today’s rule also codifies that agencies’ current policy of not regulating prior converted cropland under Section 404 as reflected by Corps RGL 90

- 7. RGL 90

- 7, moreover, eased the regulato ry burden of the Section 404 program by excluding prior converted cropland from coverage under this provision.”

Since this August 25, 1993 regulation, we have experienced strong and consistent resistance by certain USACE Districts to ignore the application of RGL 90

- 7 in evaluating Prior Converted cropland under the CWA and have been told that RGL 90

- 07 is no longer applicable at all, in any circumstances relative to CWA jurisdictional determinations made by the USACE.

While USACE and USEPA may have believe d it was unnecessary to include a reference

to RGL90

- 7 in the actual 1993 regulation, they have the opportunity to rectify that error as the currently proposed wording for Prior Converted Cropland referencing EPAs authority, has no reference to any standar d. We recommend the paragraph on Prior Converted cropland at 328.3(b)(2) be revised as follows (new language underlined):

Prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agenc y, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA and will rely on the procedures defined in RGL 90

- 7, and then codified at 328.3(a)(8). (p. 2

- 3)

Agency Response: See Section 7.2 summary response abo ve

. The existing exclusion for prior converted cropland is unchanged , and the case

- specific implementation of the 404 permitting program is outside the scope of this rule

.

Montana Wool Growers Association (Doc. #5843.1)

7.207 The Proposed Rule's exclusions imply that land features would be jurisdictional but for

the exclusion.

a. Section (b)(2) excludes "prior converted cropland," implying that cropland would normally be jurisdictional and any subsequent cropland conversions will be regulated. If the Agencies inten d to exclude only croplands that were previously converted from wetlands, riparian areas, or floodplains the Proposed Rule should say so. [For a joint agency memorandum from 1990 discussing prior converted cropland, see EPA,

Memorandum: Clean Water Act Sec tion 404 Regulatory Program and Agricultural

Activities , http://water.epa.gov/lawsregs/guidance/wetlands/cwaag.cfm (May 3, 1990).] (p. 10)

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

154 National Fa rmers Union (Doc. #6249)

7.208 The proposed rule also specifically continues the exclusion of prior converted cropland from the definition of "waters of the United States" at section (b)(2). The proposed rule and preamble's direct confirmation of these matters p rovides clarity for the regulated community. The agencies should provide further clarity for the regulated community on this point by stating in the final rule, "This rule does not require a permit for any plowing and planting activity that was legally con ducted without a permit before this rule was issued." This language captures the intent of the agencies and provides the regulated community with the certainty it needs to continue farming its existing planted acreage without threat of new interference. (p . 1 0 )

Agency Response: See Section 7.2 summary response above. The existing exclusion for prior converted cropland is unchanged. The rule does not affect the exemptions provided in the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)), which exempts many normal farming activities such as seeding, harvesting, cultivating, soil and water conservation practices, and other activities from the Section 404 permitting requirement.

Michigan Farm Bureau (Doc. #10196)

7.209 While the agencies emphasize the exclusion of p rior converted cropland from CWA regulation, the specific inclusion lacks clarity and certainty for landowners and farmers.

The EPA and USACE reserve final authority regarding CWA jurisdiction over an area's status as prior converted cropland, but fail to acknowledge the inconsistency with which the agencies have considered prior converted croplands and applicable exclusions from the CWA in the past, such as in New Hope Power Company, et al. v. United States Army Corps of Engineers , No. 10

- 22777

- CIV

- Moore/ Simonton, 2010 U.S. Dist. (S.D. Fla. Sept. 28, 2010). In any proposed rule, EPA and USACE must clarify the exclusion of prior converted cropland as well as assurance of consistent exclusion of those lands. (p. 8)

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged.

Minnesota Agricultural Water Resource Center (Doc. #14284)

7.210 In agricultural settings, we recommend...Prior converted cropland should also be clearly defined as always non

-

jurisdictional. (p. 2)

Agency Response: Se e Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged.

California Association of Winegrape Growers (Doc. #14593)

7.211 1. Improper and Illegal Encroachment on Agriculture

The Proposed Rule states that it will not affect prior converted cropland, normal farming practices, or irrigated agricultural return flows. Unfortunately, the tremendous expansiveness of the general concept of “connectivity” as defined in the Connectivity Report and the Proposed Rule’s Scientific Evidence in Appendix A opens vast newClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

155 frontiers of ambiguity into which we fear various exceptions to the exceptions will predictably creep.

In 1993, the Corps adopted a rule that established that agricultural lands that were converted from wetlands prior to 1985 (“prior converted croplands”) were categorically excluded from the definition of “the waters of the United States” and, therefore, were not subject to regulation under Section 404 of the CWA, 33 U.S.C. § 1344. (See Final Rule, Clean Water Act Regu latory Program, 58 Fed. Reg. 45,008 (Aug. 25, 1993) (“1993 Final Rule”) (codified at 33 C.F.R. § 328.3(a)(8) (2009)). There are over 53 million acres of prior converted cropland throughout the country. (See U.S. Department of Agriculture,

Natural Resources Conservation Service, RCA Issue Brief #8, “Wetlands Programs and Partnerships,” (Jan. 1996), available at http://www.nrcs.usda.gov/technical/rca/ib8text.html [“The Corps and EPA agreed to final regulations ensuring that approximately 53 million acres of p rior

- converted cropland will not be subject to wetland regulation.”]; U.S. Army Corps of Eng’rs, “Two Years of Progress: Meeting Our Commitment for Wetlands Reform; Protecting America’s Wetlands: A Fair, Flexible and Effective Approach August 1993

- August 1995,”

available at http://www.usace.army.mil/CECW/Documents/cecwo/reg/materials/wetland_policy1995. pdf [“To make the Federal wetlands program more consistent and predictable for farmers, the Clinton Administration clarified that ‘prior converted cropland s’ are not subject to regulation under Section 404 of the Clean Water Act. Nearly 53 million acres of farm land are covered by this action which exempted lands that no longer perform the wetlands functions as they did in their natural condition.”].) Notwit hstanding subsequent case

law 126 occurring after the adoption of this formal rule, the Corps continues to lack jurisdiction over such lands and no jurisdictional determination or Corps permit is required for their use. Thus, any attempt by the Proposed Rule to infringe about the “prior converted cropland” exemption is improper and invalid. (p. 15

- 16)

Agency Response: See Section 7.2 summary response above. In the final rule, the agencies have modified the definitions of “tributary” and “adjacent”. See Sections

IV.F and G of the preamble for a discussion of these terms.

American Soybean Association (Doc. #14610)

7.212 “Prior converted cropland” is another issue in which more questions are raised than answered in the proposed rule. ASA appreciates the clarity provided in the “Questions and Answers” document that clearly states that the existing exclusion from jurisdiction for prior converted cropland is carried forward unchanged. However, sections of the proposed rule state that, “N otwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA.” While the Department of Agri culture makes the “prior converted” decision, jurisdiction under the law is EPA’s. We understand that there is no history of EPA overturning a USDA “prior

126 Rapanos does not affect the conc lusion that prior converted croplands are not subject to the Agencies’ CWA jurisdiction.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

156 converted” decision. Unfortunately, there is a great deal of unease among farmers that past practice is no guarantee for the future. (p. 2)

Agency Response: See Section 7.2 summary response above

.

Great Plains Canola Association (Doc. #14725)

7.213 ... The Proposed Rule also states that prior converted cropland is not “waters of the United States”, yet other sections of the rule state that “Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA.” This contradict ion is greatly concerning to GPCA producers. (p. 2)

Agency Response: See Section 7.2 summary response above

.

National Pork Producers Council (Doc. #15023)

7.214 We strongly recommend that the Agencies spell out what they believe prior

- converted cropland is and how they work with USDA in using the USDA PCC determinations. In particular, we believe a discussion in the preamble of the final rule that details the long relationship and history of coordination between the Agencies and USDA on the issue of PCC determinations would help address any uncertainty pork producers or others in agriculture have regarding the potential treatment of PCC under the proposed rule. In particular, there should be a clear discussion of the number of occasions an NRCS PCC

determination has been overturne d by the Agencies and the circumstances that existed when that occurred. Additionally, in furtherance of the stated goal of providing clarity and certainty to farmers, we strongly urge the Agencies to expressly define what they consider PCC by simple refer ence to the current regulatory standards implementing the provisions of the 1985 Food Security Act, set forth at Title 7, Part 12 of the Code of Federal Regulations. (p. 22)

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged.

North Carolina Farm Bureau Federation (Doc. #15078)

7.215 ...This rule states that PCC is not WOTUS. We support the exclusion of PCC. However, we are concerned that there has been a resistance in recent years by some of the Agencies'

staff to honoring the existing exemption for PCC and an effort to narrow the existing exemption. Promulgation of a new rule should not be taken as an opportunity to issue new guidance that further narrows the exclusion of prior converted cropland from being

cons idered "waters of the US." (p. 16)

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged.

US Dry Bean Council (Doc. #15256)

7.216 The Proposed Rule also states that prior converted cropland is not “waters of the United States.” Yet other sections of the rule state that “Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

157 the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA.” This contradiction is unacceptable for dry bean producers and we ask that this be clarified to make it clear that prior converted cropland is not “waters of the United States.” (p. 2)

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged.

Minnesota Soybean Growers Association (Doc. #15542)

7.217 While the definition of "prior converted cropland" is unchanged in the proposed rule, it is confusing and does not give regulatory certai nty. Farmers and landowners that currently have "prior converted croplands" are not given any assurance that the EPA will not use a drastically different definition of this phrase than other federal agencies are already using.

There is no reason that the E PA could not define this language similar to other definitions used by other federal agencies. The EPA would not be giving up any jurisdiction or ceding their authority to another agency by having a similar definition. (p. 2)

Agency Response: See Section 7.2 summary respon se above

. The existing exclusion for prior converted cropland is unchanged.

National Barley Growers Association (Doc. #15627)

7.218 Prior Converted Cropland. The Proposed Rule provides that prior converted cropland

falls outside the definition of “waters of the United States,” yet also states: “[n]otwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains w ith EPA.” This conflicting language suggests that EPA and/or the Corps are trying to have it both ways. (p. 5)

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged.

US Canola Association (Doc. #16361)

7.219 The Proposed Rule also states that prior converted cropland is not “waters of the United States.” Yet other sections of the rule state that “Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA.” This contradiction is unacceptable for canola producers. (p. 2 )

Agency Response: See Section 7.2 summary response above

. The existing exclusion for prior converted cropland is unchanged.

Department of Public Works, City of Chesapeake, Virginia (Doc. # 5612.1 )

7.220 1. The Rule states that there will be no change to the exclusion for prior converted cropland; however, the exemption states that authority regarding C WA Jurisdiction for prior converted cropland remains with the EPA. How will jurisdictional determinations on prior converted cropland, including drainage ditches within the cropland be handled by the EPA/Corps if the land use changes? In light of the Febru ary 2011 U.S. District Court for Southern District of Florida's decision to deny the Corps' motion to alter theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

158 court's September 2010 decision in the New Hope Power Company and Okeelanta Corporation v. U.S. Corps of Engineers and Stockton

, 746 F. Surma 2d 1272 (S.D. Fla. 2010), how will the EPA/Corps process jurisdictional requests for prior converted cropland that propose to change their land use? Will the applicant/owners be required to coordinate directly with EPA for all jurisdictional determinations a ssociated with prior converted croplands that propose a change in land use? If case

- specific analysis and coordination with EPA is required for all prior converted croplands that propose to change their land use, even in light of the New Hope v. Corps (Sto ckton) court decision, this process may require more time and resources while providing less clarity, certainty and predictability for the regulated community. (p. 5

- 6)

Agency Response: See Section 7.2 summary response above. In the final rule, the agencies have modified t he definitions of “tributary” and “neighboring”. See Sections IV.F, IV.G, and IV.I of the preamble for a discussion of these terms and the

ditch exclusions.

7.221 5. The Rule states that ephemeral features located on agricultural lands that do not possess a bed and banks are not tributaries, even though they may contribute flow during some rain events. The City of Chesapeake supports this position on agricultural ditches, but how will ephemeral, intermittent and/or perennial ditches that may contain a bed and

ban k and contribute flow to a TNW during rain events be assessed on prior

- converted croplands? Since prior

- converted croplands are exempt to regulatory oversight under the CWA, will all agricultural ditches, no matter their hydrologic regime or geomorphic

nat ure also be exempt to regulatory oversight under the CWA? Furthermore, the Rule only exempts ephemeral ditches located on agricultural lands, and all ephemeral features including, but not limited to ditches, dry swales, dry detention ponds and rain gardens

, which may contribute flow during rain events should not be categorized as WOUS under the proposed Rule. (p. 6)

Agency Response: See Section 7.2 summary response above. In the final rule, the agencies have modified the exclusions for ditches. See Section IV.I of the the

p reamble for the discussion regarding the ditch exclusions.

Caloosahatchee River Citizen’s Association (Doc. #4711.2)

7.222 Categorical Exclusion of Non

- Point Pollution Sources

Agricultural Stormwater and Irrigation Return

– Crop Production . American agriculture has become highly productive in its dependency on water

- soluble chemicals

-- fertilizers, pesticides, and herbicides. Thousands of jobs in Southwest Florida depend on this productive agriculture. Yet one consequence of the use of water

- soluble chemicals in crop production is the run

- off, in sheetflow or in watercourses, of agricultural chemicals that were not taken up by the crops in the field. Commonly in Southwest Florida, quantities of nutrients such as nitrogen and phosphorus, pesticides such as chlorpy rfos from citrus production and carbofuran from sugar production, and herbicides such as glyphosate from turfgrass sod production and atrazine from sugar production are found in our waters. Yet the presence of these nutrient and chemical pollutants that or iginate in cropland agriculture are categorically untouchable due to the exclusion of agricultural stormwater and irrigation water return.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

159 In an egregious example of the effect of water

- borne agricultural chemicals, the USGS

has found atrazine in Southwest Florida waters. Low concentrations of atrazine cause a variety of adverse effects in fish, including reduced sperm production, disruptions of normal behavior, kidney damage, and decreased ability to withstand warm temperatures. The hormone systems of both amphibians and alligators are disrupted by atrazine. Atrazine also stimulates fungi that cause plant diseases, including the common root rot

Fusarium.

Atrazine can damage natural communities. For example, in a pond community, atrazine (at a concentration of 20 parts per billion) caused reductions in populations of aquatic plants, aquatic insects, and the fish that feed on them. Despite the demonstrated effects of atrazine, it continues to pollute our surface waters and aquifers.

Agricultural Stormwater

– A nimal Production . The beef industry is an essential part of Southwest Florida agriculture in jobs and revenues. However, surface run

- off from pastures is a major source of nitrate, ammonia, phosphorus, and cryptosporidium in our surface waters and aquifers . The effect of high nutrient content in the Caloosahatchee River has been the seasonal growth of mircroalgae. The turbidity caused by this algae reduces the light penetration to submerged vascular aquatic vegetation, killing off vegetation essential to li fe cycles of shrimp, crabs, sport fishes, and forage fishes. Yet the presence of these nutrient pollutants that originate in animal agriculture is categorically untouchable due to the exclusion of agricultural stormwater. (p. 2

- 3)

Agency Response: Implementation of the NPD ES permitting program or sources nonpoint source pollution are outside the scope of this rulemaking.

Citizens Committee to Complete the Refuge (Doc. #14738)

7.223 Prior converted croplands:

The preamble to the proposed rule states, "Waters and features that are determined to be excluded under section (b) of the proposed rule will not be jurisdictional under any of the categories in the proposed rule under section (a). There is no recapture pr ovision for these excluded waters in the proposal. " [emphasis added]

Prior converted croplands are listed under section (b), with the proviso "Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, fo r the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA." Please clarify what this means with respect to prior converted croplands determinations. Does this mean EPA will review all PCC

determinatio ns to determine if these wetlands still possess wetlands functions and values?

EPA and the Corps have not adequately demonstrated their presumption that prior converted croplands do not possess valuable wetlands functions and values, nor have the agencies adequately demonstrated that these areas could not be fully restored to functional and valuable wetlands in the absence of agricultural manipulation. We strongly object to prior converted croplands being placed under section (b) of the proposed rule

and cl assified as areas that have no recapture provision.

A common misconception is that lands identified/certified by the Natural Resources Conservation Service (NRCS) as Prior Converted Croplands have been sufficientlyClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

160 altered to permanently remove wetland cha racteristics and in particular, the hydrology required to maintain wetland functions and values. The designation Prior Converted Croplands is a regulatory construct for the purposes of implementing the "swampbuster" provisions of the Food Security Act (FSA ) and does not reflect the ecological functions

or values of these lands.

Votteler and Muir 127 observed:

Clinton's proposals relaxed some of the current restrictions on agricultural effects on wetlands and increased funding for incentives to preserve and res tore wetlands on agricultural lands. The administrative policy excluded 53 million acres of "prior converted croplands" from regulation as wetlands ... [emphasis added]

And Ruffolo 128 also referred to changes implemented by the Clinton Administration:

7.224 ...It also made the Soil Conservation Service, in the Department of Agriculture, responsible for wetland jurisdictional determinations on agricultural lands under both the Clean Water Act and the "Swampbuster" program (the Food Security Act). The administr ation also excluded "prior converted croplands" from regulation. This exemption excluded from regulation vast tracts of wetlands that had been drained and converted to agricultural use prior to 1985. [emphasis added]

Prior Converted Croplands are defined i n the 5th Edition of the National Food Security Act Manual (NFSAM) in the following manner:

A. Definition

(1) Prior converted cropland (PC) is a converted wetland where the conversion occurred before December 23, 1985; an agricultural commodity had been

pr oduced at least once before December 23, 1985; and as of December 23, 1985, the area was capable of producing an agricultural commodity (i.e., did not support woody vegetation and was sufficiently drained to support production of an agricultural commodity) . The conversion could include draining, dredging, filling, leveling, or otherwise manipulating (including the removal of woody vegetation or any activity that results in impairing or reducing the flow and circulation of water) the wetland area. In additio n, PC meets the following hydrologic criteria:

(i) If the area is not a pothole, playa, or pocosin, inundation is less than 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years (50 percent chan ge or more).

(ii) If the area is a pothole, playa, or pocosin, inundation is less that 7 consecutive days and saturation is less than 14 consecutive days during the growing season in most years (50 percent chance or more). [emphasis added]

127 Votteler, Todd H. and Thomas A. Muir. "Wetland Management and Research

- Wetland Protection Legislation." National Water Summary on Wetland Resources. United States Geological Survey Water Supply Paper 2425. http://water.usgs.gov/nwsum/WSP2425/legislation.html

. 128 Ibid

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

161 The definition c learly labels PCCs "wetlands." The determining factor in whether a hydrologically modified (prior to December 23, 1985) wetland is regulated or not, is that of ponding. Is the (hydrologically modified) wetland inundated (ponded) for less than 15

consecutiv e days? If so (unless it is a pothole, playa, or pocosin), it is a PCC and not regulated, even if there is saturation of soils to the surface.

In response to the question "Why regulate PCC wetlands?" the Washington State Department of Ecology asserts:

The original assumption behind exempting PCC wetlands from federal regulation was the belief that these wetlands had been so altered they no longer provided important wetland functions. However, PCC wetlands in Washington perform many of the same important env ironmental functions as other wetlands, including recharging streams and aquifers, storing flood waters, filtering pollutants from water and providing wildlife habitat . [emphasis added]

The National Research Council 129 observes (p. 159):

One potential concer n, however, is that agricultural wetlands will begin to diverge as separate from those regulated by USACE and EPA. This divergence could be fostered by maintenance of separate delineation manuals for agricultural and nonagricultural wetlands. Several major differences based on policy rather than

science are already apparent. [emphasis added]

And, recommends for "Especially Controversial Wetlands" (p. 167):

Wetlands on agricultural lands should not be regulated differently from other

wetlands. These wetlands may have many of the same attributes as do other wetlands, including maintenance of water quality, and there is no scientific basis for delineating them under definitions or federal manuals different from those applicable to other wetlands . [emphasis adde d]

...Wetlands in agricultural settings can enhance runoff water quality...

Sheldon, et al, 130 asserts:

...However, many wetlands meeting the criteria for PCC would still be expected to provide important functions , given that the criteria for being designate d "Prior Converted" require only that the wetland has been manipulated for production of commodity crops since 1985 and does not pond for more than 14 consecutive days during the growing season.

...In addition, the authors of Volume I have documented signi ficant water quality and quantity functions provided by PCCs in projects reviewed and permitted by the Department of Ecology (This data has not been published). [emphasis added]

129 National Research Council. "Wetlands: Characteristics and Boundaries." National Academy Press. Washington

D.C. 1995

. 130 Sheldon, Dyanne, Tom Hruby Ph. D., Patricia Johnson, Kim Harper, Andy McMillan, Teri Granger, Stephen Stanley, Erik Stockdale. "Wetlands in Washington State Volume 1: A Synthesis of the Science." Ecology

Publication #05

- 06

- 006. Department of Ecology Publications Distribution Office. http://www.ecy.wa.gov/biblio/0506006.html

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

162 There is a need for protection and recapture of areas certified as PCC. PCC we tlands receive no protection under the FSA. Thousands of acres of wetlands could be at risk from actions that reduce or impair the reach, flow or circulation of these wetlands.

According to a "Wetland Fact Sheet

- Prior Converted Cropland " published by the

Vermont NRCS 131 :

Areas that qualify as Prior Converted Cropland (PC) are exempt from the Swampbuster provision of the Farm Bill. These areas can be further drained, cropped or manipulated without loss of eligibility for USDA program benefits. [emphasis adde d]

Once determined PCC, the wetland is forever considered PCC. Despite the fact that other categories of wetlands on agricultural lands are considered "abandoned" following the cessation for five consecutive years of management or maintenance, "PC lands wi ll not

be considered abandoned under the Food Security Act." 132

The NFSAM does state:

This definition of abandonment is applicable only for compliance with the Food Security Act. Regulations governing the Clean Water Act may provide different or

additional c riteria for abandonment, particularly with regard to PC areas. Participants who are planning to abandon PC areas should be advised to discuss their plans with the COE before proceeding. [emphasis added]

The February 25, 2005 Memorandum to the Field issued jointly by USDA

- NRCS and the USACE provides the following guidance regarding PCCs:

Prior

- Converted Cropland. Prior

- converted cropland (PC) is identified for the purpose of implementing the FSA, and refers to wetlands that were converted

from a non

- agricult ural use to cropland prior to December 23, 1985. While a PC area may meet the wetland hydrology criterion, production of an agricultural commodity or maintenance or improvement of drainage systems on the PC area, is exempt from the swampbuster provisions. A certified PC determination made by NRCS remains valid as long as the area is devoted to an agricultural use. If the land changes to a nonagricultural use, the PC determination is no longer applicable and a new wetland determination is required for CWA pu rposes

. Specific guidance will be provided by the Corps in the near future addressing how the Corps will treat PC designations for land that changes from agricultural to

non

- agricultural use. [emphasis added]

This language explicitly states that PCC determinations and exemptions remain valid only as long as the land is in agricultural use. However, the specific guidance promised has yet to be provided by EPA or the Corps. Conversion of agricultural lands to

dev elopment is an ever present threat in California. The potential loophole afforded by

non

- regulation of PCC wetlands must be avoided in the WRAPP. We are aware of

131 Vermont NRCS. "Wetland Fact Sheet

- Prior Converted Cropland. http://www.vt.nrcs.usda.gov/programs/Wetland_Compliance/Wetland%20Fact%20Sheet%20

- %20Prior%20Converted%20Cropland.htm

. 132 NRCS. National Food Security Act Manual. M_180_NSFAM_514_D, Fifth Edition, November 2010.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

163 situations where landowners/developers have attempted to utili ze PCC determinations to preclud e Clean Water Act regulation of wetlands.

The proposed rule must not exempt conversion of PCC wetlands to non

- agricultural uses and as stated above, must not exempt activities that would reduce or impair the reach,

flow of circulation of waters of the U.S. similar to the existing agricultural exemptions. The intent is not to regulate historic and ongoing farming operations, but to regulate any change in use that will result in the conversion of wetland areas to uplands. Changes in use could encompass propos als to remove the agricultural wetlands from farming for the purposes of development, but could also include changes in farming to crops that require drier soils. The latter is especially of concern, as we are aware of several instances in the

San Francisc o Bay Area where landowners brought in fill or deep ripped soils (e.g. Borden Ranch) under the guise of "normal farming operations" on lands where we were aware of future development proposals. The proposed rule should not include loopholes

that would allo w the unregulated conversion of wetlands to uplands.

Every five to seven years agricultural policies are evaluated and reauthorized or modified by U.S. lawmakers through the Farm Bill authorization process. As can be observed by the recent 2014 Farm Bill, the process is highly politicized and not without controversy. EPA must not merely adopt NRCS's definition of PCC wetlands, as that definition is vulnerable to changes in definition or conditions with each Farm Bill reauthorization. As an example, PCC wetl ands were originally considered abandoned if they were not cropped for five years. This policy was drastically altered with the 1996 Farm Bill, which

stated PCC wetlands will not be considered abandoned under the FSA. Once a wetland is identified PCC, that designation (and exemption from regulation) lasts forever, as long as the lands are used for the production of food, forage or fiber, and so long as alterations of PCC wetlands do not alter the hydrology of nearby wetlands. We have already discussed

the n eed for the incorporation of a recapture clause to prevent the unregulated drainage and conversion of these wetlands under the guise of normal farming operations. EPA must ensure its policies are well defined and protective of waters of the state. EPA must ensure its policies will not inadvertently be altered by changes adopted by an outside

agency

- especially one that does not have protection of waters of the state as its primary charge. To do anything less would be abrogating the EPA's responsibilities u nder the

CWA.

No inventory of PCC determinations is available, thus it is impossible to determine how many thousands of acres of wetlands may be at risk.

Crumpton et al 133 observed:

Lack of public information on cropped wetlands: Because USDA does not make

t he data public, very little information about cropped wetlands is available. USDA, the Corps, EPA and the Interior Department coordinated wetland protection under a 1994 interagency agreement. USDA confidentiality, however, was one reason that agreement te rminated. It is essential that these data be made

133 Crum pton, William, Arnold van der Valk, Will Hoyer, David Osterberg. "Wetland Restoration in Iowa Challenges and Opportunities." The Iowa Policy Project. May 2012. www.IowaPolicyProject.org

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

164 public in order to assess the policy implications of various alternatives for dealing with cropped wetlands.

Without such information, it is impossible for EPA and the Corps to determine the

environmental i mpacts of providing a recapture clause for PCC wetlands.

On February 28, 2005, the NRCS provided rationale for withdrawing from the 1994

Me morandum of Agreement (Ag MOA) 134 . Of note are the following:

The 2002 amendments prohibit NRCS from sharing confidenti al producer information to agencies outside USDA. This makes it illegal for NRCS to provide wetlands delineations and determinations to the COE and EPA for CWA permitting and enforcement.

1996 amendments eliminated the concept of "abandonment" for prior co nverted (PC) cropland . As a result, land may be considered non

- wetland for Swampbuster purposes, and wetland for CWA purposes...

The MOA states that NRCS wetland determinations shall not be revised without interagency coordination. However, NRCS is require d to comply with the decision of the USDA National Appeals Division, which may overturn a previous wetland determination without coordination among the agencies.

Per the MOA, NRCS agreed to conduct wetland determinations on agricultural land for the purpos e of obtaining a CWA permit. Regulations at 7 C.F.R. §12.30 state that NRCS's responsibilities regarding wetlands extend only to implementing the wetland conservation provisions of the FSA. [emphasis added]

Clearly, NRCS cannot comply with the spirit and i ntent of the 1994 MOA. The FSA fails to provide any regulatory protection of wetlands identified as prior converted croplands. It has been nine years since the NRCS and the Corps withdrew from the Ag MOA and there is yet to be any specific guidance regardi ng recapture of PCC wetlands.

In conclusion, with the exceptions noted above, we support the proposed definition of "waters of the U.S." We believe ample scientific documentation exists to support the proposed rule. We encourage EPA to adopt the recommenda tions put forth in the SAB letter dated September 30, 2014. (p. 4

- 8)

Agency Response: See Section 7.2 summary response above.

Stormwater Management Commission, Lake County, Illinois (Doc. #15381)

7.225 We acknowledge and support the proposed exemptions for agricultural lands and the specific exclusion of prior

- converted cropland from regulation as WOUS in §328.3(b)(2). (p. 2)

Agency Response: Comment noted.

134 NRCS. "Guidance on Conducting Wetland Determinations for the Food Security Act and Section 404 of the

Clean Water Act." http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs143_007868.pdf

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

165 Wetland Science Applications, Inc. (Doc. #4958)

7.226 I agree with placing the exceptions at 33 CFR 328(b) into the rule with the following exceptions:

1. Regarding (2) prior converted, the 5

- year abandonment provision should be specifically included to avoid parochial efforts similar to that adjudicated in the New Hope case;... (p. 1)

Agency Response: See Section 7.2 summary response above

.

7.3. A DDITIONAL P ROPOSED E XCLUSIONS

Summary Response

The Agencies have historically indicated that a number of features are not considered Waters of

the United States under the Clean Water Act

, but only the exclusions for waste treatment systems and prior converted cropland were found in the rule itself

. In the proposed and final rule the agencies add exclusions for waters and features previously identified as generally exempt in preamble languag e from Federal Register notices by the Corps on November 13, 1986, and by

EPA on June 6, 1988 . The agencies also add exclusions for groundwater and erosional features, as well as exclusions for some waters that were identified in public comments as possibl y being found jurisdictional under proposed rule language where this was never the agencies’ intent, such as stormwater control features constructed in dry land to convey, treat, or store stormwater, and cooling ponds that are created in dry land. These e xclusions generally reflect current agencies’ practice, and their inclusion in the rule as specifically excluded furthers the agencies’ goal of providing greater clarity over what waters are and are not protected under the CWA. This is the

first time these exclusions have been established by rule.

Because questions about permitting sometimes arise, it may be helpful for the agencies to clarify that exemptions and exclusions are not the same. Where something is excluded from the

definition of waters of the US, a water or feature meeting the definition of that exclusion is not itself a jurisdictional water under the Clean Water Act. Examples of such exclusions include prior converted cropland and waste treatment systems. However, even where a water is clearl y identified as a water of the US, in some cases there are statutory or regulatory permitting exemptions that allow certain activities to occur in jurisdictional waters with no need for a permit. Examples of such permitting exemptions include n ormal farmin g, silviculture, and ranching practices and c onstruction and maintenance of farm or stock ponds or irrigation ditches

.

The final rule establishes exclusions from the definition of waters of the US for artificially irrigated areas that would revert to dry land should application of water to that area cease; artificial lakes and ponds created in dry land and used primarily for uses such as stock watering, irrigation, settling basins, rice growing, or coo ling ponds; artificial reflecting pools or swimming pools created in dry land; small ornamental waters created in dry land; water

- filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining f

ill, sand, or gravel that fill with water; erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland swales, and lawfully constructed grassed waterways; and puddles. The agencies al so exclude groundwater

,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

166 erosional features including gullies and rills, and non

- wetland swales . Comments relating to all

of these issues are discussed in more detail in subsections of 7.3 and in individual comments

below

.

Specific Comments

Virginia Departm ent of Transportation (Doc. #12756)

7.227 Information contained on p. 22263, first column, paragraphs 7(b)(5)(ii)

- (iv), unnecessarily complicates the exclusions from the definition of WOUS. These sections should be rewritten as one exclusion, stating that artifi cial lakes, ponds or pools created by excavating and/or diking dry land are not WOUS. (p. 6)

Agency Response: The agencies disagree that the organization of the exclusions is unnecessarily complicated and are not making this change

.

Ohio Department of Natural Resources et al. (Doc. #15421)

7.228 328.3(b)(5)(ii) Diked/excavated farm ponds, 3283(b)(5)(1ii) Reflection pools, swimming pools, 328.3(b)(5)(iv) Ornamental ponds

It should be clarified in the federal register discussion that these types of areas would not be considered jur isdictional waters of the U.S. even if they have outflow. For example, if an artificial pond was created by excavation and intercepted groundwater, and the resulting pond then possessed a discharge (either ephemeral, intermittent, or perennial), the pond i tself would not be considered jurisdictional even though it connects to a water of the U.S. Presumably the new water created from the discharge of the pond would be considered a ditch, and would only be considered jurisdictional if it possessed perennial

f low. Please confirm this assumption. (p. 6)

Agency Response: The agencies are clear that waters listed as excluded in paragraph (b) cannot be brought into jurisdiction under other parts of the rule. Where exempted features such as pools and ponds listed in paragraph (b) ar e connected to jurisdictional waters through outfalls, such outfalls could be

considered ditches and treated as such under the rule but this is dependent on the facts of a particular situation . U nder prior policies the agencies could determine that a parti cular feature generally considered nonjurisdictional was a “water of the United States.” The agencies do not retain that authority for features excluded

under the rule.

Scott County Soil and Water Conservation District, Illinois (Doc. #8410)

7.229 It must not a ffect areas previously excluded from federal jurisdiction, including prior converted cropland, artificially irrigated areas that would revert to upland if irrigation stops; artificial lakes or ponds created by excavating and/or diking dry land and used for purposes; purposes such as rice growing, stock watering, or irrigation; artificial ornamental waters created for primarily aesthetic reasons; water

- filled depressions created as a result of construction activity; pits excavated in upland for fill, sand, o r gravel; and waste treatment systems (including treatment ponds or lagoons). (p. 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

167 Agency Response: The agencies are, for the instances mentioned above, reflecting current practice in the exclusions now written into the rule.

Ames Construction, Inc. (Doc. #17045)

7.230 ...with t his proposed rule, the agencies are effectively shifting the burden to the regulated community to prove the application of the limited and ambiguous exclusions on a case

by

- case basis. This point is particularly prominent with regard to the exclusions for

'water

- filled depressions incidental to construction activity' and 'water

- filled depressions excavated on dry land for the purposes of obtaining sand and gravel.' Old maps and aerial photos may be the only sources available to identify historic conditions in order to

resolve third

- party allegations of violations of federal CWA laws; however, these tools often lack the level of resolution required to make a proper determination. It will ultimately be up to the regulated community to provide compelling eviden ce that an uneven surface area on the land (i.e., man

- made wet area) first came about during construction activity, or face complicated and layered reviews, costly penalties or even citizen suits. (p. 2)

Agency Response: The agencies are formalizing existing exemptions in rule language and expect no difference in implementation for the issues discussed in the

comment. It remains the government’s burden to demonstrate a particular water is

a “water of the United States.”

Richland Communities (Doc. #18793)

7.231 Richland supports the policy decision to exclude rice growing areas from the definition of ''waters of the United States" under the Clean Water Act. Richland is concerned, however, that the language in this provision is unclear and incomplete. As such, the language creates the potential that areas dedicated to rice growing could inappropriately be deemed jurisdictional despite the clear policy intent of the agencies that such areas be

excluded as a matter of law.

For the reasons explained below, Richland requests that the ex clusion for "rice growing" be moved from the second bulleted item listed above involving "artificial lakes or ponds" (79 Fed. Reg. 22263, section (b)(5)(ii)) to the first item encompassing "artificially irrigated areas" (79 Fed. Reg. 22263, section (b)(5)( i)). In addition, language should be added to ensure that the exclusion applies to any areas whose topography lawfully was altered for rice growing prior to the enactment of the Clean Water Act and its regulations, and that the exclusion will apply prospec tively to rice growing areas that may change to some other crop or usage.

Specifically, Richland recommends the following changes (shown in italics and strikeout) to the text of these two elements of section (b) of the proposed rule excluding specified

features from the definition of ''waters of the United States":

 Artificially irrigated areas , including rice growing areas, that would revert to upland should application of irrigation water to that area cease. The exclusion for rice growing areas includes any areas whose topography lawfully was graded, diked or otherwise altered for rice growing prior to the enactment of the CleanClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

168 Water Act and its regulations, and applies prospectively to rice growing areas that may change to some other crop or usage.

 Art ificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, and settling basins , or rice growing . (p. 2)

Agency Response: The agencies maintain current policy in the final rule language

and the a gencies believe this suggestion would alter and expand current practice

without sufficient reasons to do so . In all cases in order to be excluded a feature must meet the definitions in paragraph (b). See also the summary response at 7.3.2

.

7.232 The agencies' p roposed rule appropriately recognizes this historically unique aspect of rice cultivation. As the preamble to the proposed rule states, the agencies propose, for the first time, to exclude by rule certain waters and features over which the agencies have, a s a policy matter, generally not asserted jurisdiction in the past. The express exclusion for "rice growing" clearly means that the agencies do not intend for lands used for rice production to be considered "waters of the United States" for Clean Water Act purposes, even if they would otherwise satisfy the regulatory definition. (79 Fed. Reg. 22217

- 22219, 22263.)

This is an important addition to the proposed rule. But unless the wording of this provision is expanded and clarified as Richland suggests, the i ntent and goals underlying the exclusion risk becoming diluted and misapplied in practice. (p. 3)

Agency Response: See response above.

7.233 The Term "Dry Land" Is Problematic in the Unique Context of Rice Growing

As noted above, the exclusion for "rice growing" is embedded in a n element of section (b) of the proposed rule that would exclude "artificial lakes and ponds created by excavating and/or diking dry land." The term "dry land" in connection with rice growing leaves open the troubling possibility that an entire parcel of l and in rice production could be deemed jurisdictional by a future regulator if some small part of the parcel was wetland prior to conversion.

This is no small potential problem. California is the second largest producer of rice in the United States, contri buting about one quarter of the nation's rice yield. According to historic data, in California's Central Valley, which is a primary production area, only a very small percentage of active rice production areas would have been converted entirely in dry upla nds. (ECORP 2014). Thus, the exclusion should be changed to acknowledge the unique nature of rice farming and to reflect that lands of any type that have been excavated, diked, or otherwise converted for rice farming purposes are excluded from jurisdiction

. Moving the exclusion for rice growing from (b)(5)(ii) to (b)(5)(i) of the proposed rule, as Richland urges, would help to resolve this problem by removing the requirement that the rice growing area was created in "dry land." Without this change to the te xt of this provision, a strong risk exists that the exclusion could be applied too narrowly or not at

all in some cases

- despite the clear intent that the proposed rule broadly and definitively

exclude rice lands.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

169 This change makes sense because rice grow ing areas are more akin to "artificially irrigated lands" than to "artificial lakes or ponds" used for such purposes as "stock watering" and "settling basins." If the rice growing provision is left where it is in the rule, it could mistakenly be read to ap ply only when "artificial ponds and lakes" are present, i.e., only when a rice field is inundated. This is an important consideration because the waters used to flood rice fields are regularly drained due to cultivation practices. They may also be drained for economic reasons such as fallowing during droughts or conversion to other crops or other uses. Property owners

- here, rice farmers

- deserve the assurance that their lands will not fall in and out of jurisdiction or be subject to capricious

case

- by

- ca se jurisdictional determinations. Making this simple change to the language of the proposed rule will provide greater certainty to regulators and to land owners by helping to ensure that these lands retain their nonjurisdictional status. (p. 3

- 4)

Agency Response: See respo nse above. In addition, in the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial p urposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so

because of another incidental benefi cial use.

7.234 The Historic Use of a Site Should Be Considered

The changes in wording that Richland recommends would take into account the historic use of sites and the fact that conversion to rice growing, in many instances, lawfully occurred prior to the en actment of the federal Clean Water Act and its regulations in areas where wetlands once existed. (See discussion above.) The language should make clear that areas converted to uplands for rice growing purposes prior to the Act's passage

should fall within the jurisdictional exclusion as a matter of law. This additional language would be in harmony with the longstanding principle that laws and their regulations are not retroactive in application. ( Hughes Aircraft Co. v. U.S . (1997) 520 U.S. 939, 946 [presump tion against retroactive legislation "is deeply rooted in our jurisprudence"]; Golden Gate Audubon Society, Inc. v. U.S. Army Corps of Engineers (N.D. Cal. 1988) 717 F.Supp. 1417, 1421

- 1422 [Corps could find that dry land was a site's normal

circumstance b ecause site was transformed into dry land by 1975 and regulatory definition does not retroactively extend jurisdiction].)

Such additional clarifying language also would be in harmony with the well

- established principle that the Clean Water Act does not reg ulate areas that were historically graded out of wetlands and into uplands. Under a frequently cited distinction, the U.S. Army Corps of Engineers has recognized that wetlands may be altered in a legitimate and permanent manner (construction of levees or p lacement of drainage tiles, for example) that eliminate an area's wetland properties, thereby removing the area from jurisdiction under Section 404 of the Clean Water Act (33 U.S.C. § 1344). In contrast, lands where individuals engage in ongoing management or removal of hydrophytic vegetation or wetland hydrology to deliberately evade Section 404 regulatory requirements could come under Section 404 jurisdiction. (See, e.g. Regulatory Guidance Letter 90

- 07, Paragraph 4; 42 Fed. Reg. 37128 [preamble to regula tory definition of "wetlands" responds to "situations in which an individual would attempt to eliminate the permit reviewClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

170 requirements of Section 404 by destroying the aquatic vegetation"]; Army Corps of Engineers Wetlands Delineation Manual, January 1987, p. 73 ["Unauthorized activities"].)

This practical distinction recognizes that lands that have experienced one

- time structural

type changes to topography that permanently alter a site's hydrology should not be regulated as long as the changes were conduct ed lawfully prior to the Clean Water Act's enactment. Rice lands that have been graded and diked to facilitate the inundation necessary for cultivation fall squarely under this rubric. (p. 4

- 5)

Agency Response: The agencies discuss the exclusion for rice fields that were

c onst ructed by excavating or diking dry land in the summary response to 7.3. 2 below. This exclusion does not apply to cases where rice fields were created in wetlands. The agencies agree that waters and wetlands that were lawfully converted to dry land are no longer “waters of the United States” under the CWA . However, consistent with current practice, where the rice field was created in a wetland and retains wetlands characteristics, it may be considered jurisdictional where it meets the definitions in paqr agraph (a). In such cases, of course, permitting exemptions for normal farming activities would apply

.

Water Law (Doc. #13053)

7.235 ...we recommend that there be a categorical exemption given to all artificial lakes and ponds, artificial water features, ornamental waters, swimming pools, and water filled depressions constructed within upland or dry land regardless of use or size. (p. 11)

Agency Response: The final rule clarifies exclusions for these features.

Coalition of Renewable Energy Landowner Associations (Doc. #146 26)

7.236 With respect to the exemption for artificial and man

- made structures such as up land ditches, lakes, stock ponds, small ornamental waters, water filled depressions created incidental to construction activity, and subsurface drainage systems, it is uncle ar as to what is available remedies that would prevent these exemptions from becoming “non

exempt” as illustrated before with the “gullies”. What is to pre

- vent a depression, swale, rice pond or artificial lake or pool from being having its status changed to a wetland or “other waters” if/they are not maintained and/or remediated in a timely and regular fashion for the designated purposes listed in the exemption? Is a requirement for concrete of fabric lining necessitated to keep stock ponds and depressions from becoming an “other water” In some areas, concrete lined stormwater channels are considered “Waters of the United States” We are not convinced that any exemption cannot at a future juncture become jurisdictional as a tributary, other water or wetland without detailed clarification. (p. 7)

Agency Response: So long as a feature meets the definitions under paragraph (b),

it is excluded and is not subject to jurisdiction

.

Pennsylvania Independent Oil and Gas Association (Doc. #15167)

7.237 Exclusions

— The exclusions to the definition of "waters of the United States" are very specific and. seemingly arbitrary. PIOGA asks that the exclusions for (1) "artificial lakesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

171 or ponds created by excavating and/or diking dry land and used exclusively f or such purposes as stock watering, irrigation, settling basins or rice growing" and (2) "artificial reflecting pools or swimming pools created by excavating and/or diking dry land" be expanded to include other types of ponds excavated in dry land, includi ng impoundments and stormwater ponds. (p. 17)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of an other incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds c reated in dry land are excluded. Because of public comments, the agencies now identify stormwater ponds excavated in dry land as excluded under paragraph (b). However, impoundments of waters of the US have historically been and continue to be jurisdictiona l under the rule.

Ducks Unlimited (Doc. #11014)

7.238 G. Waters that are not “Waters of the United States”:

We agree with the inclusion of the expanded list of waters that would be explicitly excluded from jurisdiction. As the agencies well know, this proposed r ule has been controversial, to a large extent because of confusion about which waters would be excluded and which could have jurisdiction restored (again, recognizing the overarching fact that the proposed rule will cover significantly fewer waters than ar e jurisdictional under the existing regulations). Much of the expressed concern and confusion has stemmed from within the agricultural community. Codification of the agricultural and other exclusions, direct and clear communications about them, and follow up administration of the rule that is fully consistent with those communications on a nationwide basis, will go a long way toward increasing certainty and predictability on the part of farmers, ranchers, and other landowners.

In addition, given the concern s that are often raised about small, inconsequential (from the perspective of affecting “waters of the U.S.”) water bodies, we believe it is also important and useful for the agencies to have taken the step of explicitly listing a number

of exclusions rele vant to those concerns, e.g., gullies, rills, non

- wetland swales, small ornamental waters, and water

- filled depressions incidental to construction activity, among others. Expressly making all of these kinds of waters non

- jurisdictional by rule will help co nvey clarity and address many of the concerns of important segments of the landowning public and, in particular, the farming and ranching communities. (p. 34

- 35)

Agency Response: The agencies have finalized all exemptions described above from the proposed rule into the fin al rule, and hope this clarity will address concerns of the farming and ranching communities.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

172 Defenders of Wildlife and Patagonia Area Resource Alliance (Doc. #16394)

7.239 II. Defenders Objects to the Agencies’ Proposal to Exclude Groundwater and Other Categori es of Waters From the Protections of the Clean Water Act.

Defenders disagrees with the agencies’ proposal to categorically exclude waters listed in proposed subsections (t)(1)

- (5), particularly groundwater, from Clean Water Act protections because this pro posal is not grounded in science or the law. As detailed by the individual members of the SAB, the scientific evidence gathered for the Connectivity Report demonstrates that these waters, at a minimum, should be included in the “other waters” category in p roposed subsection (s)(7) because they often play critical ecological, hydrological, and biological roles in connecting surface waters and waters of the U.S. As the SAB report concluded, “[t]he Clean Water Act exclusions of groundwater and certain

other ex clusions listed in the proposed rule and the current regulation do not have scientific justification.” SAB letter at 3. In addition, these exclusions have no legal justification. Excluding the waters listed in proposed subsections (t)(3)

- (t)(5) based on

“l ongstanding practice” and administrative convenience (79 Fed. Reg. at 22217) is not a reasonable or permissible interpretation of the statute. See Chevron , 467 U.S. 837, 842

- 43. (p. 1

- 2)

Agency Response: As explained in the preamble, the agencies believe the caselaw

suppo rts the conclusion that some water features should not be subject to jurisdiction, and longstanding practice is an appropriate consideration.

Delaware Riverkeeper Network (Doc. #15383)

7.240 Comment 8c: Exclusion of Gullies, Rills, Non

- Wetland Swales, Artificia l Irrigated Areas, Artificial Lakes and Pond, Reflection Pools and Water

- Filled Depressions: Section 328.3(b)(5)(i), (ii), (iii) and (v)

Gullies, rills, and non

- wetland swales are important for moving water between jurisdictional waters and should not be e xcluded from jurisdiction. Such water bodies

should be examined on a case

- specific basis as science does not support the exclusion of this class of waters as a whole.8 Also, artificial lakes and ponds and reflection pools may be connected to jurisdictional waters by shallow or deeper groundwater, and therefore a blanket exclusion should not be provided for these water bodies. (p. 5)

Agency Response: The exclusions reflect the agencies’ long

- standing practice and technical judgment that certain waters and features are not subject to the CWA. The exclusions are also guided by Supreme Court cases. The significant nexus

standard arises from the case law and is used to interpret the terms of the CWA. Thus, a significant nexus determination is not a purely scientific inquiry, but rather is a determination by the agencies in light of the statutory language, the statute’s goals, objectives and policies, the case law, the relevant science, and the agencies’ technical expertise and experience. The plurality opinion in Rapanos also noted that there were certain features that were not primarily the focus of the CWA. The Supreme Court has recognized that clarify ing the lines of jurisdiction is a difficult task: “Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may l ie shallows, marshes, mudflats,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

173 swamps, bogs

— in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of ‘waters’ is far from obvious.” Riverside Bayview at 132

- 33. The exclusions reflect the agencies’ determinations of the lines of jurisdiction based on science, the case law and the agencies’ experience and expertise.

Community Watersheds Clean Water Coalition, Inc. (Doc. #16935)

7.241 Although “waters that are su bject to the ebb and flow of the tide” are listed as jurisdictional under (a)(1), the agencies are proposing to exclude mudflats and sandflats,

both tide

- dependent, from their jurisdictional list. The agencies need to clarify this apparent contradiction. ( p. 6)

Agency Response: While mudflats and sandflats are no longer specifically called out in the rule, such features would be jurisdictional where they meet the definitions in paragraph (a).

Water Environment Federation (Doc. #16584)

7.242 The Proposed Amendments to What is Cons idered an “Adjacent Water” Must be

Reexamined to Consider Wastewater Treatment Processes

Many wastewater treatment processes, including man

- made spreading basins, are located near or even “adjacent” to rivers and tributaries that have been (or under the pr oposed rule, would be) designated as waters of the United States. and may be located in the riparian or floodplain areas of these rivers. Because the proposed rule defines “adjacency” and includes the incorporation of waters within the flood plain or ripar ian area of a designated water of the U.S. as also being a jurisdictional water (see section 328.3(c)(2)

- (4), FR 22263), this could lead to an interpretation that such spreading basins and artificial storage ponds are jurisdictional.

... Within the proposed rule, there are two specific exemptions that could potentially address this issue. Pursuant to section 328.3(b)(5)(i) and 122.2(b)(5)(i)2, a spreading ground could fall under the definition of “[a]rtificially irrigated areas that would revert to upland

sho uld application of irrigation water to that area cease” (79 FR 22263 and 22268) Spreading grounds utilized by wastewater treatment facilities are generally artificially created and might not otherwise exist aside from the application of wastewater effluent to the area. However, without being explicitly stated, it is not clear enough that this definition would apply to upland wastewater spreading grounds. Similarly, pursuant to section 328.3(b)(5)(ii) and 122.2(b(5)(ii), wastewater and recycled water ponds a nd spreading grounds could fall under an expanded definition of “[a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock water, irrigation, settling basins, or rice growing.” (79 FR 22263 and 22268) The word “such” seems to indicate that these are merely examples, not an exhaustive list, and thus spreading grounds utilized in conjunction with and/or as part of the overall wastewater treatment process could fall under this exclusion. However, w ithout specific references within these provisions to treatment ponds and spreading grounds, WEF and its members are very concerned that these facilities could become jurisdictional andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

174 create significant problems for agencies attempting to protect public health and the environment. This, we would request the explicit inclusion of the terms such as “spreading grounds” and “wastewater and recycled water storage,” within this section. (p.

4

- 5)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling

s tructures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water

reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing in terest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.

The exclusion also covers water distributary structures that are built in dry land for water recycling. These features often connect or carry flow to other water recycling structures, for example a channel or canal that carries water to a percolation pond. The agencies have not considered these water distributary systems jurisdictional where they do not have surface connections back into, and contribute flow to,

“waters of the United States.” In contrast, the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice ass erted jurisdiction over these types of features when created in dry land. The exclusion in paragraph (b)(7) codifies long

standing agency practice and encourages water management practices that the Agencies agree are important and beneficial. See essay a nd responses below regarding the exclusion in paragraph (b)(7).

7.3.1 Artificially Irrigated Areas that would Revert to Upland should Application of Irrigation

Water to that Area Cease

Summary Response

The agencies have identified artificially irrigated areas th at would revert to upland should application of irrigation water to that area cease as generally not “waters of the United States” inClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

175 previous preambles or guidance documents. Federal Register notices by the Corps on November 13, 1986, and by EPA on June 6, 1988 identify, among other general exclusions, “a rtificially irrigated areas which would revert to upland if the irrigation ceased. ” Under this previous preamble guidance the agencies could determine that a particular feature generally considered nonjurisdictional was a “water of the United States.” The agencies do not retain that authority

for features excluded under the rule. The proposed rule containe d this exemption unchanged from previous preamble language. The rule identifies as excluded “ artificially irrigated areas that would revert to dry land should application of water to that area cease,” substituting “dry lands” for “uplands.”

T he agencies cl arify in the preamble that “dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like. However, it is important to note that a “water of the United States” is not conside red “dry land” if it lacks water at a given time. Similarly, an area remains “dry land” even if it is wet after a rainfall

event.

The agencies also here clarify their longstanding view that only the specific land being directly irrigated that would rev ert to dry land should irrigation cease is excluded ; it is not the case that all waters within watersheds where irrigation occurs are excluded

.

Comments included a request to delete the limitation to areas that would revert to upland and to
include all ir rigated areas under the exemption for prior converted cropland

. Commenters also asked whether irrigation must cease for the exemption to be applied or whether alternative approaches to show lack of hydrology without irrigation would suffice to demonstrate applicability of the exemption and asked whether it mattered if the area being irrigated was considered dry land before the irrigation occurred. As discussed further in the comment responses below, the agencies are not removing the longstanding limitation, nor do they choose to conflate two separate exclusions. In addition, the agencies longstanding practice regarding the implementation of the exclusion for artificially irrigated areas to address the later comments

.

Specific Comments

Office of the Governo r, State of Montana (Doc. # 16694)

7.243 Amend the proposed definition of the listed features exempted from the definition of "waters of the U.S." in proposed 40 CFR 230.3(t)(5) with one of the following: strike from the proposed definition of "artificially irri gated areas" the language that states “that would revert to upland should application of irrigation water to that area cease;" or replace the entire definition of "artificially irrigated areas" with the existing exemption under 33 CFR 328.3(a)(8), which st ates: "Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final l authority regard ing Clean Water Act jurisdiction remains with the EPA." (p. 4)

Agency Response: The commenter requests that the agencies remove a longstanding limitation on this exclusion by removing the clause about reversion to upland in case irrigation ceases

. The commenter’s suggestion would substantially alter the scope of this exclusion, and there was no reason provided why the agenciesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

176 should adopt the suggested approach. T he agencies feel it is important and appropriate to maintain consistency with longstanding practice wh ile bringing the exclusion into rule language. Even where the exclusion does not apply because hydrology remains even without artificial irrigation, the area would have to meet the definitions in paragraph (a) in order to be considered a water subject to t he

Clean Water Act.

In addition, the rule maintains the longstanding exclusion for prior converted cropland. The exclusions for prior converted cropland and artificially irrigated areas that would revert to dry land if irrigation ceases are separate exclu sions that

address distinct factual scenarios

. The agencies believe combining the exclusions would create significant confusion, if it was even possible. Prior converted cropland, by its definition, was cropped prior to December 23, 1985 with an agricultu ral commodity; was cleared, drained or otherwise manipulated to make it possible to plant a crop; has continued to be used for agricultural purposes; and has lost wetland characteristics such that it does not flood or pond for more than 14 days during the growing season. The final rule does not change the exclusion for prior converted cropland and comments on the prior converted cropland exclusion are beyond the scope of the rulemaking

.

California Department of Transportation, Division of Environmental Ana lysis (Doc. #19538)

7.244 5) Caltrans requests that the exclusion for artificially irrigated areas be further clarified. As currently written, it is unclear whether or not irrigation must cease in order to exclude these areas, or if other documentation showing t hat the area would lack hydrology

without t h e irrigation would be sufficient to support the exclusion of an irrigated area. (p. 2)

Agency Response: Continuing longstanding agency practice, irrigation does not

need to cease in order to meet the exclusion. There are a number of tools such as maps, aerial photos, remote sensing, and water budgets that can show that an area was previously dry land and can show an area would lack hydrology without the irrigation.

Board of Supervisors, Sutter County, Californi a (Doc. #19657)

7.245 ...we request that the agencies make the following changes and additions to the exceptions in the Proposed Rule.

 Clarify that "artificially irrigated areas" described in proposed 33 CF.R § 328.3(b)(i) will be deemed to revert to uplands absen t irrigation if the area being irrigated was dry land when the irrigation began or if the irrigatio n started before July 25, 1975. (p. 5)

Agency Response: In most cases, where an area was dry land before it was irrigated it will r e vert to dry land when irrigation ceases. C ontinuing longstanding agency practice, irrigation does not need to cease in order to meet the exclusion. There are a number of tools such as maps, aerial photos, remote sensing, and water budgets that can show that an area was previously dry land and can show an area would lack hydrology without the irrigation. The exclusion for artificially irrigatedClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

177 areas that would revert to dry land if irrigation ceased is activity based not time

based. This means there is no date before which irrigation must have begu n in order to qualify for t he exclusion. The commenter does not explain why a date limitation is appropriate or the particular date was chose n

. As mentioned in the summary, Federal Register notices by the Corps on November 13, 1986, and by EPA on June 6, 1 988 identify, among other general exclusions, “artificially irrigated areas which would revert to upland if the irrigation ceased.” This exclusion has been in place since then and will continue to be in place with this rule.

Earthjustice (Doc. # 14564 )

7.246 C. Subsection (t)(5)(i), (ii)

— “Artificially” Irrigated or Created Areas.

This part of the rule is simply unclear. What is meant by “artificially” irrigated areas that would return to upland? This implies that there are areas that are so heavily irrigated they turn into wetland or other bodies of water that might be considered a water of the U.S. It is unclear what fact pattern this language is trying to address. The next subsection specifically refers to rice growing, so it appears (t)(5)(i) does not refer to the kind of flood irrigation that might occur in a rice operation.

This exclusion (and the exclusion for ditches) also raises a question with respect to point sources and protected waters. EPA knows that many of the categorical exclusions are also signific ant sources of pollutants to water of the U.S. Artificial irrigation, rice growing operations (that fill and then later drain fields) and other “artificially” created areas such as settling basins, flush huge amounts of sediments, nutrients and chemicals s uch as pesticides into our waters. If they are not themselves protected waters subject to meeting water quality standards or protected by permit requirements if someone is to discharge to them, then EPA must ensure that the pollutants that the artificial a reas contribute to waters of the U.S. do not escape regulation and continue to jeopardize downstream waters, currently severely polluted with agricultural runoff wastes. If they are not waters of the U.S. and they are not regulated as discrete point source conveyances of pollutants, then a very large problem for our waters will be unaddressed and wholly unregulated. (p.

13

- 14)

Agency Response: In practice across the country some areas are irrigated through man

- made systems sufficiently to develop wetland characteristics. T his is a

comm on occurrence, for example, in the arid west, which relies heavily on artificial irrigation. Under longstanding agency practice, codified into regulations through this final rule, areas that are so heavily irrigated they develop wetland

characteristics are not considered waters of the US if they would revert to upland should irrigation cease

. The agencies note that if a feature functions as a “point source” under CWA section 502(14)), discharges of pollutants to waters through

these featu res would be subject to other CWA regulations (e.g., CWA section 402).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

178 7.3.2. Artificial Lakes or Ponds Created by Excavating and/or Diking Dry Land and Used

Exclusively for Such Purposes as Stock Watering, Irrigation, Settling Basins, or Rice Growing

Summary Res ponse

The Agency received a total of 53 comments that were categorized under Section 7.3.2

- Artificial Lakes or Ponds Created by Excavating and/or Diking Dry Land and Used Exclusively for Such Purposes as Stock Watering, Irrigation, Settling Basins, or Ric e Growing . Most of the comments centered on requesting language changes to the rule to increase the list of exclusions,

and/or broaden the definition within the exclusions. Some of these comments were incorporated during the rulemaking process , for examp le, suggestions that cooling ponds be considered non

jurisdictional ( see below).

In the exclusion for artificial lakes or ponds, the agencies have removed language regarding “use” of the ponds, including the term “exclusively.” More importantly, the ag encies recognize that artificial lakes and ponds are often used for more than one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. For example, rice fields are flooded for the purpose of weed control an d to facilitate rice cultivation, but these rice fields are often extensively used by waterfowl and other wildlife. The agencies agree wi th commenters

who raised concerns that rice fields “used” both for rice growing and waterfowl habitat should

continue to be excluded even where they are not used “exclusively” for a single purpose. The change to the exclusion reflects the agencies’ practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of ano ther incidental

beneficial use.

The agencies have also added farm ponds, log cleaning ponds, and cooling ponds to the list of excluded ponds in the rule based on public comments. The list of ponds has always been illustrative rather than exhaustive, an d the additions respond to requests to clarify that farm ponds, log cleaning ponds, and cooling ponds created in dry land are excluded. The agencies recognize that cooling ponds may be exempt under the waste treatment exemption as well as this provision. Listing cooling ponds as an example here does have any relation to the waste treatment system exemption, and the agencies are not reopening that exclusion. Additional ponds will also likely fall under the exclusion based on site specific evaluation, includ ing, for example, fire control ponds and fishing ponds excavated from dry land. Artificial lakes and ponds created in dry land that do not connect to jurisdictional waters are covered by this exclusion. Where these ponds do connect and discharge to juris dictional waters, the agencies will evaluate factors such as the potential for introduction of pollutants and coverage under an issued NPDES permit. As a general matter, ponds created in dry land that discharge to “waters of the United States” are

covered by the exclusion where such discharge is regulated under a NPDES permit. Conveyances created in dry land that are physically connected to and are a part of the excluded feature are also excluded. These artificial features are working together as a system , and it is appropriate to treat them as one functional unit. The agencies emphasize that ponds excluded from “waters of the United States” can, in some circumstances, be point sources of pollution subject to section 301 of the Act. In addition, the agen cies make clear in the preamble that waterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

179 features identified in paragraph (b) as excluded will not be “waters of the United States,” even if they otherwise fall within one of the categories in paragraph (a)(4) through (a) ( 8).

The phrase “dry land” appe ars in the 1986 and 1988 preambles, and the agencies believe the

term is well understood based on almost 30 years of p ractice and implementation. However, in keeping with the goal of providing greater clarity, section IV

. I of the preamble clarif ies that “ dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like.

To address the comments correlating to ponds or lakes for recreational purposes, flood reduction,

erosion red uction, or for purposes that are not listed for exclusivity, the Agency redirects the commenters to the traditional CWA 404 process for making a jurisdictional determination

f ollowed by the CWA 404 permitting process.

Specific Comments

Oak Ridge National L aboratory (Doc. #14463)

7.247 The meaning of the exclusion at (b)(5)(ii) should be clarified. It could be interpreted in contradictory ways. On one hand, the lake or pond must be "used exclusively" but then examples of such uses are listed "for such purposes as stock watering, irrigation, settling basins, or rice growing" which implies that there are unlisted purposes that would qualify under this exception. The Agencies need to be clear if these are examples or an exclusive list of purposes. If they are examples list, how do you determine when or if other examples qualify for the exception? The current

- day purpose of the water feature, even if different than past purposes, should be used to evaluate this exception. (p. 2)

Agency Response: See summary response.

Tennessee Department of Environment and Conservation (Doc. #15135)

7.248 The exemption for artificial lakes or ponds created by excavating and/or diking dry land unnecessarily includes the requirement that they be used exclusively for such purposes as stock watering, irri gation, settling basins, or rice growing. The state agencies understand these features to be wholly in uplands with no hydrological connection to any waters; therefore, it seems unnecessary to additionally mandate their use for specific purposes. We reques t EPA and the Corps remove the qualification for specific uses or explain why this additional qualification is necessary under the CWA. (p. 29)

Agency Response: See summary response.

Arizona Game and Fish Department (Doc. #15197)

7.249 6. The Department requests that 40 CFR 230. 3 (t)(5)(ii) be revised to additionally exclude from the definition of waters of the United States the following: fish hatcheries; fish production ponds; wildlife watering ponds; and wildlife water catchments. (p. 3)

Agency Response: See summary response.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

180 Southern Ute Indian Tribe Growth Fund (Doc. #15386)

7.250 9. Comments on the exclusion of manmade structures

... It is not clear whether the Proposed Rule would exclude, for example, artificial lakes and ponds that have connections to downstream waters, underground stormwater drainage, natural versus artificial swales, roadside ditches, stormwater quality basins, bioswales, or treatment wetlands regardless of whether they were installed to meet the requi rements of

the Clean Water Act.

... With respect to artificial lakes and pond s that have connections to downstream waters, underground stormwater drainage, natural versus artificial swales, roadside ditches, stormwater quality basins, bioswales, or treatment wetlands, it would be important to exclude these types of structures from jurisdiction since many of them provide both water quality and hydrologic benefits to downstream water. (p. 9)

Agency Response: See summary response above. With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see

summary re sponse 7.4.4. See summary response at 7.3.7 for additional information regarding swales.

West Virginia Department of Environmental Protection (Doc. #15415)

7.251 The WVDEP recommends broadening the exclusion for artificial lakes so that impoundments constructed for industrial purposes by the mining and oil and gas industries are also excluded. As to the coal mining industry, the WVDEP regulates these structures under the state counterpart to SMCRA, W. Va. Code 8 22

- 3

- 1, et seq. As to the quarry mining industry, t he WVDEP regulates these structures under the state Quarry

Reclamation Act. W.Va. Code 22

- 4

- 1, et seq. As to the oil and gas industry, the WVDEP regulates these structures under the West Virginia Horizontal Well Control Act, W.Va.

Code 9 22

- 6A

- 1, et seq. I n the oil and gas industry, these structures are built for two primary purposes, both of which provide significant environmental benefits. Freshwater impoundments enable gas operators to withdraw the water they need for their operations

from the State's st reams during periods of higher flow and store it until needed for use. This allows the operators to protect streams by avoiding excessive withdrawals of water during periods of lower flow. Other impoundments provide storage for flowback water from gas oper ations. This allows operators to: (1) re

- use contaminated flowback water, avoiding the need for additional fresh water withdrawal from streams; and (2) avoid the need to treat and discharge the stored flowback water. (p. 14)

Agency Response: See summary response. Also see summary response at 7.4.2 with regard to wastewater recycling features.

Allen Boone Humphries Robinson, LLP (Doc. # 19614)

7.252 "Artificial Lakes, Ponds, and Pools"Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

181 The agencies further propose to exclude lakes, ponds and pools that have been created for specif ically listed purposes: stock watering, irrigation, settling, rice growing, reflecting, swimming and ornamentation. To qualify for the exclusion, these features must have been created by excavating and/or diking dry land. These proposed exclusions are whol ly inadequate for our clients, who create lakes, ponds and pools for a variety of non

excluded purposes, such creating conditions suitable for non

- swimming recreation, such as fishing and canoeing, and for restricting the flow of storm water runoff to redu ce peak

flows so as to minimize down

- slope erosion and turbidity. (p. 9)

Agency Response: See summary response. With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response 7.4.4.

Board of Supervisors, County o f Nevada, California (Doc. #6856)

7.253 The proposed rule states: Artificial lakes or ponds created by excavating and or diking dry land and used exclusively for purposes such as stock watering, irrigation or rice growing are not "waters of the United States". T he rule also states: Lakes and ponds (either natural or man

- made) that contribute flow either directly or indirectly are considered tributaries and are "waters of the United States". Unless clarified, these conflicting statements opens the potential for an y stock watering pond, irrigation pond or rice growing area that overflows during the rainy season and contributes flow to be considered jurisdictional. (p. 2)

Agency Response: See summary response. Also see overarching summary response for topic 7.

Central Valley Soil an d Water Conservation District and Penasco Soil and Water Conservation District, Artesia, Maryland (Doc. #14943)

7.254 The proposed rule states that it will not change the jurisdiction over farm ponds or stock

tanks. This is not true. The rule would make farm or stock tanks meaningless by regulating low spots as "navigable waters

. " The rule will also prevent landowners from building and/or maintaining a pond or stock tank. Existing tanks would also not be in compliance if the water runs through or around a spillwa y after the tank was full. (p. 3)

Agency Response: See summary response. Also see overarching summary response for topic 7. Arizona Game and Fish Department (Doc. #14789)

7.255 The Department requests that 40 CFR 230.3 (t)(5)(ii) be revised to additionally exclude

from the defin ition of waters of the United States the following: fish hatcheries; fish production ponds; wildlife watering ponds; and wildlife water catchments. (p. 3)

Agency Response: See summary response.

City of Glendale, Arizona (Doc. #15054)

7.256 Artificial Lakes and Ponds

Water is a precious resource in the arid West. To save potable water resources, effluent provided by the City of Glendale is used for a variety of purposes such as irrigating golf courses and parks. For example, the Arrowhead Lakes development in northern GlendaleClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

182 includes multi

- purpose lakes. In support of continued use of effluent, the City of Glendale agrees with the proposed exclusion of artificial lakes or ponds used for irrigation. However, the City of Glendale respectfully requests the removal of

"ex clusively" from the exclusion language as these lakes and ponds often provide aesthetic amenities as well. (p. 2

- 3)

Agency Response: See summary response.

Board of Supervisors, Nevada County, California (Doc. #18894)

7.257 The proposed rule states: Artificial lakes or ponds created by excavating and or diking dry land and used exclusively for purposes such as stock watering, irrigation or rice growing are not "waters of the United States". The rule also states: Lakes and ponds (either natural or man

- made) that contribute flow either directly or indirectly are considered tributaries and are "waters of the United States". Unless clarified, these conflicting statements opens the potential for any stock watering pond, irrigation pond or rice growing area that overflows during the rainy season and contributes flow to be considered jurisdictional. (p. 2)

Agency Response: See summary response. Also see overarching summary response for topic 7.

Board of Supervisors, Sutter County, California (Doc. #19657)

7.258 ...we request that the agencies make the followi ng changes and additions to the exceptions in the Proposed Rule.

 Add a definition for "excavating and/or diking dry land," applicable to proposed 33 CF.R §328.3(b)(5)(ii), (iii) and (iv), which clarifies that features created before July 25, 1975, are deem ed to have been created by excavating or diking dry land without a factual showing by the applicant of conditions existing at the time of excavation. Suggested language: "Excavating or diking dry land means that the land being excavated or diked was not a water of the United States when the excavation or diking occurred; the excavation or dike was authorized by a section 404 permit; or the land was excavated or diked before July 25, 1975." Also clarify

that the non

-

jurisdictional status of lands subject to proposed 33 CF.R § 328.3(b) (5)(ii), (iii) and (iv) continues to apply for 10 years after the land is no longer used for the purpose specified in each subsection. (p. 5)

Agency Response: See summary response.

Washington State Water Resources Association (Doc. # 16543 )

7.259 Despi te the proposals stated objective to add clarity to the regulatory process, the proposal in fact creates great confusion and uncertainty. Some of the unanswered questions have been alluded to...Other issues that must be addressed, through

clarification and i n the context of an ongoing dialogue amongst stakeholders, include:

...Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

183  How will the agencies treat artificial lakes or ponds that are not used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing, including stormwate r detention ponds;

... (p. 17, 18)

Agency Response: See summary response above, as well as summary responses at

7.4.2 and 7.4.4.

U.S. Chamber of Commerce (Doc. #14115)

7.260 Art ificial Lakes, Ponds, and Pools

The Agencies further propose to exclude lakes, ponds and pools used excl usively for listed purposes: stock watering, irrigation, settling, rice growing, reflecting, swimming and ornamentation. To qualify for the exclusion, these features must have been created by excavating and/or diking dry land . In other words, if a stock wa tering pond or a settling pond was excavated in a small wetland area that was not jurisdictional (maybe nothing more than a low spot), the resulting stock pond or settling pond is not excluded from jurisdiction and instead may be regulated. Given that pond s and pools tend to be dug in low spots, these proposed exclusions are wholly inadequate.

In addition, while the exclusions may theoretically benefit some uses, they do nothing for most industrial/commercial operations. Lakes, ponds and pools are used thro ughout the country for a wide variety of industrial uses, as well as for combinations of different uses. Examples include: storing storm water for use as a dust suppressant; storing storm water for use in industrial processes; storing storm water for use i n fighting fires; creating

conditions suitable for non

- swimming recreation, such as fishing and duck hunting; and restricting the flow of storm water runoff to reduce peak flows so as to minimize down

slope erosion and turbidity. (p. 34

- 35)

Agency Response: See summary res ponse. With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response 7.4.4.

South Carolina Chamber of Commerce (Doc. #14535)

7.261 B. Industrial Holding Ponds

There should be no question that man

- made industr ial or commercial holding ponds that store rain water, stormwater runoff, and water withdrawn from other water bodies for eventually use by the facility, such as cooling water or process water, should also be clearly and explicitly excluded from re gulation. Some facilities may discharge treated effluent to such ponds for re

- use, in which case the same exclusion should apply. There is an exemption for "artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for suc h purposes as stock watering, irrigation, settling basins, and rice growing." It may have been the agencies' intention to broadly exclude man

- made reservoirs constructed for commercial or industrial purposes but the language provided does not appear to pro vide clarity on this point. The Chamber requests that the rule add language to clarify that ponds and impoundments used for water storage and transfer are not WOTUS. (p. 5)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

184 Agency Response: See summary response. Also see summary response at 7.4.4 with regard to stormwater control features.

Dow Chemical Company (Doc. #15408)

7.262 Dow and Dow Agricultural Sciences (DAS) facilities...create and/or manage artificial lakes, ponds, basins, field tiles and engineered farm dra inage systems (e.g., field waterways, field strips) and basins that are not used exclusively for purposes such as stock watering, irrigation, settling basins, or rice growing. The most common usage of

these items is for erosion control. It is common to for m artificial lakes and ponds to retain storm water through the use of dams, terraces, and similar engineered structures. These structures exist both on conventional farms as well as in many industrial R&D/field stations. Many of these man

- made structures a re constructed under USDA oversight. Thus, these infrastructure elements should also be excluded from the jurisdiction of

waters of the United States for the same reasons described in comment #3 above.

Dow Recommendation : The proposed sh ould rule be amende d to exclude... artificial lakes, ponds, and basins, as well as field tile and engineered farm drainage systems (field waterways, filter strips, etc.) that are not used exclusively for purposes such as stock watering, irrigation, settling basins, or rice grow ing from those waters covered by the CWA. The inclusion of these “waters” such would be an undue burden on the regulated community, unnecessary paperwork for government agencies, costly to implement, and will not have a positive environmental effect on our nation’s water resources. (p. 7)

Agency Response: See summary response. Also see summary responses at 7.3.6, 7.4.2, and 7.4.4.

Federal Water Quality Coalition (Doc. #15822.1)

7.263 3. Artificial lakes or ponds

Under the proposed rule, artificial lakes or ponds that are used exclusively for purposes such as stock watering, irrigation, settling basins, or rice growing are not waters of the U.S. Expressly excluding only specific types of artificial lakes and ponds has created significant uncertainty about the status of other art ificial lakes and ponds not explicitly included in the exemption language, such as cooling ponds and fire water retention ponds. (p. 19)

Agency Response: See summary response.

NAIOP Commercial Real Estate Development Association ( Doc. #14621 )

7.264 4. §328.3(b)(5)(ii). Artificia l Ponds.

There is much concern in the regulated community that stormwater facilities currently exempt from regulations as a WOTUS could become regulated by the proposed rule, 135
and that the adjective “exclusively” is extremely limiting. Therefore, to codify statements from the Agencies to the contrary, please revise this section to read as follows:

135 Thi s concern clearly generated EPA Q&A #22. However, it only addresses rain gardens

– and not other

stormwater facilities.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

185 (ii) Artificial lakes or ponds created by excavating and/or diking dry land and used for such purposes as stock watering, irrigation, settling basins, rice growin g, or wet or dry stormwater facilities, stormwater Best Management Practice (BMPs), flood control facilities, Low Impact Development (LID) facilities or other systems designed to control and treat stormwater runoff.

This achieves the stated purpose of the proposed rule and eliminates the current ambiguities. (p. 3

- 4)

Agency Response: See summary response. With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response 7.4.4.

Staker Parson Companies (Doc. #15618)

7.265 EP A's website indicates that pits excavated in uplands are exempted from the rule but EPA did not include that exemption in the rule itself. This is a crucial issue for the industry. Pits excavated in uplands for sand and gravel must be included in the rule, which should also state that an excavated pit is not "abandoned" if it is still undergoing reclamation under State law or otherwise permitted. I am furthermore concerned about pits in states that do not have reclamation jurisdiction over sand & gravel (Ut ah for example) and how this would apply if there was no formal reclamation obligation. Throughout the West there are sand & gravel operations that are inactive due to economic conditions. Some sites have been inactive for close to a decade but will be put back into production given better economic conditions. (p. 1)

Agency Response: See summary response at 7.3.5

.

Texas Mining and Reclamation Association (Doc. #10750)

7.266 3. The Agencies Should Clarify that the Artificial Ponds and Lakes Exclusion Applies to Certain Water Featu res on Mine Sites

As an initial matter, TMRA notes that, if the Agencies clarify the scope of the waste treatment system exclusion as suggested above, TMRA's following comments with respect to artificial ponds and lakes are moot, as the features discussed below would be excluded due to being part of a wastewater treatment system. However, to the extent that the Agencies do not adopt TMRA's suggested language concerning the waste treatment system exclusion, the artificial ponds and lakes exclusion should be modified accordingly.

The Agencies have long recognized that artificial ponds created on dry land to collect and retain water and that are used as settling basins are generally not jurisdictional. 136 The proposed rule would clarify that "[a]rtificial lakes o r ponds created by excavating and/or diking dry land and used exclusively for such purposes as ... settling basins," among other purposes, are per se not jurisdictional. 137 TMRA supports the categorical exclusion of

136 See, e.g., 51 Fed. Reg. at 41,217 (Corps regulatory preamble); 53 Fed. Reg. at 20,765 (EPA regulatory preamble).

137 79 Fed. Reg. at 22, 263.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

186 such ponds and lakes, but would urge the A gencies to make it clear that this exclusion encompasses the many types of ponds on mine sites that are used for the collection, re

direction, and concentration and/or settling of solids. 138

As currently drafted, the regulatory text appears to apply to sedim ent ponds and other onsite ponds on mine sites that are used fo r concentration and settling. 139 But, TMRA is concerned that some might interpret the exclusion as being limited to water features associated with agriculture given that the term "settling basins " appears in the regulatory text among a list of references to agricultural activities, i.e., "stock watering," "irrigation," and "rice growing." The preamble to the proposed rule does not shed any light on whether the reference to "settling basins" encomp asses such features used in other industries. The Agencies should therefore clarify that this exclusion is not limited to agriculture

- related ponds by explicitly referencing "industrial sediment ponds" or "industrial settling basins" in the list of permiss ible purposes, and should also clearly note

that on

- site ponds which may incidentally manage water but which are constructed for purposes including emergency firewater and cooling water ponds, ponds used for dust suppression water, evaporation ponds, and w ater recycle ponds qualify for this exclusion as well, In addition, the Agencies should clarify in the preamble that the exclusion is not confined to water features relating to agricultural activities.

The Agencies should further clarify that artificial po nds meet the requirement of being [excavated on dry land even if such features are constructed within floodplains or riparian areas land even if such features might share a subsurface hydrological connection to a downstream jurisdictional water. The exclus ion would be rendered meaningless if it does not apply to ponds constructed on lands within floodplains and riparian areas. The same would be true if the Agencies (or a citizen plaintiff) could claim that a pond is a "water of

the United States" based sole ly on a groundwater connection that ultimately develops

between an on

- site pond and an ephemeral tributary, to use an example. (p. 17

- 18)

Agency Response: See summary response. Also see summary response at 7.4.2 with regard to exclusion of wastewater recycling features.

Pennsylvania Coal Alliance (Doc. #13074)

7.267 8. The Proposed Rule should be revised to expand coverage of the exclusions for settling ponds and other types of ponds created by excavating dry land.

In addition to exclusions for waste treatment systems and converted croplands, the Proposed Rule would codify exclusions for a long list of other practices and water features that have been generally regarded as excluded from the definition of “waters of

t he United States.” While the PCA supports the incorporation of these exclusions into the Proposed Rule, the PCA also supports the comments of NMA and WAC, which seek

138 As previously explained, TMRA believes that these sorts of ponds are already excluded as waste treatment systems. But to the extent they do not fall within that existing exclusion, they should nevertheless remain non

jurisdictional under this newly codified exclusion.

139 Cf 64 FR 39252,39332 (July 21,1999) (Corps nationwide permit recognizing that "[s]upport facilities are essential components of a mining operation" and authorizing facilities such as "settling ponds and settling basins, ditches, storm water and surface water management facilities" among others).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

187 further clarification and expansion of the applicability of these exclusions. The agencies state that these exclusions will provide more “clarity, certainty and predictability” in identifying jurisdictional waters. 140 However, as written, the exclusions are very narrow, with little explanation to why certain waters and features are excluded and o ther similar waters and features, presumably, are not. For example, the Proposed Rule excludes “ “artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing,” but does not clarify whether the reference to “settling basins” is intended to apply only to agricultural purposes or to all industries that use settling basins. This exclusion should be revised to make clear that it applies to all indust ries and all types of settling basins. (p. 13)

Agency Response: See summary response.

Newmont Mining Corporation (Doc. #13596)

7.268 The Agencies’ Proposal, and in particular Appendix A to that Proposal, states that a “significant nexus” can be established though a deep groundwa ter connection or through the fact that organisms might use a certain isolated water as well as a nearby tributary as part of their habitat. See 79 Fed. Reg. at 22246. The Preamble also states in Appendix B that if an artificial pond collects meteoric wate r that otherwise might flow to a TNW, that might also be deemed a “significant nexus.” Id. at 22261. While the vast majority of Newmont’s artificial ponds are lined (and in many cases double

- lined), and the groundwater is monitored and the distance to grou ndwater is typically hundreds of feet, Newmont cannot guarantee that there could never be one molecule of a solution from some of its artificial ponds that might migrate to deep groundwater and from there eventually migrate to a tributary network that gets to a TNW. Moreover, even though Newmont’s operations are all located in arid to semi

- arid climates, precipitation does occur, and Newmont’s artificial ponds will collect meteoric water, some of which perhaps otherwise might have migrated to a tributary ne twork that reaches a TNW if the artificial pond had never existed. Moreover, at least in the case of some stormwater retention ponds, certain biota may use the pond, as well as perennial streams, as habitat.

Perhaps of more concern, statements made in the Preamble and Appendix A to the Proposal suggest that, in determining the jurisdictional status of Newmont’s artificial ponds, a regulator would have to take into account all “similarly situated” ponds in the same watershed. See 79 Fed. Reg. at 22204, 2224 6. That means that if artificial ponds operated by another operator

– whether or not a mining operator

– in the watershed release solutions to surface water, or release solutions to deep groundwater, or prevent rainfall from reaching a TNW, or provide habi tat to biota that also inhabits a TNW, then somehow Newmont’s ponds could potentially be deemed jurisdictional even though they

have no such characteristics.

That result, we submit, is unfair. It would put Newmont and other mining companies in a position of having in effect to prove to the Corps (and EPA) that every single artificial pond on their properties should not be deemed jurisdictional. The expense and

140 79 Fed. Reg. 22217

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

188 inconvenience of doing so, and the fact that current operations would be thrown into limbo, would be enormous

– and totally unnecessary, because these ponds could never affect (significantly or otherwise) a TNW. In this respect, we incorporate the comments of the WAC and NMA dealing with the “science” upon which the Agencies’ Proposal is

based. As far as we have been able to ascertain, the claimed scientific underpinning for the Agencies’ Proposal contains no evidence, or discussion, that artificial ponds such as those operated by Newmont in the arid West could have any impact, much less a significant adverse impact, on the chemical, biological, or physical integrity of a TNW located from 50 to 200 miles away.

Finally, we note that any attempt by EPA to assert jurisdiction over such ponds would run directly counter to the square holding in SWANCC that EPA and the Corps have no jurisdiction under the CWA to regulate isolated ponds that do not discharge to TNWs, or to a tributary system to a TNW. (p. 19

- 20)

Agency Response: See summary response. Also see overarching summar response at topic 7.

7.269 d. The Scope of the Artific ial Pond Exception is Likewise Unclear: Nor is it clear whether Newmont’s artificial ponds fall within the “artificial lakes or ponds” exception contained in the Agencies’ Proposal. That exception excludes from the scope of jurisdictional waters: “Artifici al . . . ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.” See, e.g., paragraph (b)(5)(ii) at 79 Fed. Reg. 22263. Newmont’s artificial ponds are in th e main created by excavating and/or diking dry land; however, as noted earlier, at times Newmont must divert portions of ephemeral drainages that could be deemed jurisdictional waters under the Agencies’ Proposal. Moreover, it is unclear whether the purpos es to which mining ponds are put

– e.g., retention of stormwater, retention and recycling of cooling fluids, retention and recycling of tailings slurry, retention and recycling of pregnant and barren heap leach solutions

– would fall within the phrase “use d exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.”

The Proposal’s Preamble contains no discussion on the universe of artificial ponds intended to be encompassed by this new exception. While settling does, and is intended to, occur in mining artificial ponds, the illustrative examples given in the exception all appear to be related in some way or form to agriculture or silviculture activities, and so one could argue that only ponds used in those industries were intended to be excluded. We submit that mining artificial ponds are as, if not more, deserving of exemption than agriculture and silviculture artificial ponds. As discussed earlier, Newmont’s artificial ponds are permitted and regulated under the comprehen sive State WPCA designed to ensure that there is no discharge to surface or groundwater and that any releases to groundwater will be detected and remediated. Moreover, they are located in the arid and

semi

- arid West, where evaporation exceeds precipitation , and the chances are virtually nil that the contents of these ponds could ever reach surface water.

The bottom line, therefore, is that some of Newmont’s artificial mining ponds might be deemed per se jurisdictional under the Agencies’ Proposal (if they a re adjacent to an ephemeral drainage that is otherwise deemed a jurisdictional water under the Proposal),Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

189 and all of Newmont’s artificial ponds could potentially be deemed “other waters,” because they might collect rainfall that might otherwise flow to a j urisdictional water, or might be connected by deep groundwater to jurisdictional waters many miles away, or might provide habitat to organisms that also have habitat in jurisdictional waters, or might be deemed “similarly situated” to ponds operated by oth ers. Moreover, although Newmont has good arguments that its artificial ponds should fall within the “waste treatment system” or “artificial pond” exceptions, there is no guarantee that every regulator, or indeed any regulator, would so concur. Thus, Newmon t’s artificial ponds could potentially be deemed regulated waters of the United States, even though: (1) no one would ever, or could ever, conclude that they have any kind of impact, significant or otherwise, on a TNW; (2) the “science” relied upon by the Agencies as a basis for the Proposal does not establish or support in any way the assertion of jurisdiction over such artificial ponds; and (3) assertion of jurisdiction over such artificial ponds would be directly contrary to the holding in SWANCC that is olated ponds cannot be deemed jurisdictional by the Agencies. (p. 21

- 23)

Agency Response: See summary response. Also see summary responses at 7.4.2 and 7.4.4 regarding exclusions for wastewater recycling and stormwater control

features.

7.270 5. Suggested Changes to the Proposa l

As noted, EPA and Corps officials with whom we have spoken about this matter have been adamant that the Agencies’ Proposal was never intended to encompass mining artificial ponds, and associated constructed ditches and channels, such as those that are

op erated by Newmont and other hardrock mining companies in the arid and semi

- arid West. But given the wording of the Proposal, we cannot be sure that every Corps or EPA regulator will reach the same conclusion. We therefore urge that EPA make clear in any

fi nal rule that such artificial ponds, and associated ditches/channels, are not jurisdictional waters. Solutions include the following: 141

... 2. Amending the existing “artificial lakes or ponds” exception contained in subsection (b)(5)(ii) of the Proposal to re ad: “Artificial lakes or ponds created primarily by excavating and/or diking dry land and/or diverting ephemeral or intermittent drainages and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing, or managing p rocess waters, wastewaters, solutions, groundwater or other liquids associated with the extraction, beneficiation or processing of ores and minerals, and all culverts, ditches, constructed channels or conveyances associated with such lakes or ponds.”

3. Cr eating a new exception in subsection (b) of the Proposal for: “Industrial artificial ponds and associated culverts, ditches, constructed channels, and other conveyances, that are permitted under State or federal law to manage solutions, wastewater, process water, stormwater, or other liquids.” (p. 26

- 27)

141 In suggested amendments to existing Proposal language, added text is underlined and deleted text is struck through.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

190 Agency Response: See summary response. Also see summary responses at 7.4.2 and 7.4.4 regarding exclusions for wastewater recycling and stormwater control

features.

Corporate Communications and Sustainability, Domtar Corpo ration (Doc. #15228)

7.271 Exemption for Artificial Lakes or Ponds

The proposed rule continues the existing exemption from CWA jurisdiction for “Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stoc k watering, irrigation, settling basins, or rice growing.” (122.2(b)(5)(ii)) This long

- standing exemption recognizes that these bodies of water are fundamentally different from the nation’s waters that Congress intended to address through the CWA, and that there would be little or no regulatory benefit and substantial confusion if EPA or the Corps, state agencies or private citizen

- suit plaintiffs tried to apply CWA requirements to these water bodies.

However there are the following potential ambiguities in this exemption which the agencies need address for any final rule for improved clarity and reduced confusion.

 Substitute the term “dry land,” with upland and define uplands as recommend above. If the agencies view it necessary to continues to use the term “dry lands” then discuss that “dry lands” mean the same as uplands (using the definition of uplands provided above).

 It is unclear how much these four listed purposes limit the exemption. Because the exemption speaks of purposes “such as” the four listed ones, they cannot be the only purposes covered by the exemption. The agencies need to clarify in any final rule that the exemption is intended to cover any artificial lakes or ponds created by excavating or diking dry land, that are used for a particular p urpose or purposes and these four listed purposes are just examples.

 The requirement that the pond be used “exclusively for such purposes” adds just another layer of ambiguity. While it appears the intent behind the “exclusively” language was to make sure that a lake or pond whose use is unrestricted is not considered exempt just because it is used for one of the listed purposes. However if applied literally, very few lakes and ponds might be said to be used for only one purpose, although they might have be en excavated for only one purpose, or their owner’s primary use maybe for only one purpose. Domtar recommends the agencies remove the “exclusively” qualification and explain in a final rule that the exemption is not meant to include lakes or ponds whose us e is unrestricted (e.g., an artificial lake that functions like a natural lake and is a source of irrigation water) however the exemption is also not lost if the artificial lake or pond is used for more than one purpose. (p. 13

- 14)

Agency Response: See summary response.

Ba rrick Gold of North America (Doc. #16914)

7.272 There is no exclusion in the existing rules for artificial lakes and ponds, but the agencies note in the preamble that, “by longstanding practice,” they have not considered theseClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

191 features (among others) to be “wate rs of the United States.” 79 Fed. Reg. at 22,218. The agencies thus propose a new exclusion for “[a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.” Id. The exclusion could apply to Barrick ponds, but its applicability is not clear. The listed examples of covered ponds seem mostly to apply to agricultural activities, and thus do not clearly apply to process ponds and other ponds rela ted to industrial activity such as gold mining.

Some of Barrick’s process ponds, mine water and storm water management ponds do function as “settling ponds.” The primary purpose of tailing ponds is to settle out solids and recycle process water. Similarly, infiltration basins and sedimentation ponds function as settling ponds. These features therefore arguably would be covered by the proposed exclusion. However, even if that were the case, other ponds, such as Barrick’s pregnant and barren ponds associated with heap leaching, would not be covered because they are not designed to be settling ponds. (p. 28)

Agency Response: See summary response. Also see summary responses at 7.1, 7.4.2, and 7.4.4.

Montana Wool Growers Association (Doc. #5843.1)

7.273 The Proposed Rule's exclusions imply that land features would be jurisdictional but for

the exclusion.

b. Section (b)(S)(ii) excludes "artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation,

set tling basi ns, or rice growing," implying all ponds caused by natural depressions, all abandoned (but functional) reservoirs, and all ponds constructed for recreation, personal enjoyment, or to increase the value of property, would be jurisdictional. The

exclusio n sh ould be rewritten to give fu ll effect to the exclusion to avoid creating false impressions about the breadth and scope of the CWA. For example, "artificial lakes or ponds including, but not limited to, those used for farming, stock watering, settling basin s, recreation, and landscaping." (p. 10)

Agency Response: See summary response.

Alameda County Cattlewomen (Doc. #8674)

7.274 The agencies’ exclusion of “artificial ponds excavated wholly in uplands,...used exclusively for livestock watering...” is both unclear and not encompassing of many ponds used by the livestock industry. The agencies, once again, have simply forgotten to define key terms. What does the word “exclusively” mean in terms of uses? Does this

mean that a cost

- shared pond that has been stocked with fish for the occasi onal recreational fishing use is now outside the exclusion? If a farmer or rancher’s children swim occasionally in the pond, is it now outside the exclusion?

Farmers and ranchers utilize both natural ponds and artificial ponds for watering their

livestock. Both natural and artificial ponds are maintained by farmers and ranchers, which benefits not only the livestock but also the wildlife in the area. Our industry’s preservation of such ponds, whether natural or artificial, benefits everyone. The proposed

ru le will create a disincentive from maintaining and creating such beneficial ponds.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

192 Although Sec. 404(f)(1)(C) exempts construction and maintenance from Sec. 404 permitting, it does not protect farmers and ranchers from Sec. 402 NPDES permits, or from 404 p ermits for activities outside the scope of “construction and maintenance” or “normal” under both the (C) and (A) exemptions. Calling all natural ponds a “water of the U.S.” and perhaps including many artificial ponds that might not be exclusively used

for stock watering is inappropriate. These isolated waters are beyond the scope of “navigable waters” and the agencies should recognize them as such.

ACCW assert that all stock ponds should be excluded from the category of “waters of the U.S.” because they are not navigable in

- fact and they lack a significant connection to any TNWs. We also assert that it is ludicrous that all natural ponds in a region or floodplain can be aggregated under the agencies “similarly situated” criteria to find a significant

nexus w here one does not exist individually. Additionally, the burden on livestock producers to determine whether their ponds meet the criteria for exclusion is extremely high, and opens their operations up to citizen suit litigation, where the farmer or rancher himself will need to defend his stock pond use in court. (p. 24)

Agency Response: See summary response. With regard to significant nexus for

non

- excluded ponds, see Section III of the preamble and Section II of the Technical Support Document. It remains the government’s burden to demonstrate a particular water is a “water of the United States.”

California Agricultural Commissioners and Sealer Association (Doc. #9670)

7.275 IV. Contradictions within the rule concerning agricultural practices.

Some sections of the proposed rule appear to contradict other sections. For example, the proposed rule states: Artificial lakes or ponds created by excavating and or diking dry land and used exclusively for purposes such as stock watering, irrigation or rice production are not "waters of th e United States". However, the rule also states: Lakes and ponds (either natural or man

- made) that contribute flow either directly or indirectly are considered tributaries and are "waters of the United States." Interpreting the two sections

would lead to t he conclusion that any stock watering pond, irrigation pond or rice growing area that overflows during the rainy season and contributes flow would no longer be exempt. (p. 2)

Agency Response: See summary response. Also see overarching summary

response for topic 7.

Montana Farm Bureau Federation (Doc. #12715)

7.276 Under the proposed rule, any impoundment of those drainage features will be an unlawful discharge absent a section 404 permit, and the resulting farm pond itself will become a “Water of the United States.” In addition, any construction of a farm pond in a small low spot (wetland) swept into CWA jurisdiction under the “adjacent” or “other waters” provisions of the proposed rule (also explained above) will also require a section 404 permit and the consequent pond/reservoi r would itself be considered a water of the U.S. Not only would this render the pond largely unusable, it makes no sense that a farmer or rancher would have to acquire a 404 permit in order to build a structure to create another

“Water of the United States .”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

193 This aspect of the rule will affect countless farm and stock ponds. By expanding jurisdiction to include common ephemeral drainages and isolated wetlands, the rule will prohibit the impoundment of natural drainages and low spots. Places like this are th e only logical locations to build farm or stock ponds. Farm or stock ponds, called reservoirs here in Montana, are typically constructed at natural low spots to capture rain water and snow melt through ephemeral drainages. Depending on the topography, rese rvoir construction is virtually impossible without diking or damming a natural drainage. For that reason, the proposal’s exclusion for “artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock w atering, irrigation, settling basins, or rice growing” is almost meaningless. As explained above, “dry land” is interpreted to exclude anything that qualifies as a wetland or any ephemeral feature where storm water naturally migrates. This leaves little “d ry” land available for the construction of reservoirs, and if land qualified as “dry” under this rule is dammed, it is highly unlikely that it will collect any water, especially in areas that receive very little precipitation.

Consequently, reservoirs are not excavated on hill tops and ridges. They are excavated at low spots where water naturally flows and collects. Thus, the proposed farm pond exclusion will provide no relief for most farmers and ranchers. (p. 6

- 7)

Agency Response: See summary response.

Bayless and Berkalew Co. (Doc. #12967)

7.277 The ambiguous wording of the rule is ripe for litigation as left to the interpretation of agency enforcement and environmental litigants. In one section of the proposed rule the agencies exempt specific agricultural construction, such as stock ponds, from permitting while in the pre

- amble of the document making such statements as “As a matter of law and science, an impoundment does not cut off connection between upstream tributaries and a downstream WOTUS and the agencies technica l expertise and practical knowledge confirm that impoundments have chemical, physical, and biological effects on

downstream waters.” (p. 4)

Agency Response: See summary response.

North American Meat Association and American Meat Institute (Doc. #13071)

7.278 The proposed rule al so would exclude lakes, ponds, and pools created for specifically listed purposes: stock watering, irrigation, settling, rice growing, reflecting, swimming, and ornamentation. To be excluded these features must have been created by excavating and/or diking dry land. The proposed exclusions are insufficient because, although they may benefit some agricultural uses, they do nothing for most industrial or commercial operations. Lakes, ponds, and pools are used for an array of industrial purposes, and

combinati ons of different uses. The lakes, ponds, pools exclusion should be broadened to accommodate legitimate industrial and commercial purposes. (p. 9)

Agency Response: See summary response. Also see summary responses for 7.4.2 and 7.4.4 with regard to exclusions for wastewater recycling and stormwater control

features.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

194 USA Rice Federation (Doc. #13998)

7.279 ...the proposed exemptions for ponds used for irrigation and rice growing do not achieve their intended purpose. First, a rice field may not be considered a lake or pond. Second,

a s discussed above, rice fields and onsite reservoirs for irrigation water do not have exclusive uses. Rice farmers may grow other crops in rotation. Some rice farmers also use their fields to raise crawfish. Many rice farmers allow sportsmen to hunt waterf owl on their property. In fact, USA Rice Federation has a partnership with Ducks Unlimited,

the “USA Rice

- DU Stewardship Partnership” that serves as a model of cooperation and communication between a farm group and a conservation organization. Its purpose is to promote the conservation and enhancement of wildlife habitat on working lands. Under the proposed rule, rice farmers would have to deny access to sportsmen for hunting to allow their rice fields and reservoirs to meet the terms of the exclusion for p onds, contrary to the objectives of our partnership. (p. 8

- 9)

Agency Response: See summary response.

Kansas Agriculture Alliance (Doc. #14424)

7.280 This exception struggles for the same reason as the exception for ditches in that it fails to define what is meant by “excavation and/ or diking of dry land . . . .” 142 Without a definition, the only certainty that agriculture has is to excavate a pond on top of a hill. This is particularly troubling to a western state like Kansas where annual rainfall can be

as little as fifteen inches per year. In such situations, ponds cannot function unless the pond is constructed on an ephemeral or intermittent stream or feature that has a bed, bank, and OHWM. It seems odd that EPA and the Corps would not build this into the exception, as ephemeral and intermittent streams in the west have limited connection to a TNW. This not only forecloses the building of new ponds, but also maintenance of existing ponds.

In addition, the constraint that the pond be used exclusively for stock watering, irrigation, a settling basin, or rice growing is further troubling. The term exclusively suggests that no other use may be permitted or the pond would lose its exempt status. Many farm ponds may be primarily used for agricultural purposes, but may also provide auxili ary benefits to the owner such as wildlife habitat or recreational uses. Incidental utilization of a pond or lake for such purposes should not destroy the exception. (p. 7)

Agency Response: See summary response. Also see the tributaries compendium (topic 8).

Missouri Soyb ean Association (Doc. #14986)

7.281 Extremely narrow exemptions

- The rule also overreaches by narrowing the intent of the exemptions to the point that we are unsure how they would ever apply, rendering them nearly useless in the real world. The exemptions shoul d apply broadly, without exceptions or strings attached to them.

142 79 Fed. Reg. at 22263.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

195 Below is an example of some areas where the exemption should be clarified and/or

broadened.

...c) (t)(S)(ii) .

. . "Artificial lakes, ponds

... used exclusively for such purposes as stock watering... ." No lake or pond is exclusively used for anyone purpose and it is next to impossible to prevent wildlife from purposefully using it. Thus the rule overreaches by narrowing the exemption with the word 'exclusive ' to an extent t hat it will have no applicab ility as no feature will ever meet this standard. The exemption should apply broadly, without except ion or strings attached, to a number of non

- natural purposes including agricultural, wastewater and stormwater control and treatment, ornamental

waters, ae sthetic purposes, swimming pools , and reflecting pools among many others... (p. 7

- 8)

Agency Response: See summary response.

Colorado Cattlemen's Association (Doc. #15068)

7.282 The agencies' exclusion of "artificial ponds excavated wholly in uplands, ...used exclusively for livestock watering..." is both unclear and not encompassing of many ponds used by the livestock industry. The wording of this exclusion leaves too many questions for livestock producers. It also well documented that these ponds benefit

wildlife and the liv estock industry is instrumental in preserving and maintaining these extremely important resources. Consequently, these features should not be regulated and should be broadened even further to exclude all stock ponds from the category of "waters

of the U.S. " Additionally, because they are not navigable in

- fact and they lack a significant connection to any TNWs they should be excluded. The burden on livestock producers to determine whether their ponds meet the criteria for exclusion is extremely high, and ope ns their operations up to citizen suit litigation, where the fanner or rancher himself will need to defend his stock pond use in court. (p. 7

- 8)

Agency Response: See summary response. It remains the government’s burden to demonstrate a particular water is a “water of the United States.”

North Carolina Farm Bureau Federation (Doc. #15078)

7.283 The exclusion "[a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growi ng" is far too narrow. The restriction to "dry land" is problematic, because farm ponds are not built on the tops of hills because they will never fill. This exclusion may also inadvertently narrow the agricultural pond exemption under Section 404(f). Anot her problem is the phrase "used exclusively for such purposes as ..." This seems to mean that the pond could not be used for more than one purpose, such as stock watering and irrigation. It is commendable that the Agencies are trying to carve out exclusion s, but the pond exclusion should be much more expansive to include situations in the real world. (p. 16)

Agency Response: See summary response.

Jensen Livestock and Land LLC (Doc. #15540)

7.284 v. ExclusivelyClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

196 The agencies have failed to provide clarity or certainty regarding livestock ponds. The proposed rule states, “Specifically, the agencies propose that the following are not ‘‘waters of the United States’’ notwithstanding whether they would otherwise be jurisdictional under section (a):...Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.” (Proposed Rule at 22218 (emphasis added)).

Under the exclusion for artificial ponds the agency has failed to extrapo late on and clearly define the extent of the agencies’ meaning in using the word “exclusively.” The livestock industry heavily utilizes artificial stock ponds to deliver water to our animals. The exclusion of such ponds only when they are “exclusively” use d for watering of livestock raises many questions. Does the term mean for commercial purposes? Does it mean 90 percent of the time what is the purpose for which it is used? If the pond is also used as a water retention system, does it lose its excluded sta tus. If the livestock producers’ children swim in the pond occasionally does that mean it is sometimes used for recreation and loses its excluded status? If, as many stock ponds provide, they are used by wildlife does that negate its excluded status? Jense n Livestock and Land LLC. assert the agencies should have provided an explanation about the extent of the qualification that only artificial ponds used exclusively for stock watering are excluded.

The Merriam

- Webster definition of “exclusive” (root word) m eans “not shared: available to one person or group.” 143 As used in the exclusion for artificial ponds and lakes, it is apparent the only purpose that an artificial livestock pond can ever have is livestock watering. If at any time it is used for fishing, swi mming, ice skating, water retention, or any other purpose it would be removed from the excluded category and make it a “water of the U.S.” Jensen Livestock and Land LLC are extremely disappointed that the agencies have once again failed to adequately defin e what their exclusions actually mean, calling into question whether any water will actually fall into such categories. Jensen Livestock and Land LLC. believe that due to the subjective nature of the artificial ponds and lakes exclusion, very few livestock ponds will be excluded from the category of “waters of the U.S.” Jensen Livestock and Land LLC submit that the agencies should exclude from “waters of the U.S.” “all ponds used for livestock watering.” (p. 18

- 19)

Agency Response: See summary response.

National Barley Grow ers Association (Doc. #15627)

7.285 Stock Ponds. While EPA says that the Proposed Rule will not affect stock ponds, the language presented suggests otherwise. For example, the rule says that stock ponds are exempt only if they are “artificial” and used “exclusiv ely” for stock watering, irrigation, settling basins or rice growing. Natural stock ponds and stock ponds used for purposes other than those listed by EPA may meet the WOTUS definition. EPA and the CORPS should broaden the definition of stock ponds that fa ll outside federal regulatory authority. (p. 6)

Agency Response: See summary response.

143 Merriam

- Webster Dictionary, available at http://www.merriam

- webster.com/dictionary/exclusive

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

197 Florida Crystals Corporation (Doc. #16652)

7.286 The Proposed Rule also would assert jurisdiction over most artificial ponds and lakes in

Florida. Florida is dotted with artificial lakes and p onds, many of which have no surface

connection to offsite navigable waters. On farmlands, ponds are commonly present for purposes of stock watering, local drainage and irrigation, sumps, or other purposes. In urban areas, lakes and ponds were created as bo rrows pits, and now serve recreational, drainage, and other purposes. Since most of Florida originally was a wetland, such artificial lakes and ponds were typically excavated from wetlands, either pursuant to a CWA permit or before passage of the CWA itsel f.

Currently, such ponds and lakes are not subject to CWA regulatory jurisdiction. After the Supreme Court decision in Solid Waste Agency of Northern Cook County v. us. Army Corps of Eng'rs , 531 U.S. 159 (2001), the Army Corps Jacksonville District general ly has not asserted jurisdiction over such "isolated" lakes and ponds if they are located more than 200 feet away from a regulated navigable water and do not have a surface connection. U.S. General Accounting Office, Waters and Wetlands: Corps of Engineers

Needs to Evaluate its District Office Practices in Determining Jurisdiction 19 (Feb. 2004). (p. 4

- 5)

Agency Response: See summary response.

Richland Communities (Doc. #18793)

7.287 Rice Lands Converted to Other Uses in the Future Should Continue To Be Nonjurisdictional

Given th e agencies' intent to take uncertainty out of the equation for rice growing areas by making them nonjurisdictional as a matter of law, the language of the proposed rule should clarify that the legal designation can be relied upon and will not be revoked ba sed on a future changed use. The lack of such assurances could open the door to the exact problem the agencies seek to eliminate with the proposed rule

- costly case

- by

- case jurisdictional determinations for a historically unique type of land that the agenc ies have wisely determined should not be jurisdictional as a matter of law. For this reason, Richland requests that the proposed rule clarify that the legal nonjurisdictional status of rice growing areas applies prospectively. Otherwise, the legal status of a parcel of rice growing land could be based on a rule of law one day, and on the personal determination of a regulator the next. Such a scenario is illogical but unfortunately possible without the

clarification Richland seeks.

The preamble to the propo sed rule explains the agencies' rationale for "drawing lines and concluding that certain waters and features are not subject to the jurisdiction of the Clean Water Act," including rice growing areas. (79 Fed. Reg. 22218.) The agencies were guided by the Su preme Court's observation in United States v. Riverside Bayview Homes (1985) 474 U.S. 121 that it can be difficult to identify "where waters end" and the Supreme Court plurality's observation in Rapanos v. United States (2006) 547 U.S. 715

that "there were certain features that were not primarily the focus" of the Clean Water Act. As the preamble states:

One of the agencies' goals in this proposed rule is to increase clarity and certainty about the scope of "waters of the United States." To that end, the ag enciesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

198 propose not simply that these features and waters are "generally'' not ''waters of the United States," but that they are expressly not "waters of the United States" by rule .... These waters would not be jurisdictional by rule.

(79 Fed. Reg. 22218.)

In applying the spirit of the Rapanos plurality, the agencies have made the policy decision that rice growing areas do not fall under the primary "focus" of the Clean Water Act. Clarifying that this provision would not expire at some point in the future w ould help to strengthen the agencies' objective to provide "greater clarity, certainty, and predictability for the regulated public and the regulators" under the proposed rule. (79 Fed. Reg. 22189.) (p. 5

- 6)

Agency Response: See summary response. Also see overarching summ ary

response for topic 7.

Water Law (Doc. #13053)

7.288 Artificial Lakes and Ponds used exclusively for stock watering, irrigation, settling basins, or rice growing. This necessarily makes artificial lakes and ponds that are used for any other purpose jurisdicti onal, such as ponds used for piscatorial, fire suppression, geothermal exchange, dust suppression, municipal supply, stormwater retention, or augmentation purposes. No rationale for this limited list is given. Nearly all ponds in the

western United States are permitted or decreed for multiple uses. For example, a fire protection pond filled by a ditch in a rural area will now be subjected to federal jurisdiction. (p. 9)

Agency Response: See summary response. Also see summary response at 7.4.4 with regard to stormwater cont rol features.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

7.289 VI. Unanswered Questions

Despite the proposal’s stated objective to add clarity to the regulatory process, the proposal in fact creates great confusion and uncertainty...issues that must be addressed, through clarification and in the context of an ongoing dialogue amongst stakeholders,

include:

...

 How will the agencies treat artificial lakes or ponds that are not used exclusively for such purposes as stock watering, irrigation, se ttling basins, or rice growing, including stormwater detention ponds;

... (p. 6

- 7)

Agency Response: See summary response.

Oglethorpe Power Corporation (Doc. #14618)

7.290 The Proposed Rule also seeks to exclude "artificial lakes or ponds created by excavating and/or diking dry lan d and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing," as well as for use as artificial reflecting pools,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

199 swimming pools, and ornamental waters. However, the language of this proposed

exclusion is not all

- inclusive, thus creating ambiguity whether any other uses are allowed for "artificial lakes or ponds." Therefore, Oglethorpe Power seeks clarification regarding the following question:

 Would a retention or detention pond that was created by excavating dry land, which is currently used exclusively to collect or detain storm water, constitute an artificial lake or pond, such that the retention or detention pond would be excluded from the meaning of "waters of the United States"? (p. 3)

Agency Response: See summary response. Also see summary response at 7.4.4.

Santa Clara Valley Water District (Doc. #14776)

7.291 THE EXCLUSIONS SET FORTH IN THE PROPOSED RULE SHOULD BE

CLARIFIED AND EXPANDED IN CERTAIN RESPECTS

A. Artificial Groundwater Recharge Basins Should More Clearly Be Exclude d

Artificial groundwater recharge basins can be used to clean and store surface water underground for use later for irrigation, municipal, or industrial purposes. The Proposed Rule would exempt "groundwater'' and "[a]rtificial lakes or ponds created by exc avating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing." Although the District believes that this language is broad enough to cover artificial groundwater recharge basins, uncer tainty arises from the fact that artificial groundwater recharge basins are not specifically excluded. The Proposed Rule should clarify that artificial groundwater recharge basins

are excluded from the definition of "waters of the United States."

Sub

- parag raph (b )(5)(ii) should be amended as follows to add the underlined language: "Artificial lakes, basins, or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, groundwate r recharge , or rice growing;" (p. 6

- 7)

Agency Response: See summary response. Also see summary response at 7.4.2.

Tri

- State Generation and Transmission Association, Inc. (Doc. #16392)

7.292 The Agencies have long recognized that artificial ponds created on dry land to collect a nd retain water and that are used as settling basins ar e generally not jurisdictional. 144 The proposed rule would clarify that "[a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as ... settling ba sins," among other

purposes, are per se not jurisdictional. 145 Tri

- State supports the categorical exclusion of such ponds and lakes rather than relying on the 1986 preamble language, but would urge the Agencies to make it clear that this exclusion encompasses the many types of ponds on

mine sites and other facilities that are used for the concentration and settling of solids.

144 51 FR 41217 (1986 Corps regulatory preamble); 53 FR 20765 (EPA regulatory preamble).

145 79 FR 22263.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

200 As currently drafted, the proposed regulatory text appears to apply to sedimentation ponds and other onsite ponds on mine sites that are used f or concentration and settling. 146

But, Tri

- State, alon g with NMA, is concerned that some might interpret the exclusion as being limited to water features associated with agriculture given that the term "settling basins" appears in the regulatory text among a list of references to agricultural activities,

i.e. , "stock watering," "irrigation," and "rice growing." The preamble to the proposed rule does not shed any light on whether the reference to "settling basins" encompasses such features used in other industries, often for stormwater management and treatment purposes. The Agencies should therefore clarify that this exclusion is not limited to agriculture

- related settling basins by explicitly referencing "industrial sedimentation ponds" or "industrial settling basins" in the list of permissible purposes. In add ition, the Agencies should clarify in the preamble that the exclusion is not confined to water features relating to agricultural activities.

The Agencies should further clarify that artificial ponds meet the requirement of being excavated on dry land even if such features are constructed within floodplains or riparian areas, and even if such features might share a subsurface hydrological connection to a downstream jurisdictional water. The exclusion would be rendered meaningless if it does not apply to pond s constructed on lands within floodplains and riparian areas. The same would be true if the Agencies (or a citizen plaintiff) could claim that a pond is a "water of the United States" based solely on a groundwater connection that ultimately develops

betwee n an anthropogenic on

- site pond and an ephemeral tributary, to use an example. (p. 10)

Agency Response: See summary response. Also see overarch ing summary response for topic 7 and summary responses at 7.4.2 and 7.4.4.

Xcel Energy (Doc. #18023)

7.293 Section 328.3(b)(5)(ii) of t he Proposed Rule would exempt "artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing[.]" The scope of this exemption is unclear, because the term "exclusively" would indicate that only reservoirs used for the specifically listed purposes will qualify. However, the use of the phrase "such purposes as" would indicate that other purposes of use may also qualify for the exemption. Xcel Energy recommends that the revised Proposed Rule should not use the word "exclusively" to describe the purposes of use of the reservoir. The exemption from jurisdiction found in §404(f)(l) contains no such "exclusive" limitation. (p. 8)

Agency Response: See summary response.

Ducks Unlimited (Doc. #11014)

7.294 In the same vein, the exclusion of “artificial lakes or ponds created by excavating and/or diking dry land and used exclusively [emphasis ours] for such purposes as stock watering,

146 64 FR 39252, 39332 (July 21, 1999) (Corps nationwide permit recognizing that "[s]upport facilities are essential components of a mining operation" and authorizing facilities such as "settling ponds and settling basins, ditches,

stormwater and surface wate r management facilities" among others).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

201 irrigation, settling basins, or rice growing, ” should be modified. Many of the artificial reservoirs used for rice agriculture, for instance, serve additional, ancillary purposes such as waterfowl hunting. These water bodies, whose primary use is clearly to provide agricultural irrigation water and w hich have not previously been regulated, should not now be brought under the jurisdiction of the new rule because there are often secondary uses of that water. We leave it to the agencies to work with the agricultural sector to develop suitable wording to address this concern. (p. 21)

Agency Response: See summary response.

Southern Environmental Law Center et al. (Doc. #13610)

7.295 To avoid confusion the term “dry land” should be changed to “uplands.” To the extent that this is an alternative to using the farm pond exemption set forth in the statute, we support it. (p. 42)

Agency Response: See summary response. The agencies have deleted the term “uplands” in response to the confusion the term created and instead use the term “dry land,” which was used in prior preamble statements.

Center for B iological Diversity, Center for Food Safety, and Turtle Island Restoration Network (Doc. #15233)

7.296 The same thing is true for your new proposed exclusions of artificial lakes and ponds, artificial reflecting pools and swimming pools, “small ornamental waters ,” water

- fill depressions created “incidental to construction activity,” and your exclusion of gullies,

rills and non

- wetland swales. 40 CFR 122.2 (b)(5)(ii), (iii), (iv), (v), (vi). Here, again, even where these waters and features have a significant nexu s to and impact on the physical, chemical and biological integrity of downstream waters, you would define them

as non

- jurisdictional. However, this conflates the question of jurisdiction with level of concern regarding these particular “other waters”. In m ost cases these may be waters of no concern (e.g., swimming pools and reflection ponds), however, in other cases they may be of concern. These should not, then, be removed from the definition of “other waters” categorically. For instance, field runoff catc h basins from CAFO manure application fields where applications have been above agronomic rates would lose agricultural runoff exemptions and become, at least, point sources subject to CWA 301 prohibitions from discharge. Stock water ponds, where animals h ave direct contact with the ponds, should not be allowed to discharge to streams or rivers. If they have intermittent hydrologic interaction they would impact the physical, chemical and biological integrity of downstream waters in violation of the CWA. (p. 10)

Agency Response: See summary response. Also see overarching summary response for topic 7.

Patrick E. Murphy, Member of Congress, House of Representatives (Doc. #15371.1)

7.297 I. The Proposed Rule Will Greatly Increase the Scope of Federal Clean Water Act

Jurisdiction Over Farmlands

B. Most Farm Ponds Will Become “Waters of the United States”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

202  Currently, small isolated bodies of water (such as farm ponds and quarry lakes) are not regulated by the Corps or EPA under the Clean Water Act

 The Proposed Rule will make most such wa ters in Florida “waters of the United

States”

o The Proposed Rule states that all waters that are “adjacent” to federally

regulated waters are part of the “waters of the United States”

o “Adjacent” is defined to mean “neighboring,” which is further defined to mean “waters located within the ... floodplain [of jurisdictional waters] or waters with a shallow subsurface hydrological connection [to jurisdictional waters]”

o In Florida, with our flat topography and surficial aquifers, the “floodplain”

covers most farmla nds and there almost always is a subsurface connection between isolated ponds and some offsite body of water. (p. 1

- 2)

Agency Response: See overarching summary response for topic 7. The agencies have revised the definition of adjacency. See the preamble and Comp endium 3 regarding a djacent waters . As described in the rule and throughout this document,

t he agencies have identified a number of exclusions that may apply to agricultural operations.

Robert J. Goldstein & Associates (Doc. #16577)

7.298 3) Lakes or ponds created by excavating or diking dry land : Does “dry land” include former wetlands that were drained by ditching? Does “dry land” include intermittent streams that were diked/dammed during their fry season? If so, then the inconsistency described in #2 above is again a concern. Please define the concept of “dry land” more completely. (p. 2)

Agency Response: See summary response.

7.3.3. Artificial Reflecting Pools or Swimming Pools Created by Excavating and/or Diking

Dry Land

Specific Comments

Federal Water Quality Coalition (Doc. #15822.1)

7.299 3. Artificial pools.

Under the proposed rule, artificial reflecting pools or swimming pools created by excavating and/or diking dry land are not jurisdictional. Limiting the exemption to reflecting or swimming pools has created significant uncertainty about the status of other artificial pools that can hold water, such as concrete tanks and even secondary containment structures. (p. 19)

Agency Response: The final rule identifies several artificial water features that are excluded. Concrete tanks and secondary containment str uctures may be excluded under other exclusions, depending on the circumstances. The agencies disagree this exclusion creates significant uncertainty.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

203 Water Law (Doc. #13053)

7.300 Artificial Reflecting Pools or Swimming Pools created by excavating and/or diking dry land. This necessarily means that artificial pools for any purpose other than reflecting and swimming are subjected to federal jurisdiction. (p. 9)

Agency Response: The final rule identifies several artificial water features that are excluded. Artificial pools in ad dition to reflecting and swimming pools may be excluded under other exclusions, depending on the circumstances.

Berkshire Hathaway Energy Company (Doc. #14650)

7.301 C. The Agencies Should Clarify the Exemption for Artificial Lakes or Ponds to Also Exempt Draina ge Water or Channels from Artificial Lakes or Ponds

The Agencies should similarly consider modifications to the exemption for artificial lakes or ponds created by excavating and/or diking dry land. Waters that otherwise show

characteristics of waters of th e U.S. but are sourced from an exempt water such as an artificial pond should not be jurisdictional. The drainage water and channel from an exempt artificial pond created by excavating dry land should not create a nexus to the pond or themselves be jurisdi ctional. The Agencies should clarify this accordingly. (p. 5)

Agency Response: The final rule clarifies that excluded waters are never jurisdictional even where they otherwise fall into one of the categories in paragraphs (a)(4) through (a)(8).

Southern Environmental Law Center et al. (Doc. #13610)

7.302 Dry land should be changed to uplands. (p. 42)

Agency Response: The agencies retain the term “dry land” but have provided additional explanation of the term in response to requests for additional clarity.

7.3.4. Small Ornamental Waters Created by Excav ating and/or Diking Dry Land for

Primarily Aesthetic Reasons

Summary Response

The agencies have identified small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons as generally not “waters of the United States” i n previous preambles or guidance documents. The Federal Register notices by the Corps on November 13, 1986, and by EPA on June 6, 1988, preambles indicated these waters could be determined on a

case

- specific basis to be “waters of the United States.” The agencies do not retain that authority for features excluded under the rule. The proposed rule contained this exemption unchanged from previous preamble language.

Most commenters noted that the rule does not provide guidance on how “small ornamental

water s” will be distinguished from medium or large ornamental waters for jurisdiction. The example given was ornamental lakes within cities. Commenters were also uncertain about the status of large ornamental waters that are not primarily aesthetic, such as t hose that captureClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

204 stormwater and are ornamental. Commenters noted that no rationale was given for subjecting ornamental waters “not primarily used for aesthetics” to federal jurisdiction, and recommend that dry land should be changed to uplands.

In response to comments, t he agencies have deleted language that a small ornamental water must be created “for primarily aesthetic reasons.” The agencies agree this element introduces a “purpose test” that can be difficult to implement and is unnecessary for this exclusion

. With respect to “small,” r ather than focusing on the objective size of the water, it is more important to

consider whether the water is contributing to the chemical, physical, or biological integrity of

downstream waters

. The agencies anti cipate that excluded ornamental waters will not provide the

functions of natural water features. For example, in many circumstances ornamental waters such as fountains and reflecting pools and similar features are not part of the tributary system and do

n ot connect with downstream waters. If a water is conveying, treating, or storing stormwater, the agencies would refer to the exemptions for stormwater which is further explained in the summary for S ection 7.4.4. Rather than replace “dry lands” with upland s, which itself confused

many commenters, the agencies have clarified in the preamble that “dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like. However, it is impo rtant to note that a “water of the United States” is not considered “dry land” if it lacks water at a given time. Similarly, an area remains “dry land” even

if it is wet after a rainfall event.

Specific Comments

City of Glendale, Arizona (Doc. #15054)

7.303 There are many ornamental lakes within the City of Glendale, such as Coyotes Lakes near the hockey arena. It is unclear whether this lake would qualify under the exclusion

for small ornamental waters. The proposed rule does not provide guidance on how

"sma ll ornamental waters" will be distinguished from jurisdictional (medium or large)

ornamental waters. (p. 3)

Agency Response: See summary response above.

Rubber Manufacturers Association (Doc. #15419)

7.304 IV. RMA supports the exemption for small ornamental ponds

Section 122.2 (b)(5)(iv) exempts “small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons.” 76 Fed. Reg. 22268. RMA members’ ornamental ponds are not affecting the chemical, physical, or biological integrity of

waters of the U.S. RMA supports the exemption for small ornamental ponds. (p. 3)

Agency Response: The agencies agreed and retained the exemption for small ornamental ponds. See summary response above.

Federal Water Quality Coalition (Doc. #15822.1)

7.305 5. Small ornamental waters.

Small orn amental waters created by excavating and/or diking dry land for primarily aesthetic reasons are not jurisdictional. Limiting the exemption to small ornamentalClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

205 waters has created significant uncertainty about the status of large ornamental waters or

ornamen tal waters that are not primarily aesthetic, such as waters that both capture stormwater and are ornamental. (p. 19)

Agency Response: See summary response for 7.3.4 above.

Northern Arizona Municipal Waters Users Association (Doc. #9730)

7.306 Small ornamental waters created for aesthetic reasons are not included. "Small" is not defined and large ornamental waters are not addressed? (p. 1)

Agency Response: See summary response above.

Water Law (Doc. #13053)

7.307 Small Ornamental Waters created by excavating and/or diking dry land primarily for aesthetic purposes. The Agencies provide no definition of what constitutes “small”, leaving nearly any amount potentially regulated. The Agencies give no rationale for subjecting ornamental waters “not primarily used for aesthetics” to federal jurisdiction

. (p. 9)

Agency Response: See summary response above.

Southern Environmental Law Center et al. (Doc. #13610)

7.308 Same comment as immediately above. [Dry land should be changed to uplands.] (p. 42)

Agency Response: The agencies disagree and instead clarif y in the preamble that “dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like. See summary response

above

.

7.3.5. Water

-

filled Depressions Created Incidental to Construction Activity

Summary Response

The agencies have identified Water

- filled Depressions Created Incidental to Construction Activity as generally not “waters of the United States” in previous preambles or guidance documents. The Agencies’ 1986 and 1988 preambles indicated these waters could be determin ed

on a case

- specific basis to be “waters of the United States.” The 1986 and 1988 Preambles state :

“ Water

- filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, o r gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States. ”

The f inal rule expands and clarifies this language by stating that w ater

- filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water are not considered “waters of the United States”, even where they otherwise meet th e terms of paragraphs (a)( 4 ) through (8). Codifying these longstanding practices supports the agencies' goals of providing greater clarity, certainty, andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

206 predictability for the regulated public and the regulators. In addition, under prior preamble guidanc e the agencies could determine that a particular feature generally considered non

jurisdictional was a “water of the United States.” The rule does not allow for this case

- specific analysis to be used to establish jurisdiction

- these waters are categorica l ly excluded from jurisdiction.

The rule includes several refinements to the exclusion for water

- filled depressions created as a result of certain activities. In addition to construction activity, the agencies have also excluded

water

- filled depressions cr eated in dry land incidental to mining activity. This change is consistent with the agencies’ 1986 and 1988 preambles, which generally excluded pits excavated for obtaining fill, sand or gravel, and there is no need to distinguish between features based on whether they are created by construction or mining activity. Several commenters asked that this exclusion be broadened to include other types of artificial waterbodies . However, this exclusion is not the only one that addresses artificial waters. Paragraph (b) of the regulations excludes a

number of artificial features , and commenters should see those essays and responses for more

detail. I n particular, the agencies have revised and clarified the exclusion for artificial lakes and ponds created in dry land in response to comments. See summary response at 7.3.2 and related individual questions in that section

. The agencies therefore have not made further changes to

this exclusion. Some commenters felt this exclusion created confusion by suggesting other

water

- filled depressions would be jurisdictional. The agencies again note the rule includes several exclusions for artificial waters, so the agencies disagree this exclusion will form the basis of any misinterpretation. Moreover, the examples prov ided, such as water in tire ruts

, are typically the types of transitory pooling of water that would be excluded as puddles. Finally, the agencies are clear in the final rule that all waters and features identified in paragraph (b) of the

rule as excluded will not be “waters of the United States” even if they otherwise fall within one of the categories in paragraphs (a)(4) through (a)(8). It is important to note that this exclusion is limited to features created in dry land. The phrase “dry land” appears in the 1986 and 1988 preambles, and the agencies believe the term is well understood based on the more than 30 years of practice and implementation. But in keeping with the goal of providing greater clarity, the agencies clarify that “dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds

and the like. However, a “water of the United States” is not considered “dry land” if it lacks water at a given time. Similarly, an area remains “dry land” even if it is wet after a rainfall

event. In addition, features meeting this exclusion may function as a “point source” under CWA section 502(14)), such that discharges of pollutants to waters through these features would be subject to other CW A regulations (e.g., CWA section 402).

Specific Comments

Pennsylvania Fish and Boat Commission (Doc. #4826)

7.309 The PFBC concurs with the exclusion of most specific waters and features from the definition of "waters of the United States" including, waste trea tment systems, prior converted cropland, ditches that are excavated wholly in uplands, artificially irrigated areas that would revert to upland, ditches that do not contribute flow, either directionally or through another water, artificial lakes/ponds crea ted by excavating or diking dry land used exclusively for stock watering, irrigation, settling, etc., reflecting pools, ornamentalClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

207 waters used for aesthetic purposes, gullies and rills and non

- wetland swales. The PFBC suggests that the agencies clarify "wa ter

- filled depressions created incidental to construction activity" by re

- defining this feature as "water

- filled depressions created temporarily and incidental to construction activity". Such depressions left in the landscape under typical climatic conditi ons will over time develop into wetland habitat that may qualify for jurisdictional protection under "other waters". (p. 3)

Agency Response: See s ummary response above. The rule does not alter the agencies’ existing practice that these features could be found to be jurisd ictional once the construction activity is completed or abandoned and the water feature

remains.

North Carolina Forest Service, North Carolina Department of Agriculture (Doc. #14122)

7.310 Comment 2

In the portion of the proposed rule which explicitly excludes o r exempts certain land features from being considered as a WOTUS, [Part (b) of the proposed rule] we suggest adding the following text, shown below in underline, added to existing proposed rule language:

• "(S)(v) water

- filled depressions created incidental to construction, agricultural, horticultural, or silvicultural activity;"

Justification for Comment 2:

Incidental water filled depressions can be created by the use of tractors, trucks, and other portable machinery used for agricultural, horticultural, and silvicultural activities on the land, much in the same way as construction machinery. There is no reason to limit this exclusion to only those depressions which are created from construction activity. (p. 2)

Agency Response: See s ummary response above.

North Carolina Depa rtment of Agriculture and Consumer Services (Doc. #14747)

7.311 Another exclusion that has raised concerns for the agriculture community is (b)(S)(v):

"Water

- filled depressions created incidental to construction activity." This wording leads

to the conclusion th at all other water

- filled depressions, including those in farm fields, could be subject to jurisdiction. This concern could be eased by a change in the wording of this exclusion, or addition of a new one. If a new exclusion was added to say, "Any

water

- fil led depression that does not meet the definition of a wetland," this would make it clear that any wet areas in a farm field would in fact need to meet the definition of a regulated wetland in order to be jurisdictional. (p. 3

- 4)

Agency Response: See s ummary response above.

Wisconsin Department of Natural Resource (Doc. #15141)

7.312 ...the agencies should consider adding language to the exceptions for water

- filled depressions created incidental to construction activity, and groundwater, including groundwater drained through subsu rface drainage systems. Specifically, the WI DNR suggests that the agencies consider adding the language, which is underlined, to the exception for water

- filled depressions,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

208 "(v) water

- filled depressions created incidental to construction activity created by excavating or diking dry land that do not constitute a new normal circumstance under the 1987 US Army Corps of Engineers Wetland Delineation Manual. " (p. 3)

Agency Response: Se e s ummary response above. The agencies do not agree this added language is needed and are con cerned it would introduce confusion.

California State Water Resources Control Board (Doc. #15213)

7.313 The following specific comments are provided by the California State Water Resources Control Board and the nine California regional water quality control boards (collectively, the "Water Boards ") staff regarding the proposed "Definition of 'Waters of the United States' Under the Clean Water Act" (Proposed Rule) for 40 CFR 230.3. Specific recommended changes to the proposed regulations are shown in strikeout / underline format. Additional comments are presented as endnotes [ see footnot e ].

... (v) Water

- filled depressions created incidental to construction activity that are not part of an interconnected network of waters of the United States ; 147 (p. 6)

Agency Response: See s ummary response above . The exclusion is limited to depressions created in dry land

.

Ohio Department of Na tural Resources et al. (Doc. #15421)

7.314 328.3(b)(5)(v) Water

- filled depressions created incidental to construction activity

Greater clarification would be needed to exclude these waters

. Presumably, "incidental to construction activities" would mean the depre ssions were created unintentionally during construction. These types of areas often occur within construction zones and remain on the landscape following construction. An example would i nclude tire ruts and large f l at areas that have not been precisely graded to allow for positive drainage. Many of these

unintentional water

- filled depressions often become sparsely or fully vegetated with hydrophytic vegetation and develop hydric soil characteristics over time. Would exempted water

- filled depressions remain non

- jurisdictional even after they have developed wetland criteria? Currently, Section (b) of the proposed definition would not allow for the recapture of these water

- filled depressions under any of the categories l isted

i n Section (a) (1)

- (7).

For example, a large area in an interchange infield may have been poorly graded when it was constructed 40 years ago. The area was relatively flat and did not drain thoroughly. The result was that depressions were created unin tentionally and incidental to construction activities that, over time, have formed areas meeting all three wetland criteria. It is apparent that these areas are adjacent to a tributary. Based on the proposed

147 There are cases where after a number of years of inactivity, water

- filled depressions created incidental to construction activity become habitat for plants and animals and support other designated uses. These water

- filled depressions may be considered to be waters of the United States if they are interconnected with other waters of the

United States.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

209 definition, ODOTs interpretation is that these a reas would not be jurisdictional waters of the U.S. despite meeting all three wetland criteria. Similar scenarios could include areas that have been subjected to past mining or other construction activities. These are not

uncommon features on the Ohio land scape.

Please confirm ODOT's interpretation of the proposed definition, or provide modifications or clarification to the proposed definition to accurately reflect the intent. (p.

6

- 7)

Agency Response: See s ummary response above. The exclusion covers water

- filled depressio ns that exhibit wetland criteria , as well as pits excavated in dry land for obtaining fill, sand, or gravel.

Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)

7.315 Greeley proposes the following:

 Incorporate the full Preamble Exclusion for g ravel pits into 40 CFR §122.2(b)(5)(v) to cover:

Water filled depressions created incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operati on is abandoned and the resulting body of water meets the definition of waters of United States.

 Add a provision to 40 CFR §122.2(b) excluding: "Lined sand and gravel pits used to store water." The Agencies could define "lined sand and gravel pits" to spec ify state or local performance standards that would adequately sever connectivity for purposes of the exclusion. The definition could also require the lined pits to be operated pursuant to a state or local program that ensures the lining maintains its

inte grity.

... (p. 6)

Agency Response: See s ummary response above. The exclusion applies to pits excavated in dry land for obtaining fill, sand, or gravel. The rule does not change the agencies’ existing practice that these features could be found to be jurisdictional

once th e construction or mining activity is completed or abandoned and the water

feature remains.

North Carolina Soil and Water Conservation Commission (Doc. #14790)

7.316 Depressions:

(b)(5)(v): “Water

‐ filled depressions created incidental to construction activity,” l eads to

the conclusion that all other water filled depressions, including those in farm fields, could be subject to jurisdiction. This should be changed to read, “Any water filled depression that does not meet the definition of a wetland.” This change woul d make it clear that any wet areas in a farm field would in fact need to meet the definition of a regulated wetland in order to be jurisdictional. (p. 2)

Agency Response: See s ummary response above.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

210 Minnesota Chamber of Commerce (Doc. #16473)

7.317 C. The Proposed Rule Would Create Other Impediments to the Efficient Operation of Minnesota Mining Facilities.

1. Water

- Filled Depression Exclusion

Section (b)(s)(v) of the Proposed Rule excludes from the definition of "waters of the

United States" "Water

- filled depressions created incident al to construction activity." Such depressions are frequently created at Minnesota mine sites. For example, one of our members describes a situation where it excavates sand from one part of its mine site for use in its mining operations, and the depression created soon fills with water from precipitation. However, because the company often will not need to dig sand again for many months, vegetation may begin to grow in and around the depression in the intervening months, taking on the appearance o f a wetland.

Recommendation:

The Agencies should revise the Proposed Rule to clarify that if a water body qualifies for

the water

- filled depression exclusion, it will not lose its excluded status by the simple passage of time or because vegetation grows on or around the depression. Additionally, the definition of construction activities should include activities that support mining operations, such as the excavation of mine pits, borrow areas, tailings basins, settling basins, and water recirculation ponds. (p. 6

- 7)

Agency Response: See Summary response above. The exclusion applies to excavations in dry land for obtaining fill, sand, or gravel. See summary responses at 7.3.2 and 7.4.2 regarding the exclusions for certain settling basins and wastewater recycling features.

W ashington State Water Resources Association (Doc. # 16543 )

7.318 Despite the proposals stated objective to add clarity to the regulatory process, the proposal in fact creates great confusion and uncertainty. Some of the unanswered questions have been alluded to...O ther issues that must be addressed, through clarification and in the context of an ongoing dialogue amongst stakeholders, include:

...

 How will the agencies treat water

- filled depressions that are incidental to “other than” construction activity;

... (p. 17, 1 8)

Agency Response: See s ummary response above.

U.S. Chamber of Commerce (Doc. #14115)

7.319 “Water

- Filled Depressions”

The Agencies propose to exclude “water

- filled depressions created incidental to construction activity.” The language of the proposed exclusion is ambiguous. Th e Agencies do not clarify what is meant by “incidental to” or “construction activity.” Depressions are commonly created in the course of construction for various reasons,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

211 including borrow pits, retention basins, architectural landscaping, diversion of stor m

water run

- off, creation of water storage features, etc. Are these and similar depressions excluded if they were created in the course of constructing something other than a structure or a facility? Also unclear is whether this exclusion applies for as lo ng as a depression exists and continues to apply irrespective of whether it is “water

- filled” at all times or whether a condition of “construction” ceases to exist. Depressions created incidental to construction activity may continue to exist, by design or happenstance, for indefinite periods

— even beyond the life of the structure or facility with which their creation was associated. For instance earthen dikes around storage tanks often accumulate rain water over periods of time, particularly in areas of hea vy rainfall. (p. 35)

Agency Response: See s ummary response above. The exclusion applies to excavations in dry land for obtaining fill, sand, or gravel. Also see summary
responses at 7.3.2, 7.3.4, 7.4.2 and 7.4.4 regarding exclusions for certain artificial lakes and ponds , small ornamental waters and wastewater recycling and

stormwater control features. The rule does not change the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is completed or ab andoned and the water feature remains.

South Carolina Chamber of Commerce (Doc. #14535)

7.320 D. Exemption for "Water

- Filled Depressions Created Incidental To Construction Activity" (1 22.2(b)(5)(v))

This exemption, carried over from current regulations, is not further defined in the Proposed Rule or explained in the Preamble. On its face, this exemption is not limited in time, but it has sometimes been interpreted as applying only while construction activity is ongoing. That interpretation is inconsistent with t he plain language of the exemption, and it also is inconsistent with the rationale for the exemption.

First of all, an exemption that only applied while construction activity was underway would be of little value. Only once construction is completed will t he full extent of any

such water

- filled depressions created by the construction activity be known. A water

filled depression that is formed either by excavation associated with construction activity or by the creation of an area that is poorly drained or n ot drained at all due to changes in

land contours and drainage resulting from cons truction activity, is certainly not a traditional navigable water, nor does its existence have a significant effect on traditional navigable waters.

Just as importantly, litt le or no regulatory benefit would result from treating such depressions as WOTUS. EPA should make clear, either in the exemption itself or in the Preamble, that this exemption is not limited only to the duration of the construction activity. EPA also shoul d clarify that a depression excavated as a source of soil, sand, gravel, etc. to be used in the construction falls within the notion of "incidental to construction activity." Again, these depressions are fundamentally different from, and do

not warrant app lication of the same regulatory requirements as, other, natural surface

water bodies. (p. 7

- 8)

Agency Response: See Summary response above. The exclusion applies to excavations in dry land for obtaining fill, sand, or gravel. The rule does not changeClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

212 the agencies’ existin g practice that these features could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water

feature remains.

Federal Water Quality Coalition (Doc. #15822.1)

7.321 6. Water

- filled depressions.

Water

- filled depressions created incidental to construction activity are not jurisdictional. Limiting the exemption to depressions created incidental to construction activity has raised significant uncertainty about the status of other depressions on the ground that

co uld collect water, even tire ruts. (p. 19)

Agency Response: See s ummary response above.

Lydig Construction Inc. (Doc. #14147)

7.322 ...with this proposed rule, the agencies are effectively shifting the burden to the regulated community to prove the application of the limited and ambiguous exclusions on a case

by

- case basis. This point is particularly prominent with regard to the exclusions for

‘water

- filled depressions incidental to construction activity’ and ‘water

- filled depressions excavated on dry land for the purposes of obt aining sand and gravel.’ Old maps and aerial photos may be the only sources available to identify historic conditions in order to

resolve third

- party allegations of violations of federal CWA laws; however, these tools often lack the level of resolution req uired to make a proper determination. It will ultimately be up to the regulated community to provide compelling evidence that an uneven surface area on the land (i.e., man

- made wet area) first came about during construction activity, or face complicated an d layered reviews, costly penalties or even citizen suits. (p. 2)

Agency Response: See s ummary response above. It is the government’s burden to demonstrate that a water is jurisdictional

.

Associated General Contractors of America (Doc. #14602)

7.323 VIII. Water

- Filled Depressio ns

Summary : The proposed language that would exclude “water

- filled depressions created incidental to construction activity” from the definition of WOTUS is ambiguous. This is particularly problematic for AGC members because it will ultimately be up to the regulated community to provide compelling evidence that an uneven surface area on the land (i.e., man

- made wet area) first came about during construction activity

— or face complicated and layered reviews, costly penalties, or even citizen suits. Old maps and aerial photos may be the only sources available to identify historic conditions in order to resolve alleged violations of federal CWA laws. However, these tools often lack the level of resolution required to make a proper determination.

The proposed re visions to the definition of WOTUS would introduce many new ways for the federal government to regulate isolated waters that are normally wet only during seasonal rain events. It is likely that new types of waters will be regulated by the federal

governmen t. In this regard, the public will frequently face the difficult task of proving, onClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

213 a case

- by

- case basis, that the water or feature at issue qualifies for one of the limited and ambiguous exclusions. This point is particularly prominent with regard to the exclusions

for “water

- filled depressions incidental to construction activity” and “water

- filled depressions excavated on dry land for the purposes of obtaining sand and gravel.” AGC notes that this exclusion provides yet another example of this rulemaking being overly broad and ambitious in scope, so much so, as to require an exclusion for waters this small

– the implication being that without this exclusion these waters would be jurisdictional

WOTUS.

As proposed, the language of the “water

- filled depressi ons” exclusion is ambiguous. The agencies do not clarify what is meant by “incidental to” or “construction activity.” Depressions are commonly created in the course of construction for various reasons, including borrow pits, retention basins, architectural landscaping, diversion of storm

water run

- off, creation of water storage features, etc. Are these and similar depressions excluded if they were created in the course of constructing something other than a structure or a facility? It is also unclear whethe r the exclusion survives beyond the period of the actual construction activity.

AGC members are also concerned that the burden will fall to the regulated community to provide compelling evidence that an uneven surface area on the land (i.e., man

- made wet

a rea) first came about during a construction activity and should not be regulated. A failure to prove this fact would carry important regulatory implications that could significantly affect the utility and value of land, as well as the jurisdiction of state and federal agencies. Proving that a land depression was created by a construction operation will require historical information.

In many instances, a series of old maps and aerial photographs from different dates may provide the only opportunity to deter mine the origin of a particular wet area or water, in cases where there is some doubt as to whether or not they were man

- made. Old maps may include topographic sheets, soil, geology, and land surveys. Even still, they may not be sufficient to identify smal l water bodies, wetlands, and wet soils, or, alternatively, to

document their absence.

In an outreach meeting with AGC members, the agencies shared the opinion that general contractors would have “easy access” to topography maps and aerial photos to

demons trate the creation of “water

- filled depressions incidental to construction”

— if/when any jurisdictional issues or challenges would arise. AGC disagrees and finds that the agencies are oversimplifying what it will take to demonstrate the presence or absenc e of water

- filled depressions. Historically, topographic maps and aerial photographs have been useful in identifying well

- defined areas with wetland characteristics (i.e., true wetlands). However, with the proposed rule and the strong potential for the inc lusion of more isolated depressions, these tools lack the level of resolution required to make a proper determination. AGC members have shared reports of former construction, industrial, and logging sites where wetland plants have become established within areas as shallow as 3 to 4 inches (e.g., tire tracks, poor grading practices, and natural settlement

of non

- compacted areas) from the surrounding landscape. In many instances the wetland vegetation is sparse and often comingled with grasses, such as reed canary grass. This unique characteristic, in addition to the flat topography that is often associated withClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

214 water

- filled depressions, make it nearly impossible to classify some areas using topographic maps and/or aerial photos. (p. 17

- 18)

Agency Response: See s ummary respon se above. The exclusion applies to excavations in dry land for obtaining fill, sand, or gravel. Also see summary responses at 7.3.2, 7.3.4, 7.4.2 and 7.4.4 regarding exclusions for certain artificial lakes and ponds, small ornamental waters and wastewater recycling and

stormwater control features. It is the government’s burden to demonstrate that a water is jurisdictional

. The rule does not change the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water feature remains.

NAIOP Commercial Real Estate Development Association (Doc. #14621)

7.324 7. §328.3(b)(5)(v). Water

- filled Depressions.

Routinely federal regulators, despite guidance in the preamble of the 1986 Final Rule, attempt to exert jurisdiction over features such as sediment traps, sediment basins, vegetated swales, and stormwater ponds (created for and during construction activities) when projects are delayed due to economic conditions (loss of funding, foreclosures, etc.). While higher level managers usually intercede, the delays and angst could be eliminated by providing more specific and clear language.

Therefore, we recommend that you replace: “Water

- filled depressions created incidental

to c onstruction activity;” with the following subsection:

(v) Depressions that become water filled periodically or permanently with or without hydrophytic vegetation or hydric soils created incident al to construction or quarrying activity whether actively in u se or abandoned. (p. 5)

Agency Response: See s ummary response above. Also see summary responses at 7.3.2 and 7.4.4 regarding exclusions for certain settling basins and stormwater

control features.

O'Neil LLP (Doc. #14651)

7.325 Other Needed Clarifications to the Rule Requiring Revision and Re

- Circulation for Public Comment Before Adoption

Water

- filled Depressions Created Incidental to Construction Activity

With regard to the Agencies' proposed exclusion from regulation for "water

- filled depressions created incidental to construction activity," the Agencies should address the issue of agency alleged "abandonment" of the construction activity and whether there is a period of time after which such a feature would no longer qualify under the Rule as exempt from CWA regulation if the construction activity has, in fact, been abandoned. The Rule should be clear that a claim of "abandonment" by the Agencies should no t be available unless the Agencies can show that all construction and project development activity has been abandoned for at least 10 years and that no efforts were being made during that time by any person to resume development activity on that project si te. Providing a clear time frame, with a l0

- year minimum period, would be important forClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

215 both the regulators and regulated public so that there is clarity for features that while clearly incidental to construction may have taken on wetland characteristics. (p. 5)

Agency Response: See s ummary response above. The rule does not alter the agencies’ existing practice that pits excavated in dry land for obtaining fill, sand, or gravel could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water feature remai ns.

Reclamation and Abandoned Mine Lands Divisions, Public Service Commission, North Dakota (Doc. # 12857)

7.326 Many of the hazardous abandoned coal mines we reclaim hold water in final mine pits and in mine spoils. It's not clear if these areas would be consid ered 'water filled depressions created incidental to construction activity' which would be exempt from the proposed "waters of the United States" definition. We believe the rule needs to clarify that such areas are exempt. Otherwise, reclamation work to el iminate hazardous conditions will unnecessarily be subject to the lengthy Section 404 permitting process. (p. 2)

Agency Response: See s ummary response above.

National Stone, Sand and Gravel Association (Doc. #14412)

7.327 NSSGA is pleased to see that EPA's website on the propose d rule excludes "water filled depressions excavated on dry land for the purposes of obtaining fill, sand or gravel" from jurisdiction. However, the rule does not expressly include this exclusion but simply refers in the preamble to exclusions found in the 1986 preamble. See 79 Fed. Reg. 22218. That preamble states the following "generally" will not be considered waters of the United States and therefore will not be subject to federal jurisdiction as follows:

Water

- filled depressions created in dry land inci dental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel, unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States.

The jurisdictional status of water bodies incidentally created at the site of aggregate mining and production facilities as part of normal mining, processing and reclamation is of particular importance to NSSGA members. Aggregate operations often create open depressions at mining sites that serve as sediment catch basins and areas that direct drainage from the surrounding site so as not to fill the active mining area with water. Indeed, the excavation of dry land areas creates the majority of sand pit lakes. As excavation commences, water fills the pit. This is due, in large part, to the high water table where many companies operate. Not only should the exclusion be in the text of the rule, the exclusion should be clear that sites undergoing a ctive reclamation under state law have not been "abandoned.” (p. 49

- 50)

Agency Response: See s ummary response above. The exclusion applies to excavations in dry land for obtaining fill, sand, or gravel. The rule does not alter the agencies’ existing practice that these f eatures could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water

feature remains.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

216 7.328 A. The Rule must clarify that a mining site is not "abandoned" after active mining

activities cease if the site is still undergoing reclamation activities under State law, and/or where an operator can demonstrate that economic conditions resulted in delays in completing mining activities.

For many companies, reclamation under state law continues well past cessation of active mining operations and the mine site is not considered abandoned under state reclamation

programs. 148 Yet, the interpretation of "abandonment" has never been clarified under this exclusion to include sites undergoing reclamation. Since the institution of the 404 program, controversy has often arisen as to the jurisdictional status of this incidentally created water/wetland where a site is still undergoin g reclamation under state law. 149
NSSGA submits that a site is "not abandoned" if it is still undergoi ng the reclamation process under state law

.. . (p. 50)

Agency Response: See s ummary response above. The rule does not change the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is completed or aban doned and the water

feature remains.

Lyman

- Richey Corporation (Doc. #14420)

7.329 Clarifying the Exemption for Active Sand and Gravel Operations

The Guidance presently explains that the following "generally" will hot be considered

waters of the United States and therefore will not be subject to federal jurisdiction:

Water

- filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel, unless

and until the construction or excavation operation is abandoned and the resulting body of Water meets the definition of waters of the United States.

Lyman

- Richey supports this interpretation, as the majority of sand pit lakes are excavated from dryland areas. As excavation commences, water fills the pit. This is due, in large part, to the high water table in which Lyman

- Richey operates its mining activities. But for Lyman

- Richey's activities, these pits would not contain any water, much less water subject to federal jurisdiction.

Confu sion can arise in cases when an active sand and gravel operation expands and incorporates an existing wetland or when a small tributary is "mined through" to access

148 Under Cal. Law a mining operations cannot commence without an approved reclamation plan and that plan must

include a description of how "mining water will be disposed" Cal. Pub. Resources Code §2770(a) and (c) (8) (A). A number of other western states require reclamation as part of a mining operation. See Alaska Stat. §27.19.020; Ariz. Rev. Stat. §27

- 921; Mont. Code §8 2

- 4

- 336; Or. Rev. Stat. §517.750; Wash. Rev. Code §78.44.111. In all, at least 37 states regulate non

- coal surface mining on a statewide basis, 35 states require some sort of bond or security from the operator, and at least 26 states provide for public com ment at permit review. Available at http://nssga.org/communications/whoweare.cfm.

149 In Northern Cal. River Watch v. City of Healdsburg , 496 F. 3d. 9931002 (9th Cir) (2007), the corps determination that a waste pond had not been abandoned because reclamatio n activities under state law were still underway was overturned by the district court. The Ninth Circuit affirmed holding that the excavation operation exemption applies not to ponds undergoing actual extraction."Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

217 additional upland ground on the other side of the tributary. To be clear, no waste sand is placed into the wetland or tributary in these cases, and therefore, there is no discharge in violation of Clean Water Act § 404.

Nevertheless, we are aware of instances in which the Corps has asserted jurisdiction over an entire mining pit once either circ umstance occurs. The Corps apparently relies on 33

C. F .R. § 328.5 for this jurisdictional assertion, However, this provision only applies to permanent changes in the shoreline configuration of the relevant waters, But, this regulation should not apply as l ong as the pit in question is clearly being mined because the change is by definition transient.

The agency's assertion of jurisdiction over an entire pit adversely affects ongoing operations not otherwise subject to Clean Water Act § 404 by precluding the discharge of

an y process waste sand back into the pit, which is the common industry practice. The only viable solution is to deposit all process waste sand onto upland ground. Depending on the operation in question, it is possible that no available upland ground exists. And, in each case, large upland waste sand deposits can present a nuisance to surrounding communities as the sand is exposed to wind and other elements over time. In addition, many times, all operation is occurring in a floodway, so deposit ing waste S31ld upland might violate other federal regulations, and the waste sand could not stay upland.

Finally, some consideration should be given to the typical life cycle of a sand and gravel pit. Most mining sites are excavated from upland areas loca ted within a floodplain and/or floodway

. The upland ground is dug out, and the pit fills with water from the surrounding groundwater table. The aggregates are removed with a suction dredge, and process waste sand is deposited directly back into the pit alo ng the edges of the water. This usually results in substantial habitat creation for many species including threatened and endangered species. Indeed, in some case, such as interior least terns and piping plovers, sand and gravel pits often represent the be st remaining habitat available in certain areas. See, e.g. , Bomberger Brown and Jorgensen, 2010 Interior Least Tern and Piping Plover Monitoring, Research, Management, and Outreach Report/at the Lower Platte River,

Nebraska . Thus, the Guidance should not c reate any disincentive toward the creation of

these sensitive areas.

For these reasons, the agencies should make clear in the Guidance that no discharges of process waste sand within an active milling pit, when made incident to active sand and gravel opera tions, will be considered subject to Clean Water Act jurisdiction. At a minimum, the agencies should explain and define the concept of abandonment (and the corollary of permanent change in 33 C.F.R. § 328.5). Lyman

- Richey recommends the term require a cess ation of all active mining operations for a period of five or more years without any intent to reinitiate operations.

. . (p. 13

- 14)

Agency Response: See Summary response above. The exclusion applies to excavations in dry land for obtaining fill, sand, or gravel. The rule does not alter the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water

feature remains.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

218 Virginia Coal and Energy Alliance and Virginia Mining I ssues Group (Doc. #14619)

7.330 C. The Agencies Should Clarify That "Old Works" Are Not Jurisdictional

"Old works" are excavations and depressions left from historic mining activities conducted prior to the passage of the CWA and SMCRA. These features are generally

considered non

-

jurisdictional and are reclaimed according to current SMCRA regulatory requirements. Nearly 80% of all surface mining conducted in Virginia involves remining; thus, these features are encountered at the majority of mine sites in th e SVC. Active mining operations in the SVC utilize these "old works"

- pre

- law relic drainage ditches and depressions that have filled with water over time

- for drainage and sediment basins, slurry impoundments and other operational purposes. Mining opera tions also frequently cross over and impact these features.

For the most part, these "old works" have remained outside of CWA jurisdiction under the exemption for "water

- filled depressions created incidental to construction activity." But the Proposal thre atens to erode or eliminate the applicability of this exemption to old works. We urge the Agencies to clarify that old works are not jurisdictional, either categorically or otherwise. (p. 7)

Agency Response: See s ummary response above. The rule does not alter the agencies ’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water

feature remains.

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.331 Exem ption for “Water

- Filled Depressions Created Incidental To Construction Activity” (122.2(b) (5) (v))

This exemption exists in the current regulations and there is not further discussion or explanation in the proposal. While the exemption is not limited in t ime it has sometimes been interpreted as applying only while construction activity is ongoing. That interpretation is inconsistent with the plain language of the exemption, and it also is inconsistent with the rationale for the exemption. First of all, an exemption that only applies while construction activity was underway would be of little value. Only once construction is completed will the full extent of any such water

- filled depressions created by the construction activity be known. A water

- filled depre ssion that is formed either by excavation associated with construction activity or by the creation of an area that is poorly drained or not drained at all due to changes in land contours and drainage resulting from construction activity, is certainly not a traditional navigable water, nor does its existence have a significant effect on traditional navigable waters. Just as importantly, little or no regulatory benefit would result from treating such depressions as WOTUS subject to CWA permitting and water qu ality regulations. Domtar suggest the agencies clarify in any final rule that this exemption is not limited to only the duration of the construction activity. The agencies also need to clarify that a depression excavated as a source of soil, sand, gravel, etc. to be used in the construction falls within the notion of “incidental to construction activity.” Again, these depressions are fundamentally different from, and do not warrant application of the same regulatory requirements as, other,

natural surface w ater bodies. (p. 14)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

219 Agency Response: See s ummary response above. The rule does not alter the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water

feature remai ns. The exclusion applies to excavations in dry land for obtaining fill, sand, or gravel.

Valero Companies (Doc. #15363)

7.332 All of these definitional sections that outline exemptions from “Waters of the United States” contain language similar to the followin g:

Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

Water

- filled depressions created incidental to construction activity;

Waters m eeting these limitations would not be considered “jurisdictional” under the CWA. Regardless of the Agencies final action regarding definitions of “Waters of the United States”, the Agencies should expand, amplify, or otherwise provide clarity regarding cir cumstances waters are:

1. Collected in ponds and used for fire control/suppression (i.e. “fire water ponds”)

2. Water that has collected and stands within storage tank containment dikes

The proposed definition of “Waters of the United States” does not specifical ly mention such waters as being jurisdictional. However, the exemptions from the definition of “Waters of the United States” in all of the citations above are sufficiently unclear as to exempting these two circumstances that, under the proposed definitions , there is significant risk that fire water ponds and water ponding in storage tank containment dikes would, in fact, be construed as jurisdiction. We strongly urge the Agencies to revise the exemption language cited above to specifically cite our concerns as non

- jurisdictional. The language regarding “artificial lakes and ponds” should be broadened beyond those activities currently listed and include “fire

- water ponds”.

Additionally, the “water

- filled depression” language should be broadened in a way that makes clear this exclusion applies for as long as a depression exists and continues to apply irrespective of whether it is “water

- filled” at all times or whether a condition of “construction” ceases to exist. Depressions created incidental to construction activity may continue to exist, by design or happenstance, for indefinite periods

– even beyond the life of the structure or facility with which their creation originally was associated. Earthen dikes around storage tanks often accumulate rain water for pe riods of time, particularly in areas of heavy rainfall. There is no justification for the exclusion to cease operating due to subsequent events. Moreover, a depression may well be water

- filled during wet periods and virtually empty during dry periods. The exclusion should apply so long as such depression occasionally retains water. (p. 2

- 3)

Agency Response: See s ummary response above. The rule does not alter the agencies’ existing practice that these features could be found to be jurisdictionalClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

220 once the construction or min ing activity is completed or abandoned and the water feature remains. See summary response at 7.3.2 with regard to fire control ponds.

North Carolina Farm Bureau Federation (Doc. #15078)

7.333 Why are only "water filled depressions created incidental to constru ction activities" excluded, but not those created by farm or forestry equipment? All water filled depressions created incidental to activities such as construction, farming, forestry and such should be excluded. (p. 16)

Agency Response: See s ummary response above.

Ogletho rpe Power Corporation (Doc. #14618)

7.334 Oglethorpe Power generally agrees with the exclusions provided within the Proposed Rule, but believes the exclusions should be broader and that the Proposed Rule fails to provide requisite specificity in regard to the ap plication of the exclusions. For instance, the Proposed Rule excludes from the CWA's jurisdiction "water

- filled depressions created incidental to construction activity," but fails to define key terms, including "incidental to" and "construction activity." The exclusion also does not indicate which types of water

- filled depressions are excluded (if not all). Oglethorpe Power seeks clarification regarding the following question:

• Would a water

- filled retention or detention pond built during the construction

of a facility and for the purpose of collecting storm water runoff constitute a

"water

- filled depression created incidental to construction activity," such that the pond would be excluded from the meaning of "waters of the United

States"? Does the answer rem ain the same if the facility's construction has been completed? (p. 3)

Agency Response: See Summary response above. The rule does not alter the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water

feature remains. The final rule also excludes stormwater contr ol features created in dry land

.

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.335 C. THE AGENCIES SHOULD CLARIFY THE EXCLUSION FOR WATER

FILLED DEPRESSIONS FROM CONSTRUCTION.

The Agencies should clarify their exclusion for “wate r

- filled depressions created incidental to construction activity.” First, the Agencies should define the terms “depression” and “incidental to construction activ ity.” 150 Specifically, the Agencies should clarify that such “incidental” depressions includes in tentionally

- created features like temporary erosion ponds, and are not limited to inadvertent features like depressions created by construction equipment. Second, the Agencies should clarify that there is no

150 Proposed Rule, 79 Fed. Reg. at 22,263.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

221 time limit following construction of such artifi cially created water

- filled depressions to qualify for this exclusion.

While the Proposed Rule retains the exclusion for “water

- filled depressions created incidental to construction activity,” it eliminates the exclusion for “pits excavated in dry

land for the purpose of obtaining fill, sand or gravel unless and until the construction or

excavation operation is abandoned and the resulting body of water meets the definition of

waters of the United States.” 151 The WWG understands that “pits excavated in dry lan d” typically refer to mining lakes. 152 The Agencies should revise the Proposed Rule to explain their reasons for eliminating this exclusion. (p. 27)

Agency Response: See s ummary response above. Also see summary response at 7.4.4 with regard to the exclusion for certain storm water control features. The exclusion applies to pits excavated in dry land for obtaining fill, sand, or gravel. The rule does not alter the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mini ng activity is completed or

abandoned and the water feature remains.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

7.336 VI. Unanswered Questions

Despite the proposal’s stated objective to add clarity to the regulatory process, the proposal in fact creates great confusion and uncertainty...issues that must be addressed, through clarification and in the context of an ongoing dialogue amongst stakeholders,

include:

...

 How will the agencies treat water

- filled depressions that are incidental to “other than” construction activity;

...

 How will the agency treat construction detention ponds that ultimately drain to navigable waters;... (p. 6

- 7)

Agency Response: See s ummary response above. Also see summary response at 7.4.4 with regard to stormwater control features.

Southern Environmental Law Center et al. (Doc. #13610)

7.337 This exemption should be removed. In major construction projects such as interstate highways, extremely large borrow pits are dug with the express purpose of turning these

151 EPA, Draft Guidance on Identifying Waters Protected by the Clean Water Act 20

- 21 (Apr. 2011), available at http://www.epa.gov/tp/pdf/wous_guidance_4

- 2011.pdf.

152 Under the Proposed Rule, it appears that even if an active mining lake lacks a surface

- water c onnection to traditionally navigable waters, or tributaries to such traditionally navigable waters, it is possible the mining lake would be jurisdictional as “adjacent” waters if it has a “shallow subsurface hydrologic connection to such a jurisdictional w ater.” Proposed Rule, 79 Fed. Reg. at 22,208. Thus, it appears that under the Proposed Rule, discharges into active mining lakes would likely require a CWA permit.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

222 “waterfilled depressions” into lake

- fr ont property. Under this exemption such amenity lakes would not be subject to regulation in the future. This would be a mistake. Other constructed depressions turn into wetlands over time and are often connected with jurisdictional waters. Again, cutting s uch waters off from any future protections would be a mistake. (p. 42)

Agency Response: See s ummary response above. The rule does not alter the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is c ompleted or abandoned and the water

feature remains.

Stormwater Management Commission, Lake County, Illinois (Doc. #15381)

7.338 We recommend clarifying the exclusion related to water

- filled depressions in §328.3(b)(5)(v) to include a timeframe for this exclusio n (e.g., abandoned for the past 5 years). (p. 2)

Agency Response: See s ummary response above. The rule does not alter the agencies’ existing practice that these features could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water

feature remains.

WaterLegacy (Doc. #18017)

7.339 Permanent Mine Pit Lakes

Mine pit lakes, which are allowed to be created in a natural landscape may become extensive permanent waters that are functionally indistinguishable from a contaminated

natur al lake in terms of impacts on birds, wildlife, and hydrological interaction with nearby waters. Such mine pits should be regulated as waters of the U.S. WaterLegacy proposes language clarifying that mine pit lakes are not exempt from consideration as

“wat ers of the United States.” We request a change from EPA’s proposed rule 40 C.F.R.§230.03(t) as follows:

(t) The following are not “waters of the United States,” notwithstanding whether they meet the terms of paragraphs (s)(1) through (7) of this section

—

. . . (5). . .(v) Temporary W w ater

- filled depressions, created incidental to construction activity, not including mine pit lakes ; (p. 3)

Agency Response: See s ummary response above.

O'Neil LLP (Doc. #16559)

7.340 Water

- filled Depressions Created Incidental to Construction Activi ty

With regard to the Agencies' proposed exclusion from regulation for " water

- filled depressions created incidental to construction activity ," the Agencies should address the issue of agency alleged "abandonment" of the construction activity and whether th ere is a period of time after which such a feature would no longer qualify under the Rule as exempt from CWA regulation if the construction activity has, in fact , been abandoned.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

223 The Rule should be clear that a claim of "abandonment" by the Agencies should not be available unless the Agencies can show that all construction and project development activity has been abandoned for at least 10 years and that no efforts were being made during that time by any person to resume development activity on that project site. Providing a clear time frame, with a 10

- year minimum period, would be important for both the regulators and regulated public so that there is clarity for features that while clearly incidental to construction may have taken on wetland characteristic s. (p. 7)

Agency Response: See s ummary response above. The rule does not alter the agencies’ existing practice that pits excavated in dry land for obtaining fill, sand, or gravel could be found to be jurisdictional once the construction or mining activity is completed or abandoned and the water feature remains.

Robert J. Goldstein & Associates (Doc. #16577)

7.341 5) Depressions created incidental to construction : As discussed in #4 above, this exclusion should be restricted to depressions created incidentally in non

- wetlands only. (p. 2)

Agency Response: See s ummary response above. The exclusion applies only to

water

- filled depressions created in dry land.

7.3.6. Groundwater, including Groundwater Drained through Subsurface Drain age Systems

Summary Response

The agencies have consistently interpreted the Clean Water Act to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The final rule

continues to exclude shallow subsurface water and groundwater, including groundwater drained through subsurface drainag e systems. This decision reflects current agencies’ practice and provides greater clarity.

Many of the commenters were unclear from the proposed rule whether all groundwater is excluded including subsurface drainage systems and shallow subsurface connecti ons. A few commenters questioned whether groundwater pumped through surface drainage ditches or into a pond/reservoir would be excluded and whether a tributary that disappears underground remain s a “water of the United States” while underground.

Many co mmenters supported excluding all groundwater since that has been the historical interpretation, and stated that groundwater is currently regulated by state s and tribes and should remain their jurisdiction. Many other commenters argued that the rule should not exclude groundwater because of its intrinsic connection with surface water and stated that groundwater

often has closer hydrological connections to traditionally navigable waters than do jurisdictional tributaries and adjacent waters. They argued that no other rule fully protects groundwater and that groundwater supports ecologically important water including spring

- fed and groundwater

fed streams.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

224 T he final rule continues to identify as excluded “Groundwater, including groundwater drained through sub surface drainage systems” reflecting the agencies ’ interpretation of “waters of the United States.” This exclusion applies to all groundwater, including shallow subsurface flow. Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their waters. As many commenters pointed out the close connection of groundwater with surface water, this exclusion does not apply when groundwater emerges on the surface

, contribut ing surface flow to streams and spring

- fed water s. At this point, when groundwater emerges on the surface, it is surface water, and th e resulting water feature is potentially regulated

under the Clean Water Act. With this understanding, once groundwater is pumped into surface drainage ditches or into a pond/reservoir, the surface feature itself could be subject to jurisdiction

. In the reverse, when a covered tributary has a segment that disappears underground

that segment is not a “water of the United States.” However, the co vered tributary itself remains a “water of the United States” (see discussion in tributary compendium (topic 8) on breaks in OHWM). The extent of groundwater protection in other rules is beyond the scope of this rulemaking.

Some commenters questioned the use of subsurface hydrologic connections to establish jurisdiction when groundwater is excluded from the rule. A few comments requested specific limits on shallow groundwater connection distan ce, rate of groundwater flow, volume of groundwater flow, groundwater depth and or other hydrologic information to be used to establish jurisdiction. A few commenters supported the use of shallow subsurface/ groundwater as an avenue to document significant nexus including the use of subsurface drainage systems as a connection to establish jurisdiction to a wetland.

It is important to note the discussion in the rule preamble that while exclusions are not “waters of the United States,” they can serve as a hydrologic

, nonjurisdictional connection that agencies would consider when making case

- specific significant nexus det erminations. The agencies’ decision is consistent with the law and current practice. For example, the agencies’ 2008 Rapanos guidance states, “Under this definition, the agencies consider wetlands adjacent if one of following three criteria is satisfied. F irst, there is an unbroken surface or shallow sub

- surface connection to jurisdictional waters. This hydrologic connection may be intermittent.” In addition,

t he science strongly supports the important role shallow subsurface connections can play when

asses sing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination. See Technical Support Document Section s II and IX

. There is no basis in the statute or caselaw to ignore the significant effects a water has downstream waters simply because the connection exists through a non

- jurisdictional feature. The agencies have made

determinations since the Rapanos guidance which established jurisdiction using shallow subsurface hydrologic connections for adjacency. The preamble identifies a shallow subsurface hydrologic connection as lateral water flow over a restricting layer in the top soil horizons, or a

shallow water table whi ch fluctuates within the soil profile, sometimes rising to or near the ground surface but moving quickly through the soil impacting surface water directly within hours or days. See also the Technical Support Document , Section IX

. Therefore, the agencies

w ill continue the current practice of consider ing whether subsurface connections contribute to the type and strength of functions provided by a water or similarly situated waters when making

a case

- specific significant nexus determination . See topic 5 ( Sign ificant Nexus )

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

225 Several commenters cited to Hawai’i Wildlife Fund v. County of Maui to argue the agencies should include groundwater as “waters of the United States.” The court there held that groundwater was a “conduit” through which pollutants were be ing discharged into the ocean, requiring an NPDES permit. This finding is consistent with agency interpretation that discharges of pollutants to “waters of the United States” via groundwater with a direct hydrologic

connection to surface waters ar e subject to the CWA. See Concentrated Animal Feeding Operation Proposed Rule, 66 FR 2960, 3015 (Jan. 12, 2001). The exclusion for groundwater in the rule does not affect this longstanding interpretation as the agency has never considered the groundwater itself to be a “water of the United States.” While the court analyzed whether a discharge of pollutant into groundwater itself would require a permit, the court acknowledged the agencies’ interpretation, including citing to the proposed rule. The court furthe r ack nowledged that if the agen c i es promulgated a final rule that reflected their interpretation, it would be entitled

to Chevron deference.

Specific Comments

Region 10 Tribal Caucus (Doc. #14927)

7.342 ...EPA’s proposed categorical exclusion of groundwater will leave ecologically important waters unprotected. The rule appears to be inconsistent with EPA’s longstanding and consistent interpretation that the CWA may cover discharges of pollutants from a poi nt source to surface water that occur via groundwater that has a direct hydrologic connection to the surface water.

The Tribal Caucus believes that the exclusion of groundwater, particularly the exclusion of “groundwater, including groundwater drained t hrough subsurface drainage systems” from the definition of “Other Waters” should be revised to include, rather than exclude such waters. Groundwater is often hydrologically connected to navigable waters to the same extent, if not more, in some cases then waters that the rule has included in the definition. (p. 3)

Agency Response: See summary response above. B ased on longstanding legal interpretation and current practice the agencies disagree d with the request to include groundwater as a water of the United State s and reta ined groundwater as a categorical exclusion from the definition

. However, the agencies agree d that

subsurface connections can serve as a hydrologic , nonjurisdictional connection that agencies will consider when making case

- specific significant nexus determ inations

.

U.S. House of Representatives Committee on Science, Space and Technology (Doc. #16386)

7.343 Nancy Stoner recently claimed that this rule does not regulate groundwater. Does the Clean Water Act give the EPA jurisdiction over groundwater?

a. Please pro vide a detailed legal rationale and any supporting examples or precedent.

b. If it does not, then does EPA use "ground water" as a means of establishing a "connection?" Please provide a detailed legal rationale and any supporting examples or precedent. (p. 7)

Agency Response: See summary response above. T he agencies have consistently interpreted the CWA to exclude groundwater from the geographic scope of theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

226 waters of the United States. The agencies have clarified that subsurface connections

can serve as a non

-

jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus determinations.

State of Idaho (Doc. #9834)

7.344 2. Ground Water

"Waters of the United States" under the CWA do not include ground water. Idaho

apprec iates the Proposed Rule's specific exclusion of "ground water, including ground water drained through subsurface drainage systems." However, the Proposed Rule's use of "shallow subsurface hydrologic connections" to establish jurisdiction of adjacent

surfac e waters is less clear even though the preamble states that "nothing ... would cause the shallow subsurface connections themselves to become jurisdictional."

The preamble language clarification should be included in the Proposed Rule itself to

avoid misint erpretations and confusion about the EPA and Corps' intent and the jurisdictional status of such waters. Idaho requests the ground water exclusion in section 40 CFR 328.3(b)(5)(vi) of the rule be amended to state as follows:

"Ground water, including but no t limited to ground water drained through subsurface drainage systems and shallow subsurface hydrologic connections between adjacent surface waters under this section " (changes in italics). (p. 4

- 5)

Agency Response: See summary response above. The agencies in the final ru le preamble clearly state, “ neither shallow subsurface connections nor any type of groundwater, shallow or deep
, are themselves ‘waters of the United States’.” The agencies disagree that a change to the rule language was necessary.

State of Oklahoma (Doc . #14625)

7.345 a. Jurisdiction over subsurface flows, a.k.a. "groundwater"

Of great significance to Oklahoma, the proposed rule does not go far enough to ensure that Oklahoma's groundwater is off limits. While I appreciate that EPA and the Corps

have added a specific statement in the proposed rule that excludes groundwater, they continue to say that shallow subsurface flows could be used to establish jurisdictional nexus. In Oklahoma, any subsurface water, no matter how shallow, is considered groundwater and t hus belongs to private property owners subject only to reasonable regulation by the state. As a practical matter, it's hard to fathom how CWA regulations can be effectively applied to distinct surface waters connected only through subsurface

waters without ultimately expanding jurisdiction over the property owner's groundwater resource. Any regulation of subsurface flows, or other water under the surface, would be a severe encroachment on the private property rights of Oklahoma landowners. (p. 11)

Agency Response: See summa ry response above. The agencies have consistently interpreted the CWA to exclude groundwater from the geographic scope of the

waters of the United States. The final rule continues to provide an explicit exclusion for groundwater, including groundwater dra ined through subsurface drainage
systems , and the final rule preamble explicitly states that neither shallow subsurface connections nor any type of groundwater, shallow or deep, are ever jurisdictional

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

227 North Carolina Department of Agriculture and Consume r Services (Doc. #14747)

7.346 In the proposed rule, groundwater remains exempt from jurisdiction. However, a shallow groundwater connection is proposed to be a factor in determining whether a significant nexus exists. The proposed rule does not place any limits on distance, rate of groundwater flow, volume of groundwater flow, or any other hydrologic information needed to determine whether or not a water body has a significant connection to a navigable water.

Groundwater should b e removed from the proposed rul e as a tool to determine whether or not a significant nexus is present. If groundwater remains in the rule as a significant nexus test, specific limits must be enacted to enable consistent determinations of jurisdiction. (p. 4)

Agency Response: T he science strongly supports the important role sub surface

connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination. See Technical Support Document sections II and IX

. Because su bsurface connections can vary based on geography, topography, and soil type, among other factors , the agencies

did not identify specific limitations, but rather to allow these hydrologic connections

to be assessed appropriately for the individual water

. In terms of limits, the agencies

note that case

- specific determinations, and thus consideration of subsurface flow, are limited to two narrow classes of waters identified in paragraphs (a)(7) and (a)(8)

of the final rule. See Section IV.H of the preamble.

W isconsin Department of Natural Resource (Doc. #15141)

7.347 ...the agencies should consider adding language to the exception for groundwater to clarify the intent of the exception. If a subsurface drainage system was installed to drain a wetland or other aquatic r esource, but is not effectively draining that wetland, then that wetland or aquatic resource should still be regulated under the Clean Water Act. The department suggests adding the following language, which is underlined,

"(vi) groundwater, including groun dwater drained through subsurface drainage

systems. If a subsurface drainage system is not effectively draining a wetland or aquatic resource, the wetland or aquatic resource remains a waters of the United States and activities to repair or enhance subsurf ace drainage may require approval under Section 404 of the Clean Water Act. (p. 3)

Agency Response: Section IV.H of the preamble clarifies that shallow subsurface connections, including subsurface drainage systems, are a factor in case

- specific significant nexus analyses.

Los Angeles Department of Water and Power (Doc. #15238)

7.348 ...the Agencies' proposed approach seemingly allows for groundwater to be inappropriately regulated as a tributary. The Agencies affirm in the preamble that they "have never interpreted 'waters of the U nited States ' to include groundwater and the proposed rule explicitly excludes groundwater, including groundwater drained through subsurface drainage systems"." LADWP supports the Agencies' exclusion of groundwater from the definition of WOUS, and seeks c larification in the final rule that groundwater will not be regulated. Groundwater should remain as a Water of the State, regardless ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

228 its source. However, it can be interpreted under the newly proposed rule that groundwater is a tributary water.

Consider ing the above, LADWP suggests that the Agencies clarify the language as

follows:

...

 Groundwater should remain as Water of the State and exempt from the definition of the WOUS, regardless of its source;

 Ephemeral streams: due to their nature, dry for some se asons and wet others, should not be deemed WOUS, but only Waters of the State, similar to groundwater;

 Dry Lake beds should be excluded from WOUS, since most are isolated and do not have a significant nexus to a WOUS; and

 Off

- site storage and/or man

- made i mpoundments related to hydroelectric facilities are only created for the operations of the plant, and should not be defined as WOUS. (p. 3

- 4)

Agency Response: See summary response above. T he agencies have consistently interpreted the CWA to exclude groundwater from the ge ographic scope of the

waters of the United States.

Information on the following comments can be found in other sections: e phemeral

stream status see topic 8 ( Tributary ) ; d ry lake beds see topics 4 (Other Waters) and

5 ( Significant Nexus ) ; h ydroelectric facility man

- made impoundments see Section

7.3.2 and topic 2.4 (Impoundments)

.

New Mexico Environment Department (Doc. # 16552)

7.349 Exclusions from Jurisdictional Determinations are Unclear

In reviewing the proposed rule's exemptions, several clarifications related to the exemptions are needed to avoid conflict with other portions of the proposed rule. For example, it is unclear why the exemption for groundwater has the proposed language "including groundwater drained through subsurface drainage systems." 79 Fed. Reg. 22,180, 22,199. The Department asserts that all groundwater drains through subsurface drainage systems, and as such, the exemption suggests that some groundwater(s) might not be excluded. Although the Department presumes that this language was in tended to clarify that water collected through agricultural tile drains is excluded, as written it only adds ambiguity and confusion. The Department requests that the Agencies clarify this exemption. (p. 12)

Agency Response: The agencies believe the rule is clear and have added specific language to the preamble that neither shallow subsurface connection nor any type of groundwater are jurisdictional. See summary response above.

State of Oklahoma, et al. (Doc. # 16560)

7.350 VII. Exempt Groundwater, Including Subsurface Hydrologi c ConnectionsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

229 As noted particularly in the preamble to the draft WOTUS rule, groundwater is outside the reach and scope of the CWA. In fact, it's a great example of an equally important source of freshwater for our citizens and industries that is well pro tected and managed solely within the purview of States. We appreciate the proposed rule's exclusion of groundwater, both in the preamble and now in the regulatory text, including the exemption of "groundwater drained through subsurface drainage systems." S till, given the proposed rule's use of "shallow subsurface hydrologic connections" as a possible means to establish jurisdiction, we believe the regulatory exemption should be extended

to cover such shallow subsurface water. In Oklahoma and a number of oth er states, any water under the surface, no matter how shallow, is groundwater and is a property right of the overlying landowner. While the discussion in the preamble states that subsurface hydrologic connections will not become jurisdictional themselves, we remain concerned about the fact that preamble language often becomes unplugged from the regulatory language upon final codification in the CFR. Accordingly, we propose that the groundwater exclusion in paragraph (t)(5) (vi) of the proposed rule be amend ed as

follows:

"Groundwater, including but not limited to groundwater drained through subsurface drainage systems and shallow subsurface hydrologic connections used to establish jurisdiction between surface waters under this section. "(proposed changes unde rlined) (p. 5)

Agency Response: See summary response above. The agencies have consistently interpreted the CWA to exclude groundwater from the geographic scope of the waters of the United States. The final rule continues to provide an explicit exclusion for groundwater, including groundwater drained through subsurf ace drainage systems, and final rule preamble explicitly states that neither shallow subsurface connections nor any type of groundwater, shallow or deep, are jurisdictional.

State of Idaho (Doc. # 16597)

7.351 2. Ground Water

"Waters of the United States" unde r the CWA do not include ground water. Idaho appreciates the Proposed Rule's specific exclusion of "ground water, including groundwater drained through subsurface drainage systems." However, the Proposed Rule's use of "shallow subsurface hydrologic connect ions" to establish jurisdiction of adjacent surface waters is less clear even though the preamble states that "nothing ... would cause the shallow subsurface connections themselves to become jurisdictional." The preamble language clarification should be in cluded in the Proposed Rule itself to avoid misinterpretations and confusion about the EPA and Corps' intent and the jurisdictional status of such waters. Idaho requests the ground water exclusion in section 40 CFR 328.3(b)(5)(vi) of the rule be amended to state as follows: "Ground water, including but not limited to ground water drained through subsurface drainage systems and shallow subsurface hydrologic connections between adjacent surface water

- s under

this section" (changes in italics). (p. 4

- 5)

Agency Response: See su mmary response above. The agencies in the final rule preamble clearly state, “neither shallow subsurface connections nor any type ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

230 groundwater, shallow or deep
, are themselves ‘waters of the United States’.” The agencies disagree that a change to the r ule language was necessary.

Office of the Governor, State of Montana (Doc. # 16694)

7.352 However, when the rules are codified, the preamble language regarding shallow subsurface hydrologic connections will not be codified with them, leading to possible

misinte rpretations and confusion about your agencies' intent and the jurisdictional status of such waters. Therefore, the State of Montana requests that the groundwater exclusion in section 40 CFR 230.3(t)(5)(vi) of the rule be amended to restate the intent of th e language in the preamble that "nothing...would cause the shallow subsurface connections themselves to become jurisdictional." (p. 5)

Agency Response: The agencies believe the rule is clear and have added specific language to the preamble that neither shallow subsurface c onnection nor any type of groundwater are jurisdictional. The agencies disagree there will be confusion on this point. See summary response above

.

State of Nevada, Department of Conservation, et al. (Doc. # 16932)

7.353 V. Categorical Exclusions

We appreciate EPA’s attempt to clarify the categorical exclusion of certain types of waters. Of fundamental importance are exclusions for ground water and exemptions for agricultural activities. The CWA was not intended to be applied to the management of ground water. W hile we applaud the Proposed Rule’s exclusion of ground water, the issue becomes blurred when shallow subsurface hydrologic connections are used to establish jurisdiction between surface waters. This opens the door to interpretation and argument for extens ion of CWA jurisdiction to groundwater resources.

Ground water should not be part of the CWA, and EPA should follow a more legally defensible path as described in the last section, where a clear surface connection is required rather than a link through gro und water.

The State agrees with Western States Water Council (WSWC) that the groundwater exclusion in paragraph (t)(5)(vi) of the Proposed Rule should be amended to state as

follows:

“Groundwater, including but not limited to groundwater drained through subsurface drainage systems and shallow subsurface hydrologic connections used to establish jurisdiction between surface waters under this section ” (changes in italics). (p. 5)

Agency Response: See summary response above. The agencies agree that groundwater is excluded fr om the CWA and the rule and preamble are very clear on this point; however, the science strongly supports the important role subsurface connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significa nt nexus determination. See Techn ical Support Document sections II and IX.

State of Alaska (Doc. # 19465)

7.354 1. GroundwaterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

231 The regulatory reach of the CWA was not intended to be applied to the management and protection of groundwater. As such, the State appreciates the rule’s exclusion of “groundwater, including groundwater drained through subsurface drainage systems.” 153

Given the rule’s use of “shallow subsurface hydrologic connections” to establish jurisdiction between surface waters, the State also app reciates the preamble’s statement that “nothing...would cause the shallow subsurface hydrologic connections themselves to become jurisdictional.” 154

However, once codified, the preamble language regarding shallow subsurface hydrologic connections will not be p ublished in the Code of Federal Regulations, leading to possible misinterpretations and confusion about your agencies’ intent and the jurisdictional status of such waters. Therefore, the State requests that the groundwater exclusion in section (t)(5)(vi) o f the rule be amended to state as follows:

“Groundwater, including but not limited to groundwater drained through subsurface drainage systems and shallow subsurface hydrologic connections used to establish jurisdiction between surface waters under this sec tion ” (changes in italics).

Further, while EPA states it would not regulate the land on which “shallow subsurface water” flows, the practical effect would be to regulate both those groundwaters and the land on which they rest because it accommodates the fl ow, and it makes remotely connected waters jurisdictional when there may be no significant connection. Simply put, the CWA does not provide the federal agencies legal authority to use shallow

- subsurface waters that are groundwaters regulated by the states as a means to assert CWA jurisdiction over waters not directly connected to downstream navigable waters. (p. 31)

Agency Response: See summary response above. The agencies agree that groundwater is excluded from the CWA and the rule and preamble are clear on this point; ho wever, the science strongly supports the important role subsurface connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination. See Technical Support Document, particularly s ections II and IX.

California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

7.355 6) Caltrans requests that the exclusion of groundwater from jurisdiction be further clarified to identify whether or not groundwater pumped thro ugh surface drainage ditches would be excluded from jurisdiction. (p. 2)

Agency Response: See summary response above. While groundwater is exempted from this rule, once it is pumped into surface drainage ditches or into a pond/reservoir, the surface feature itself could b e subject to jurisdiction.

153 984 F. Supp. 2d 538 (E.D. Va. 2013).

154 Id. at 22210.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

232 City of Pompano Beach, Florida (Doc. #16438)

7.356 The proposed rule, as written, could include groundwater in the surficial aquifer as WOTUS, due to the connection to category 1

- 3 navigable waters. This definition would impact indire ct discharges to shallow aquifers and make underground injection unfeasible. Groundwater should be excluded from the WOTUS definition. (p. 2)

Agency Response: Groundwater is exempted from the final rule, and does not affect the application of other laws including the requi rements for underground injection wells in the Safe Drinking Water Act in accordance with 40 CFR Parts

144

- 147. Additional details can be found in the summary response at 7.4.2.

Maui County, Hawaii (Doc. #19593)

7.357

... 4. While the proposed rule excludes "groun dwater, including groundwater drained through subsurface draining systems" there is ambiguity as to the depth of "subsurface hydrology" and at what depth groundwater is included or excluded. "Shallow" groundwater hydrologically connected to WOTUS appears t o be included in definition of

"other water."

5. Discharges to groundwater of any depth, permitted by an Underground Injection Control permit issued pursuant to the Safe Drinking Water Act should be categorically exempt. (p. 4)

Agency Response: See summary response above. The agencies in the final rule preamble clearly state, “neither shallow subsurface connections nor any type of groundwater, shallow or deep
, are themselves ‘waters of the United States’.” In terms of limits, the agencies note that case

- specific determinat ions, and thus consideration of subsurface flow, are limited to two narrow classes of waters identified in paragraphs (a)(7) and (a)(8) of the final rule. The final rule does not affect the application of other laws including the requirements for undergro und injection wells in the Safe Drinking Water Act in accordance with 40 CFR Parts

144

- 147. Additional details can be found in the summary response at 7.4.2.

Association of Drinking Water Administrators (Doc. #15530)

7.358 Role of Groundwater: ASDWA supports the recognition, in the proposed rule, that groundwater is not and has never been a jurisdictional water under the definition of

“waters of the United States”

– and, as such, should not be subject to regulation under the CWA. However, that recognition should not prevent the continued commitment by EPA

– together with state and local partners

-- to integrate groundwater as part of the planning approaches to municipal wastewater and stormwater management. There should be a common purpose for protecting drinking water sources under both the CWA and Safe Drinking Water Act (SDWA). For instance, if stormwater is redirected to groundwater for either disposal or shallow recharge, the two Acts should not be implemented at cross purposes. In short, the proposed rule cha nges should not be interpreted to allow groundwater to be contaminated. (p. 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

233 Agency Response: The agencies agree although the requirement to protect drinking water sources is beyond the scope of this rule. The final rule does not affect the application of other laws incl uding the requirements for underground injection wells in the Safe Drinking Water Act in accordance with 40 CFR Parts 144

- 147. Additional details can be found in the summary response s at 7.4.2 and 7.4.4

.

Western States Water Council (Doc. #9842)

7.359 D. Groundwater

The regulatory reach of the CWA was not intended to be applied to the management and protection of groundwater. As such, the WSWC appreciates the rule's exclusion of "groundwater, including groundwater drained through subsurface drainage system s." Given the rule's use of "shallow subsurface hydrologic connections" to establish jurisdiction between surface waters, the WSWC also appreciates the preamble's statement that "nothing...would cause the shallow subsurface connections themselves to become jurisdictional.,, 155 However, once codified, the preamble language regarding shallow subsurface hydrologic connections will not be published in the CFR, leading to possible misinterpretations and confusion about your agencies' intent and the jurisdictional status of such waters. Therefore, the WSWC requests that the groundwater exclusion in paragraph (t)(5)(vi) of the rule be amended to state as follows:

"Groundwater, including but not limited to groundwater drained through subsurface drainage systems and sh allow subsurface hydrologic connections used to establish jurisdiction between surface waters under this section " (changes in italics). (p. 6)

Agency Response: See summary response above. The agencies agree that groundwater is excluded from the CWA and the rule and preamble are clear on this point; however, the science strongly supports the important role subsurface connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination. See Tech nical Support Document, particularly s ections II and IX.

7.360 The report [ Connectivity of Stream and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (September 2013 External Review Draft, EPA/600/R

11/098B] should not be used to support a rule that improperly asserts that the scope of the CWA is essentially unlimited. We recognize that there are differing interpretations of Rapanos , but it is undisputed that the Court rejected the EPA's and the Corps ' pre

Rapanos interpretation of CWA authority. A rule that attempts to return CWA jurisdiction to the pre

- Rapanos "status quo," using the report 's findings of global hydrologic connectivity would be contrary to the limits that Congress and the Court have established, and would be an improper use of the report and federal rulemaking authority. Moreover, the CWA does not apply to ground waters, which are protected and allocated by western states, which recognize the hydrogeologic connections. Any reference to

155 Id . at 22210 [Definition of "Waters of the United States" Under the Clean Water Act, 79 Fed. Reg. 22,269 (April 21, 2014) (to be codified at 40 CFR Part 230.3)]Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

234 ground waters, including "s hallow subsurface flows," is inappropriate in any related rulemaking. (p. 30)

Agency Response: See summary response above. The agencies have consistently interpreted the CWA to exclude groundwater from the geographic scope of the waters of the United States. However, t he agencies have clarified that subsurface

connections can serve as a non

- jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus determinations. The science strongly supports the important role subsurfac e connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination. See Technical S upport Document sections II and

IX.

Groundwater Protection Council (Doc. #13055)

7.361 GWPC support s the recognition that groundwater is not and has never been a jurisdictional water under the definition of waters of the United States and the proposed section of the regulations which exclude from the definition of waters of the United States “groundwate r, including groundwater drained through subsurface drainage systems”. The preamble also states that “The agencies have never interpreted ‘‘waters of the United States’’ to include groundwater and the proposed rule explicitly excludes groundwater, includin g groundwater drained through subsurface drainage systems.”

We agree that many states and tribes protect groundwater that is outside the regulatory jurisdiction of the CWA. The preamble states that “Nothing in this proposed rule would limit or impede any e xisting or future state or tribal efforts to further protect their waters.” However; due to the very broad scope of activities covered under this proposed rule, GWPC is concerned that some may interpret the specific exclusion of groundwater

to affect EPA’s support of existing important provisions contained within 40 CFR Sections 106, 305, and 319 that support state and tribal programs in their protection of groundwater. The ability of states and tribes to request funding for groundwater protection programs from EPA under these provisions of the regulations should not be impeded by future grant guidance. GWPC recommends that EPA continue to include support for groundwater within the text discussion of future grant guidance for these sections. (p. 1

- 2)

Agency Response: The age ncies reiterate that nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their water, nor does it change any existing grant guidance. See summary response above.

Federal Water Quality Coalition (Doc. # 15822.1)

7.362 7. Groundwater.

Groundwater, including groundwater drained through subsurface drainage systems, is not jurisdictional. We appreciate the affirmation that the CWA does not regulate groundwater. However, the frequent use of groundwater in the proposed rule to establish a ju risdictional connection has caused significant confusion and concern. For example, the definition of “tributary” includes water that disappears underground and rechargesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

235 surface water downstream. It is unclear whether the “tributary” retains its status as a water of the U.S. while underground. (p. 19

- 20)

Agency Response: See summary response above. The agencies believe the rule is clear and have added specific language to the preamble that neither shallow subsurface connection nor any type of groundwater are jurisdictional . When a covered tributary has a segment that disappears underground that segment is not a “water of the United States.” However, the tributary itself remains a “water of the United States” (see discussion in Tributary compendium on breaks in OHWM).

Minnes ota Chamber of Commerce (Doc. #16473)

7.363 The Minnesota Chamber strongly supports the Agencies' codification of the longstanding groundwater exclusion in section (b)(S)(vi) of the Proposed Rule. To avoid any confusion, the Agencies should make clear

- in the p reamble to the Final Rule or in the

Final Rule it self

- that the existence of a "shallow sub surface hydrologic connection" is relevant only to the question of whether one surface water should be deemed jurisdictional on the basis of being adjacent to surf ace water. The Agencies should emphasize that groundwater, including any "subsurface hydrologic connection," shallow or otherwise, is outside the scope of the CWA and that discharges directly to groundwater do not require an NPDEs permit requirement. Congr ess intentionally limited the reach of the CWA to surface water discharges. However, limiting the reach of the CWA in this way does not mean that groundwater will go unregulated. To the contrary, state regulation is fully effective and sufficient to regula te discharges to groundwater and control, through appropriate conditions in state discharge permits, any attendant impacts on hydrologically connected surface waters. (p. 6)

Agency Response: See summary response above. The agencies believe the rule is

clear and have added specific language to the preamble that neither shallow subsurface connection nor any type of groundwater are jurisdictional. EPA’s position that discharges to groundwater with a direct hydrological connection to a jurisdictional water require an NPDES per mit is not changed by the final rule. ( See summary response at 12.3 with respect to the NPDES program .)

7.364 The Minnesota Chamber recommends that the Agencies make the follow i n g changes to the Proposed Rule:

... 3. The Agencies should make clear

- in the preamb le to the Final Rule or in the Final Rule

itself

- that the existence of a "shallow subsurface hydrologic connection" is relevant only to the question of whether one surface water should be deemed jurisdictional on the basis of being adjacent to another surf ace water. The Agencies should emphasize that groundwater, including any "subsurface hydrologic connection," shallow or otherwise, is outside the scope of the CWA and that discharges directly to groundwater do not require an NPDEs permit requirement . (p. 6)

Agency Response: See above response.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

236 Alameda County Cattlewomen (Doc. #8674)

7.365 The agencies’ proposed rule leaves open the question whether they will assert jurisdiction over groundwater through contradictory statements and ill

- defined terms and phrases.

While under Secti on I the agencies have specifically excluded “Groundwater, including groundwater drained through subsurface drainage systems” they turn around and find that connection through “shallow subsurface” flows can make a water an “adjacent water” and therefore ju risdictional. (Proposed Rule at 22207). It is hard for a reasonable person to see how “groundwater” is different than “shallow subsurface” flow. It appears that “groundwater” includes “shallow subsurface” flow, and the agencies have failed to distinguish t he two from each other. It is also unclear how a landowner could dig up some ground, and seeing water, whether they would know whether they are obstructing “shallow subsurface” flow or are at groundwater. EPA official Robert Perciascepe stated at a Congres sional hearing before the House Science Committee on July 9, 2014 that the “shallow subsurface” flow is not jurisdictional. If true, could a landowner not cut off the “shallow subsurface flow” and prevent their natural pond from being a “water of the

U.S.? ”

The federal government cannot divert or otherwise control water for its own uses regardless of the authority cited without a reserved water right or a state

- adjudicated water right. Never has it been suggested that the scope of the CWA extends to the

reg ulation of groundwater. 156 (p. 25)

Agency Response: See summary response above. The agencies clearly state in the final rule preamble that “neither shallow subsurface connections nor any type of groundwater, shallow or deep
, are themselves ‘waters of the United States’.” Th is is

a definitional rule and does not address water allocation. Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their water. Not enough information is given to answer the question about a “natural pond”.

Colorado Cattlemen's Association (Doc. #15068)

7.366 The agencies' proposed rule leaves open the question whether they will assert jurisdiction over groundwater through contradictory statements and ill

- defined terms and phrases.

While under Section I. t he agencies have specifically excluded "Groundwater, including groundwater drained through subsurface drainage systems" they turn around and find that connection through "shallow subsurface" flows can make a water an "adjacent water" and therefore jurisdic tional. (Proposed Rule at 22207). It is unclear how a landowner could dig up some ground, and seeing water, whether they would know whether they are obstructing "shallow subsurface" flow or are at groundwater. (p. 8)

156 Rapanos , J. Scalia, at 24 (“First, that the adjacent channel contains a “wate[r] of the United States,” (i.e., a relatively perm anent body of water connected to traditional inter

- state navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins.).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

237 Agency Response: See summary response above. The agencies clearly state in the final rule preamble that “neither shallow subsurface connections nor any type of groundwater, shallow or deep
, are themselves ‘waters of the United States’.”

North Carolina Farm Bureau Federation (Doc. #15078)

7.367 All groundwater should be excluded under all circumstances, including using groundwater to establish shallow subsurface hydrologic connections. (p. 16)

Agency Response: See summary response above. The agencies have consistently interpreted the CWA to exclude groundwater from the geograph ic scope of the waters of the United States. However, t he agencies have clarified that subsurface

connections can serve as a non

- jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus determinations. The science strongly supports the important role subsurface connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination. See Technical S upport Document sections II and

IX.

Irrigation Association (Doc. #15217)

7.368 In Nebraska, the highest irrigated state by irrigated acreage (according to the 2013 Farm and Ranch Irrigation Survey), agriculture depends on both surface and groundwater for its irrigation needs. Sitting on top of the largest aquifer in the U.S. (the Ogallala), Nebraska’s farmers and ranchers continue to produce record yields, while keeping the aquifer thriving and healthy. The WOTUS rule does not have clarity on the nexus between surface and groundwater. Many times, g roundwater is pumped on to agricultural land (into a pond/reservoir) and later used for irrigation. This was groundwater, not subject to the scope of the original Clean Water Act nor the proposed WOTUS rule, but once it is pumped for irrigation use, we are concerned that this is now subject for federal clean water jurisdiction. (p. 3)

Agency Response: See summary response above.

National Barley Growers Association (Doc. #15627)

7.369 Groundwater. While EPA says that it intends to exclude groundwater, there is language in the Prop osed Rule that casts doubt on this claim. More specifically, the Proposed Rule states that a body of water may be a “water of the United States” if it has a “shallow subsurface hydrological connection” to other jurisdiction waters. This language suggests

t hat groundwater may serve as a basis for regulation under the Clean Water Act. EPA and the CORPS should review and narrow this part of the WOTUS definition. (p. 6)

Agency Response: See summary response above. The agencies have consistently interpreted the CWA to exclude g roundwater from the geographic scope of the waters of the United States. However, t he agencies have clarified that subsurface

connections can serve as a non

- jurisdictional hydrologic connection that agencies would consider when making case

- specific signifi cant nexus determinations. The science strongly supports the important role subsurface connections can play when assessing the effects of surface waters, and it is appropriate to consider them in aClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

238 significant nexus determination. See Technical S upport D ocument sections II and

IX.

Charlotte

- Mecklenburg Storm Water Services (Doc. #3431)

7.370 4. This comment pertains to Section 328.3 Definitions, (b)(5)(vi), Federal Register page 22263. “Groundwater drained through a subsurface drainage system” is not clearly

de fined. For example, there is no distinction between tile drainage of agricultural fields and a drainage system used by an MS4 for storm drainage. In many cases, our pipe systems do accept groundwater drainage, especially when the system is installed at an elevation lower than the current ditch, channel or existing pipe system. It will be difficult to determine the contributions of groundwater versus surface water to the pipe system. Also, surface waters are always the result of a groundwater connection, so where is the line drawn between underground drainage of groundwater versus surficial drainage of groundwater? CMSWS recommends clarifying the definition of “drainage system” and how it would apply to MS4 storm water drainage systems. (p. 2)

Agency Response: See summary res ponse above. The agencies continue to exclude groundwater in the final rule. The final rule also provides an exclusion from jurisdiction for stormwater control features that are created in dry land ; please see summary response at 7.4.4.

Upper Niobrara White Natural Resources District, Chadron, Nebraska (Doc. #13562)

7.371 ...if EPA does not intend to regulate groundwater, this should be explicitly stated in the rule as not being "waters of the United States"

- in section t, definitions. (p. 2)

Agency Response: See summary response above. The final rule explicitly states that groundwater, including grou n dwater drained through subsurface drainage systems, is excluded

.

Southern Nevada Water Authority (Doc. #14580)

7.372 The Proposed Rule states "groundwater, including groundwater drained through subsurface drainage systems" is excluded from CWA jurisdiction (79 FR 22263). SNWA supports this specific exclusion, and agrees it will provide clarity regarding the scope of WOTUS. SNWA also recommends groundwater recharge bas ins be specifically excluded from jurisdiction. Groundwater recharge basins are temporary facilities that are isolated from other waters and typically periodically dry. They do not contribute flow to traditional WOTUS, similar to dry lake beds (playas)... (p. 5)

Agency Response: Wastewater recycling structures created in dry land are

excluded under the final rule. See summary response at 7.4.2

.

Berkshire Hathaway Energy Company (Doc. #14650)

7.373 B. The Agencies Should Clarify the Exemption for Groundwater to More Clearly Exemp t
All Groundwater from the Definition of Waters of the U.S.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

239 The Agencies must also clarify the exemption for groundwater. The Agencies propose that groundwater, including groundwater drained through subsurface drainage systems, will continue to be exempt f rom the definition of waters of the U.S. 157 However, under the proposed rule, groundwater connectivity may be used to create a significant nexus with traditional navigable waters and thereby establish a jurisdictional connection. 158
Presumably, if such connect ion is established through groundwater connecting two bodies of water, one of which is a traditional navigable water, the groundwater would also become jurisdictional. This has the potential to create confusion and uncertainty with respect to the treatment of groundwater, which has not historically been nor should be regulated under the Clean Water Act. The Agencies should maintain the clear exemption for groundwater in the proposed definition. In addition, the Agencies should not use groundwater or other i solated surface or shallow subsurface hydrologic connections as a means of establishing a significant nexus with traditional navigable waters to establish jurisdiction. If a water is not itself jurisdictional, it should not be used to establish jurisdictio n for any other water. (p. 5)

Agency Response: See summary response above. The agencies have consistently interpreted the CWA to exclude groundwater from the geographic scope of the waters of the United States. However, t he agencies have clarified that subsurface

connecti ons can serve as a non

- jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus determinations. The science strongly supports the important role subsurface connections can play when assessing the effect s of surface waters, and it is appropriate to consider them in a significant nexus determination. See Technical S upport Document sections II and

IX.

Eagle River Water & Sanitation District, Vail, Colorado (Doc. #15116)

7.374 ...the District and the Authority supp ort the exclusion of groundwater. However, we are concerned that the provision in the new rule stating that "groundwater drained through subsurface drainage systems" is not a water of the United States may be construed to remove protections for important s pring

- fed and groundwater

- fed streams if flow from "subsurface drainage systems" is present. It could also remove subterranean dewatering systems from jurisdiction under section 402:

"The following are not ''waters of the United States" notwithstanding whe ther they meet the terms of [those waters of the United States designated by rule]:

... (vi) Groundwater, including groundwater drained through subsurface drainage systems..." (see, e.g., proposed §32.83(b)(5)(vi).

Without clarification, the "no

- recapture clause" may be construed to remove protections

for these important spring

- fed tributaries. (See discussion re: features excluded by rule

157 Id. at 2221 8 . [ Definition of “Waters of the United States” Under the Clean Water Act , 79 Fed. Reg. 76 at 22193 (April 21, 2014). ]

158 Id . at 22196

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

240 under subpart (b) cannot be recaptured and considered jurisdictional under any of the jurisdictional waters of the U.S. categories by rule, p. 22203, Federal Register, Vol. 79, No. 76, April 21, 2014.) (p. 8)

Agency Response: See summary response bove. When groundwater emerges on the surface, it is surface water, and surface feature receiving groundwater input may be subject to jurisdicti on.

Wyoming State Engineer Office (Doc. #15496)

7.375 Groundwater in Wyoming is not presumed to be connected to surface water unless

determined by field hydrogeologic surveys. Many western states have similar statutes. Varying geological formations, fault cond itions and changes in rock structures make connectivity and continuity between stream and groundwater flows unpredictable. Using groundwater as a means to expand the definition of "waters of the United States," as EPA and the Corps have done in the propose d rule, represents an unwarranted and unsubstantiated regulation of a resource with questionable continuity to downstream navigable waters, particularly in Wyoming.

While EPA and the Corps have attempted to exclude some forms of groundwater from being defi ned as "waters of the United States," the agencies' definitions and treatment of "neighboring" and "adjacency" undermines the potential groundwater exemption. This is particularly true where groundwater and shallow groundwater will be used to establish a

" significant nexus" between isolated or other minor bodies of waters and tributaries that they are "waters of the United States." Therefore, Wyoming requests that the following

clarification be added to the proposed rule:

Groundwater, including but not limi ted to groundwater drained through subsurface drainage system and shallow subsurface hydrologic connections, shall not be considered waters of the United States, and may not be used as a means to demonstrate a significant nexus to adjacent waters. (p. 3)

Agency Response: T he final rule eliminates shallow subsurface connectivity as a basis for adjacency. However, t he agencies have clarified that subsurface

connections can serve as a non

- jurisdictional hydrologic connection that agencies would consider when making case

- speci fic significant nexus determinations. The science strongly supports the important role subsurface connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination. See Technica l S upport Document sections II and

IX. Section IV.H of the preamble discusses identifying shallow subsurface hydrologic connections.

San Luis & Delta

- Mendota Water Authority, Los Banos, California (Doc. #15645)

7.376 C: Groundwater should be clearly excluded from jurisdiction under the proposal

The Agencies have consistently stated that the proposed rule will not regulate groundwater. However, concern remains that the proposal could inadvertently envelope some groundwater banking and recharge projects. Groundw ater banking is a particularly critical management tool for members of the Water Authority and California generally.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

241 The Agencies should provide clarity that the rule will not apply to groundwater, shallow subsurface aquifers and groundwater banking and re charge projects. (p. 3)

Agency Response: See summary response above. The agencies believe this point is clear in the rule and preamble. Also see summary response at 7.4.2 regarding exclusion of certain wastewater recycling features.

Northern California Association (Doc. #17444)

7.377 The EPA's Science Advisory Board (SAB) noted in their advice and comments on the proposed rule in a letter to EPA dated September 30, 2014 that the CWA excludes groundwater, including groundwater drained through subsurface drainage systems, from

fe deral regulation. The SAB states that, while the CWA excludes groundwater from regulation, a point of law that is reiterated in the proposed rule as well as in the current regulation, there is no scientific justification to support such exclusion. The SAB goes on to state that "the available science shows that groundwater connections, particularly via shallow flow paths in unconfined aquifers, can be critical in supporting the hydrology and biogeochemical functions of wetlands and other waters."

While the S AB may conclude that the "available science" may prove that groundwater is connected to traditional navigable waters in some circumstances, it is also clear that Congress intended that the CWA not address nor regulate groundwater even if connected to navig able waters that are regulated under the CWA. As we point out in our issues with the new definition of "adjacent"..., subsurface groundwater connections are not subject to CWA jurisdiction and are clearly excluded from regulation under the Act. The proposed rule should be consistent with this statutory limitation of the CWA on federal regulation of groundwater. (p. 5)

Agency Response: See summary response above. The agencies have consistently interpreted the CWA to exclude groundwater from the geographic scope of the

waters of the United States. However, t he agencies have clarified that subsurface

connections can serve as a non

- jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus determinations. The science strongly su pports the important role subsurface connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination. See Technical S upport Document sections II and

IX.

Center for Small Busine ss and the Environment (Doc. #6981)

7.378 The rule is a good start but needs to cover direct impacts on the groundwater. Since groundwater is the source of much of our drinking water, this key issue should not be overlooked. Ground water provides drinking wate r for more than one

- half of the Nation’s population (Solley and others, 1993), and is the sole source of drinking water for many rural communities and some large cities. In 1990, ground water accounted for 39 percent of water withdrawn for public supply f or cities and towns and 96 percent of water withdrawn by self

- supplied systems for domestic use. The results of research published in the online edition of the Proceedings of the National Academy of Sciences (PNAS, 24 June 2013) lend strong support to the conclusion that toxic chemicals are leaking into ground water. Contrary to the popular impression that at least the waters from ourClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

242 springs and wells are pure, we’re uncovering a pattern of pervasive pollution there too. And in these sources, unlike riv ers, the pollution is generally irreversible. The rate of groundwater renewal is very slow in comparison with that of surface water. It’s true that some aquifers recharge fairly quickly, but the average recycling time for groundwater is 1,400 years, as o pposed to only 20 days for river water. Experts and regulators agree that investigating complaints of water

- well contamination is particularly difficult, in part because some regions also have natural methane gas pollution or other problems

unrelated to d rilling. A 2011 Penn State study found that about 40% of water wells tested prior to gas drilling failed at least one federal drinking water standard. According to A National Look at Nitrate Contamination of Ground Water by Bernard T. Nolan, Barbara

C. R uddy, Kerie J. Hitt, and Dennis R. Helsel [Water Conditioning and Purification, January 1998, v. 39, no. 12, pages 76

- 79.], nitrate pollution generally is a public

- health threat for children, ingestion in drinking water by infants can cause low oxygen leve ls in the blood, a potentially fatal condition (Spalding and Exner, 1993). There are some 126,000 groundwater sites in the United States that have not met pollution standards and the cost of meeting those goals could range from $US110 billion to $US127 bi llion, according to a report from the National Research Council. Since 1987 the NRC has released at least six reports describing the challenges associated with groundwater contamination. By not addressing a proactive approach to groundwater, the ruling f alls short in primarily focusing on surface water. (p. 1)

Agency Response: See summary response above. The agencies have consistently interpreted the CWA to exclude groundwater. The requirement to protect drinking water sources is beyond the scope of this rule. The final rule does not affect the application of other laws

.

Ducks Unlimited (Doc. #11014)

7.379 Finally, with respect to the issue of groundwater, it is scientifically appropriate and necessary that groundwater be allowed to be used as an avenue of documenting signifi cant nexus. It is among the most important of the types of connectivity that exists between adjacent, neighboring, and “other waters” and “waters of the U.S.” However, given the abundant existing case law relative to governance of groundwater, it is

approp riate that the final rule explicitly exclude groundwater from jurisdiction. Given the magnitude and importance of that issue to the states and landowners in many parts of the country, any change to existing practices with respect to state

- based regulation of groundwater should come only as a result of Congressional action. (p. 35)

Agency Response: The agencies agree.

Southern Environmental Law Center et al. (Doc. #13610)

7.380 If the agencies do include groundwater as not regulated, the agencies must be very clear in explaining that although the Clean Water Act is typically viewed as not regulating groundwater, shallow subsurface movement of water can be used to establish a connection between a water and a jurisdictional water. (p. 42)

Agency Response: T he agencies have clarified that subsurface connections can

serve as a non

-

jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus determinations. The science stronglyClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

243 supports the important role subsurface connections can play when assessing th e effects of surface waters, and it is appropriate to consider them in a significant

nexus determination. See Technical S upport Document sections II and IX.

National Wildlife Federation (Doc. #15020)

7.381 We...support the agencies’ express exclusion of groundwat er, recognizing that the agencies “have never interpreted “waters of the United States” to include groundwater.” Id. at 22218. We note, however, that it is scientifically appropriate and necessary that groundwater be recognized as among the most important types of connectivity that exists between adjacent, neighboring, and “other waters” and tributaries, TNWs, and IWs. The agencies must recognize at least shallow groundwater as an avenue of documenting significant nexus despite not being jurisdictional wate rs in their own right. For example, a “gully” or “arroyo” connected via ground water to a tributary of a TNW, and which flows in response to storm events, likely qualifies as a waters of the United States. 159 (p. 102

- 103)

Agency Response: t he agencies have clarified that subsurface connections can

serve as a non

-

jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus determinations. The science strongly supports the important role subsur face connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant

nexus determination. See Technical S upport Document sections II and IX. Section VII of the Technical Support Document addresse s tributaries with segments that flow underground.

Center for Biological Diversity, Center for Food Safety, and Turtle Island Restoration Network (Doc. #15233)

7.382 Under your newly proposed exclusion, “[g]roundwater, including groundwater drained through subsu rface drainage systems,” proposed 40 CFR 122.2 (b)(5)(vi) at 79 Fed. Reg. 22268, is to be deemed not a water of the United States “notwithstanding whether [it meets] the terms of paragraphs (a)(1) through (7) of this definition.” Id . at (b). Accordingly, e ven if, on an individual basis, groundwater in a region has “a significant nexus” to a traditionally jurisdictional water body, you would deem it not a WOTUS. The same would be true under your proposed formulation for groundwater adjacent to a

traditionall y jurisdictional water body. This makes no sense and would invite endless

abuse of our nation’s waters. See Howard J, Merrifield M (2010) Mapping Groundwater Dependent Ecosystems in California. (p. 10)

Agency Response: See summary response above

.

Defenders of Wildlife and Patagonia Area Resource Alliance (Doc. #16394)

7.383 Groundwater is excluded under the proposed subsection (t)(5)(vi). However, groundwater often significantly influences the chemical, physical and biological integrity of surface waters of the U.S. For example, “[i]n the arid and semi

- arid lands. . . groundwater is the

159 See, e.g., Quivira Mining, supra.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

244 dominant source of flow to both tributaries and the main stem river segments.” Member Comments, Dr. Kenneth Kolm, at 31. The SAB wrote to EPA that “[t]he available science. . . shows that groundwat er connections, particularly via shallow flow paths in unconfined aquifers, are critical in supporting the hydrology and biogeochemical

functions of wetlands and other waters. Groundwater also can connect waters and

wetlands that have no visible surface co nnections.” SAB letter at 3; see SAB Review at 20 (“[a]n understanding of regional groundwater flow systems is critical to the understanding of four

- dimensional hydrologic connectivity on both the local and regional scales.”); id . at 27 (“the conclusions i n the [EPA Connectivity] Report should emphasize that dynamic groundwater

- surface water connections not only maintain the ecological integrity of ephemeral streams, but also connect them structurally and functionally to downstream waters, whether or not th e upstream channels are perennial”).

These connections mean that protecting groundwater is often essential to protecting surface water. As the U.S. Geological Study concluded, “[m]uch of the ground

- water contamination in the United States is in shallow aqu ifers that are directly connected to surface water. In some settings where this is the case, ground water can be a major and potentially long

- term contributor to contamination of surface water.” U.S. Geological Survey Circular 1139, “Ground Water and Surfa ce Water: A Single Resource,” (1998), at VI, attached as Exh. D. The USGS also noted changes in the groundwater and surface water connection can impact the aquatic species that depend on the habitats created by this interchange. Id. at VII.

The San Pedro R iver in southeastern Arizona illustrates the critical role that groundwater can play in a watershed. The San Pedro and its surrounding riparian habitat supports one of the richest areas of biodiversity in the United States and is an important corridor for millions of migrating songbirds. The San Pedro supports hundreds of species of birds, mammals, reptiles, amphibians, and plants, including three species protected by the Endangered Species Act: the western yellow

- billed cuckoo, Southwestern willow flycatch er, and the Huachuca water umbel, as well as designated critical habitat for the umbel. In 1988, Congress recognized that the river is one of the nation’s and the world’s environmental crown jewels and protected 36 miles of the river and its surrounding

ri parian habitat through the creation of the San Pedro Riparian National Conservation Area (SPRNCA). 16 U.S.C. § 460xx (purpose of SPRNCA is “to protect the riparian area and aquatic, wildlife, archaeological, paleontological, scientific, cultural, education al, and recreational resources of the public lands surrounding the San Pedro”). The base flows for the river segments within the SPRNCA, and the water supply for the surrounding cottonwood forest, are provided by groundwater within the Sierra Vista subwate rshed. See, e.g ., Thomas, B.E., and Pool, D.R., “Trends in Streamflow in the San Pedro River, Southeastern Arizona, and Regional Trends in Precipitation and Streamflow in Southeastern Arizona and Southwestern New Mexico,” U.S. Geological Survey

Professiona l Paper 1712 (2006), attached as Exh. E. Thus, the health of the river within

the SPRNCA

– and the health of the riparian habitats supporting hundreds of species

– depends upon the health of the groundwater within the Sierra Vista subwatershed. Due to

the close groundwater

- surface water connection in this subwatershed, both the groundwater and the river itself should be protected as waters of the U.S.

– not just the San Pedro. It would be nonsensical and contrary to the purpose and intent of the Clean

Water Act to protect the river, but not the groundwater that sustains it.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

245 Similarly, west of the Sierra Vista subwatershed, the Town of Patagonia, Arizona, relies on Sonoita and Harshaw Creeks and their subterranean aquifers as their only source of potable wate r. “The Hermosa Mine Proposal: Potential Impacts to Patagonia’s Water Supply” (October 2014), at 22

- 23, attached as Exh. F. “The shallow depth of the aquifers combined with the nature of the soils and underlying geology make the relationship

between the su rface and ground water watersheds a particularly close and interconnected

one.” Id . at 22 (quoting Coronado National Forest Draft Land and Resource Management Plan at 137). Isotopic analysis have also confirmed these connections. Id. As noted above, both c reeks are the site of past and proposed mining operations. The acid mine drainage and heavy metals from these operations may seep into the aquifer and then contaminate these connected streams, affecting Patagonia’s water supply and potentially affecting ha bitat used by several species protected under the Endangered Species Act, including the western yellow

- billed cuckoo and Gila topminnow. As with the San Pedro River, protecting the surface water of Harshaw and Sonoita Creeks under the Clean

Water Act

– but failing to protect the groundwater that sustains them

– is nonsensical and contrary to the purpose and intent of the Clean Water Act.

A recent study in California mapped all of the Groundwater Dependent Ecosystems (GDE) (seeps, groundwater dependent wetla nds and rivers) and provides an excellent source of information as to how many “waters of the U.S.” in California are dependent upon groundwater. All three types of groundwater

- dependent ecosystems studied were widely, although unevenly, distributed across California. Although different types of GDEs are clustered more densely in certain areas of the state, watersheds with multiple types of GDEs are found in both humid (e.g. coastal) and more arid regions. Springs are most densely concentrated (high percent age of land area ranking 4) at the HUC12 scale in the North Coast and North Lahontan, whereas groundwater dependent wetlands and associated vegetation alliances are concentrated in the North and South Lahontan and Sacramento River hydrologic regions. The p ercentage of land area where stream discharge is most dependent on groundwater is found in the North Coast, Sacramento River and Tulare Lake regions. Howard J, Merrifield M (2010) Mapping Groundwater Dependent Ecosystems in California. PLoS ONE 5(6): e1124 9. doi:10.1371/journal.pone.0011249.

A recent court decision recognized that a discharge into groundwater requires a permit under the Clean Water Act where the groundwater acts as a “conduit” for pollutants from the point of discharge to surface water that is a jurisdictional water. Hawai’i Wildlife Fund v. County of Maui , 2014 WL 2341565 (D. Haw. 2014). While some discharges may be properly regulated under this “conduit” approach, it is more scientifically and legally sound to protect the groundwater itsel f as a water of the U.S. where the aquifer has a significant connection to surface “waters of the U.S.” Defenders urges the agencies to include groundwater in the “other waters” category to be evaluated on a case

- by

- case basis under the “significant nexus” test. Because there is no support in the scientific literature or the law to exclude groundwater from the jurisdictional scope of the Act, the proposed exclusion of groundwater is an unreasonable interpretation of the statute. See

Chevron , 467 U.S. 837, 8 42

- 43. (p. 12

- 14)

Agency Response: See summary response above

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

246 Waterkeeper Alliance et al. (Doc. #16413)

7.384 VII. THE AGENCIES SHOULD CONFIRM THAT THIS RULEMAKING DOES NOT

ALTER EPA'S LONGSTANDING AND CONSISTENT INTERPRETATION

REGARDING DISCHARGES VIA HYDROLOGIC CONNECTION. F URTHER, THE

AGENCIES SHOULD NOT CATGORICALLY EXCLUDE GROUNDWATER FROM

THE DEFINITION OFWATERS OFTHE UNITED STATES

B. EPA and the Corps Should Not Categorically Exclude All Groundwater from the

Definition of Waters of the United States.

The agencies' propos al to include language in the regulation categorically excluding groundwater from the definition of waters of the United States is scientifically and legal unsound. Many SAB panelists questioned this exclusion.

For example:

 Dr. David Allan questions the ex clusion of "Groundwater, including groundwater drained through subsurface drainage systems" because "an important pathway for some nutrients and contaminants is via subsurface drainage systems to ditches that may not have perennial flow, but which may deli ver much of the nonpoint

runoff to downstream waters." Dr. Allan concluded that "this exclusion is a concern, and s hould be recognized as SUCh." 160

 Likewise Dr. Robert Brooks stated that this exclusion "seems illadvised because of the likely connectivity of surface flows into features such as karst sinkholes, with a potential to contaminate groundwater aquifers used for human water supplies, plus the possibility of reconnections to surface water a reas onable distance away." 161

 And following a lengthy analysis, Dr. Kenneth Kolm concluded: "In no cases should groundwater that is shown to be connected to ' waters of the US' be exempt." 162

Courts have also agreed that groundwater can, and in some circumstances should, itself,

be considered waters of the United States. For example, in the Hawai'i Wildlife Fund v. County of Maui case cited above, the court held that "liability arises even if the groundwater under the [discharging facility] is not itself protected by the Clean Water Act, as long as the groundwater is a con duit through which pollutants are reach ing navigable

- in

- fact water." 163 However, the court went on to note:

That is not to say that groundwater can never be regulated under the Healdsburg test [i.e., under the Ninth Circuit's decision in N. Cal. River Watch v. City of Healdsburg, which applied Justice Kennedy's concurrence in Rapanos to find CWA coverage based o n a subsurface connection]. An aquifer with a substantial

160 Member Comments, supra note 72, compilation of comments of members at 14.

161 Id . at 17.

162 Id . at 49.

163 Hawai'i Wildlife Fund v. County of Maui , 2014 U.S. Dist. LEXIS 74256 *35 (D. Haw. May 30, 2014).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

247 nexus with navigable

- in

- fact water may itself be protected under the Clean Water

Act even if it is not necessari ly a conduit for pollutants. 164

The agencies' proposed categorical exclusion of groundwa ter will leave ecologically important waters unprotected. The groundwater exclusions are scientifically and legally indefensible. Given that the proposed rule provides that a significant nexus between two

surface waters can be demonstrated on the basis of a subsurface hydrologic connection, it makes no sense to categorically exclude all groundwater, including the very same groundwater that forms the hydrologic connection between the two surface waters and establishes that significant nexus. Instead, EPA and the Corps should include groundwater as a subcategory of "other waters," and leave its jurisdictional status to be

determined on a case

- by

- case basis. (p. 43, 56

- 58)

Agency Response: See summary response above

.

Western Resource Advocates (Doc. #16460)

7.385 WRA supports the proposed rule insofar as it would exclude from jurisdiction “groundwater, including groundwater drained through subsurface drainage systems.” 165
The preamble to the proposed rule and the appendices have gone to great lengths to describe how some (a)(5) tribu taries, (a)(6) adjacent waters including wetlands, and (a)(7) other waters including wetlands are jurisdictional because they connect to and influence (a)(1) through (4) waters via groundwater. This concept is well

- captured in the language of the proposed rule with new definitions of both “neighboring” that describes “adjacent” waters as including those with a “shallow subsurface hydrologic connection” 79 Fed. Reg. 22263 (c)(2). to (a)(1) through (5) waters, and “tributary” which states,

A water that otherw ise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are ... one or more natural breaks (such as ... a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. 166

WRA understands the exclusion of groundwater will not exclude these adjacent and tributary waters that connect via groundwater to larger waterways, and are defined elsewhere in the rule. Moreover, WRA also understands that excluding groundwater from Clean Water Act jurisdiction will not mean that activities which pollute surface waters via groundwater go unregulated. 167 (p. 25)

Agency Response: The agencies appreciate the comment.

Indiana Karst Conservancy (Doc. #6993)

7.386 I apologize if I a m missing something here, but in the section on "features" NOT waters of the United States, it includes "Groundwater, including groundwater drained through subsurface drainage systems". Does this imply waters flowing through natural caves and

164 Id . at *45.

165 79 Fed. Reg. 22263 (b)(5)(vi).

166 79 Fed. Reg. 22263 (c)(5).

167 See supra section IV, “Tributaries connected through another w ater.”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

248 karst drainag e systems are not considered WOTUS? In the extreme, there are numerous examples of significant surface creeks and rivers (e.g., the Lost River in Indiana) that "sink" and flow underground, only to resurge later and continue to flow as a surface river.

So d uring the time the water flow is subsurface, the water is not considered WOTUS? That does not seem consistent. Perhaps the characterization of "subsurface" could be better defined (e.g., artificial subsurface drainage systems excluded, but natural

subsurfa ce drainage that mimics flowing channels are considered WOTUS. Many underground karst streams function just like surface streams and should not be excluded. (p. 1)

Agency Response: The agencies have consistently interpreted the CWA to exclude groundwater. See summary resp onse above. Section IV.F of the preamble clarifies that segments of tributaries that flow underground do not sever jurisdiction, while

Section IV.H identifies hydrologic connections through karst topography as a

consideration for case

- specific significant nexus evaluations.

Earthjustice (Doc. # 14564 )

7.387 A. Groundwater Should Not Be Categorically Excluded.

Earthjustice strongly objects to EPA’s categorical exclusion of groundwater from Clean Water Act protection. EPA’s proposal will leave important waters exp osed to pollution. The groundwater exclusions are unsupported from a scientific perspective and may lead to regulatory confusion. The better

- supported approach would be to identify groundwater as a subcategory of “other waters” for which jurisdictional sta tus will be determined on a

case

- by

- case basis. In that fashion, EPA will ensure that the full purpose and intent of the Clean Water Act is realized and that it will not leave waters unprotected.

As noted by various individual members of the SAB, groundwat er connections to surface water do not separate along ill

- defined and fairly unscientific lines such as “shallow” or “deep.” Rather, connections occur as a result of topography, geology, geography, and time. In late summer and fall, many western rivers are almost entirely dependent upon groundwater. Sometimes connections through geographic features such as lava tubes or karst formations are very deep, but nonetheless very direct between groundwater and surface waters. See Member Comments Aldous at 3 (must d efinitely include shallow unconfined aquifers as providing connections between wetland types and open waters; pointing out that inclusion of groundwater in connectivity should not simply be a function of distance; and questioning exclusion of shallow subsu rface flows); Brooks at 17 (exclusion of groundwater “seems ill

- advised because of the likely connectivity” through different features with a potential to contaminate drinking water and connections with surface water a reasonable distance away); Gooseff at 21 (strongly questioning exclusion of groundwater and giving examples of significant connectivity between surface and subsurface waters and problems with EPA’s definitions); Kolm at 31

- 32 (“regional ground water flows commonly interact with the surface en vironment at sinks and springs”; giving examples in the Floridian aquifer), at 33 (“In general, the role of regional groundwater systems in neighboring systems is not addressed by this Rule and leaves the waters of the US vulnerable”), at 34 (“Care should be taken not to imply that bedrock is impermeable because ground water flows through bedrock are important flowpaths that connect hydrologic landscapes over long distances and often acrossClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

249 watershed boundaries”), at 39 (“as indicated with the Karst referen ces, deep groundwater should be included as well for connectivity and include not only Karst, but certainly sedimentary systems, fractured rock systems, and volcanic systems as well...[t]he real issue is both temporal and spatial as the SAB has clearly and t horoughly discussed”), at 43 (pointing out that the role of regional groundwater is inappropriately ignored in the proposed rule), and at 46; and Sullivan at 87 (ensuring the mechanism of connectivity is protected

— even if that is groundwater

— is critical). Plainly, EPA’s categorical exclusion of groundwater from the protections of the Clean Water Act (or its general exclusion with

the ill

- defined “shallow subsurface connection” exception) is not supported by the

science and the science advisors.

EPA should t herefore revise the proposed rule to provide that groundwater shall be protected as a water of the U.S. where it is hydrologically connected to surface water in a way that is not de minimis. This approach makes sense given the decision in Hawai‘i

Wildlife Fund v. County of Maui, __ F.Supp.2d __ (D. Ha. 2014) 2014 WL 2451565, where the court found “[t]here is nothing inherent about groundwater conveyances and surface water conveyances that requires distinguishing between these conduits under the

Clean Water Act. Id. at *13. The court found that where treated effluent was injected into groundwater and months later emerged from seeps into the ocean, the groundwater aquifer served as a conduit for discharges of pollution into the ocean and the discharge required a National Pollutant Discharge Elimination Syst e m (“NPDES”) permit. Id. at *18. At the same time, the court understood that the groundwater aquifer would also meet the significant nexus test being used by EPA here, because it has a hydrologic connection

w ith the ocean, and the groundwater “significantly affects the physical, chemical, and biological integrity of the ocean water.” Id. at *21

- 23.

While a discharge of pollutants into groundwater may be regulated under the “conduit” approach, it makes more sen se, consistent with the approach advocated by members of the SAB, that the groundwater itself be protected as a water of the U.S. because of its hydrologic connection with the ocean. See, e.g. Member Comments, Aldous at 4, Brooks at 17, Kolm at 49. The wat er is plainly hydrologically connected to and affects another water of the U.S. and should be protected in its own right both for human consumption and for the obvious ultimate impact to aquatic ecosystems. It is nonsensical to protect water in a stream, t hen not protect it if the water molecules change to a subsurface flow, and then protect it again when those molecules surface in the ocean or a spring

- fed stream. And, as the court noted in Hawai‘i Wildlife Fund, “[n]either logic nor case law supports dist inguishing between ‘shallow’ and ‘deep’ groundwater.” 2014 WL 2451565 at *17.While groundwater might not in every instance be a water of the U.S., excluding groundwater from ever being considered a water of the U.S. would not be a reasonable interpretation of the Act, nor would it be reasoned decision

- making supported by the record. EPA should revise the rule accordingly.

Earthjustice urges EPA to conform the groundwater sections of the proposed rule to the existing law and science to ensure that waters of the U.S. are fully protected as intended under the Clean Water Act. EPA should revise the rule to remove groundwater as a categorical exclusion and either fully include it in the “other waters” analysis of subsection (s) or create a new subpart in subsecti on (s) to ensure that groundwater that isClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

250 connected to surface water, regardless of its “depth,” is protected as a water of the U.S. (p. 11

- 12)

Agency Response: See summary response above.

Columbia Riverkeeper (Doc. #15210)

7.388 Groundwater and surface water are inherently inte rconnected in most watersheds. Groundwater should be protected as a water of the U.S. where it is hydrologically or biologically connected to surface waters in any detectable way. (p. 2)

Agency Response: See summary response above

.

Raritan Riverkeeper (Doc. #15360)

7.389 Subsection (2) Must be Rewritten to Ensure Jurisdictional Waters are Not Needlessly

Excluded

... Finally, the Agencies should clarify what "groundwater" features will be excluded from the definition of Waters of the United States. Under the proposed language, §401(1)(2)(v)(f) exempts "Groundwater, including groundwater drained through subsurface drainage systems" from the definition. However, in the accompanying materials contained in the Federal Register notice, the agencies twice differentiate "deep groundwater" from shallow groundwater that can be shown to be hydrologically part of surface waters (and thus can be deemed jurisdictional). The Agencies should clarify what groundwater, if any, they intend to include or exclude from the definition (p. 14

- 15)

Agency Response: See summary response above

.

Delaware Riverkeeper Network (Doc. #15383)

7.390 Exclusion of Groundwater and Shallow Subsurface Connections: Section 328.3(b)(5)(vi)

There is no scientific justification for the exclusion of groundwater and shallow

subsurface co nnections. Groundwater connections, especially those with shallow flowpaths in unconfined aquifers, are critical to supporting surface water and biochemical processes of wetlands and other waters, and serve to connect wetlands and waters that have no appar ent surface connections. 168 Because of their ability to critically influence wetlands, such connections should not be excluded. (p. 5)

Agency Response: See summary response above

. T he agencies have clarified that

subsurface connections can serve as a non

- jurisdictional hydr ologic connection that agencies would consider when making case

- specific significant nexus

determinations. The science strongly supports the important role subsurface connections can play when assessing the effects of surface waters, and it is appropriate to consider them in a significant nexus determination.

168 Letter from the Science Advisory Board to The Honorable Gina McCarthy, Administrator of the EPA (Sept. 30, 2013).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

251 Center for Environmental Law & Policy (Doc. #15431)

7.391 I. GROUNDWATER IS A THREATENED NATIONAL AND LOCAL RESOURCE.

A. Groundwater is an essential national resource.

The protection of groundwater specific ally implicates the nation’s environmental health, economic growth, and national security. To state the obvious, the enormous quantity of water available for all of these essential purposes is of little value if the water is not of sufficient quality to su pport our needs. Our nation’s water supply must be of secure quantity and quality to remain a valuable asset.

Unfortunately, the nation’s current fragmented approach to groundwater pollution regulation

— creating a dizzying array of state and federal standar ds

— is inadequate to keep this essential resource safe for current and future generations. Over a decade ago, the EPA’s Ground Water Report to Congress noted that piecemeal regulation is ineffective because “fragmentation of ground water programs impedes ef fective management.” 169 Continued regulatory fragmentation

— such as the kind EPA is proposing in this rule

— would only increase the ineffectiveness. As Robert Hirsch, the former Chief Hydrologist for the USGS, wrote, “[e]ffective policies and management practi ces must be built on a foundation that recognizes that surface water and ground water are simply two manifestations of a single integrated resource.” 170

1. Americans across the country are dependent on groundwater in large amounts

Americans pump 83 billion g allons of groundwater each day, representing roughly 25 percent of the nation’s total water use. 171 Specific use varies by region; California and Texas use the most groundwater by volume, while Hawaii depends on groundwater for fully 95 percent of its water needs. 172 Nationally, groundwater is a key source of potable water: roughly 15 million households get their water from domestic wells, and 800,000 new wells are installed annually. 173 Groundwater is also a pillar of our agricultural industry; irrigation uses a ccount for 65 percent of groundwater use nationwide. 174
Ecologically, groundwater provides essential ecosystem services, the most fundamental

of which are water

- table recharge and sustaining perennial flows in countless streams and

rivers. 175

2. The national g roundwater supply faces additional challenges due to climate change

169 Environmental Protection Agency, Ground Water Report to Congress iii (2001), available at http://www.epa.gov/safewater/sourcewater/ pubs/rpt

- congress_gw_2001.pdf.

170 Ground Water and Surface Water, A Single Resource, U.S. Geological Survey Circular 1139 at 1 (1998), available at http://pubs.usgs.gov/circ/circ1139/#pdf.

171 Robert Glennon, Unquenchable: America’s Water Crisis and What to D o About It 111 (2009).

172 Dr. Venkatesh Uddameri, Importance of Groundwater to the US Economy, National Ground Water Association presentation 2, available at http://water.epa.gov/action/importanceofwater/upload/21

- Uddameri.pdf .

173 Glennon at 130.

174 Uddameri at 3.

175 Id . at 5.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

252 Although climate change risks to water are most often discussed in the context of surface water, climate change will also impact groundwater. 176 Climate change will impact groundwater both directly (influencing recharge and chemical composition) and indirectly (as impacts on surface water are felt in the water cycle). 177 The IPCC recently reported that “[c]limate change is projected to reduce renewa ble surface water and groundwater resources in most dry subtropical regions...intensifying competition for

wa ter among sectors.” 178 Indeed, author Catherine Hughes reports that “[c]limate is the major factor driving temporal variabi lity in groundwater recharge .” 179 However, a 2011

report co

- authored by the USDA Agricultural Research Service (ARS) cautioned that

climate

- driven recharge patterns also aff ect the quality of groundwater. 180 For example, saline encroachment driven by rising sea levels may limit the usefu lness of groundwater for agricultural, ecosystem, or drinking needs. Thus, even as arid regions experience reduced recharge, rising seas will increase recharge of coastal aquifers by up to 15 percent, correspondingly increasing the level of salinity and di ssolved solids in coastal groundwater. 181

3. Groundwater remains susceptible to many forms of pollution

Due to groundwater’s status as an essential national resource, studies showing the deteriorating health of our nation’s groundwater are cause for alarm. F or example, the USGS Quality of Waters in Domestic Wells Survey revealed that more than one in five sampled wells contained one or more contaminants at concentrations greater tha n EPA

human health benchmarks. 182 The most common contaminant from man

- made sou r ces was agricultural nitrate, 183 which is associated with both ecological impacts and human health risks (including infant death). In industrial use areas, the most common pollutants

were vola tile organic compounds (VOCs). 184 Other threats vary across the more than 60 principal aquifers across the country; Floridian agricultural aquifers far exceed permissibl e levels of dissolved arsenic, 185 for example, while High Plains wells exhibit concerning levels of dissolved atrazine. 186

176 Timothy R. Green et al., Beneath the Surface of Global Change: Impacts of Climate Change on Groundwater, 405 Journal of Hydrology 532, 533 (2011).

177 Green et al., at 533.

178 IPCC, Climate Change 2014: Synthesis Report 10 (2014), available at http://www.ipcc.ch/pdf/assessmentreport/ ar5/syr/SYR_AR5_SPM.pdf.

179 Catherine E. Hughes et. al, Climate Change and Groundwater 98 (2011) (emphasis added).

180 Green et al., at 544

- 5.

181 Id. at 545; see also Priyantha Ranjan, So Kazama and Masaki Sawamoto, Effects of climate change on coastal fresh groundwater resources, 16 Global Environmental Change 388, 395 (2006), available at http://espace.library.curtin.edu.au/cgi

- bin/espace.pdf?file=/20 11/01/25/file_1/135411 (observing that climate change will impact freshwater globally by increasing coastal aquifer salinity and shifting recharge away from inland arid zones).

182 Leslie A. DeSimone, Pixie A. Hamilton, and Robert J. Gilliom, Quality of Water from Domestic Wells in the

United States , United States Geological Society (USGS) National Water

- Quality Assessment Program, http://water.usgs.gov/nawqa/studies/domestic_wells/.

183 Id

. 184 USGS, Southwest Principal Aquifers Regional Ground

- Water Quality Assessment 3 (2009), available at http://pubs.usgs.gov/fs/2009/3015/pdf/fs2009

- 3015.pdf.

185 USGS, Comparison of Dissolved Arsenic Concentrations in Select Principal Aquifers

,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

253 4. Groundwater is an engine of natio nal economic growth

While the ecological and health risks to our nation’s groundwater independently justify protection, the economic importance of groundwater further recommends its conservation. Benjamin Franklin said, “When the well’s dry , we know the wo rth of

water.” 187 Discussing groundwater purely as a resource, however, we need not wait: the estimated value of groundwater produced annually exceeds $20 billion, sales of groundwater

- related businesses exceed $15 billion, and sales of related manufacturing

i ndustries exceed $350 million. 188 Community water systems alone employ more than 200,000 workers; adding in associated industries like drilling, environmental services and

remediatio n roughly doubles this figure. 189

One popular example of a largely groundwat er

- dependent industry is the bottled water business. With certain brands selling twenty ounce bottles for more than the price of a gallon of gas

— yet spending cents on the dollar to “produce” the water

— this industry has

seen rapid growth in recent decades. 190 In 2011, American consumers drank 9 billion gallons of bottled water.34 While the increasing privatization of water traditionally held in trust for future generations raises its own concerns, on an economically pragmatic level it is clear that carefully m anaging the resource on which these industries rely is a prerequisite for, at a minimum, the continued enjoyment of economic benefits from

resource use.

5. Groundwater is essential to national security

"The groundwater is our strategic reserve. It's our ba ckup, and so where do you go when the backup is gone?" 191

– James Famiglietti

The Department of Defense recently released an “Adaptation Roadmap,” in which the Pentagon positively identified climate change as a threat to na tional security. 192 On a global scale, the United Nations estimates that more than half of the world’s population

w ill live in waterscarce areas. 193 In a February 2012 “Global Water Security” report, the Director of National Intelligence predicted that water over

- use and resul ting scarcity will

be a contribu ting factor in armed conflict. 194 America’s own water infrastructure is also vulnerable to attack; with 75,000 dams and reservoirs in constant use

— serviced by two

http://water.usgs.gov/nawqa/studies/praq/images/ComparisonGraphics/arsenic.jpg.

186 USGS, Comparison of Dissolved Atrazine in Select Principal Aquifers, http://water.usgs.gov/nawqa/studies/praq/images/ComparisonGraphics/atrazine.jpg.

187 Glennon at 16.

188 Uddameri at 6

- 7.

189 Id . at 10.

190 James Salzman, Drinking Water: A History 16 (2013).

191 Suzanne Goldenberg, Why Global Water Shortages Pose Threat of Terror and War, The Guardian, February 8, 2014, available at http://www.theguardian.com/environment/2014/feb/09/global

- water

- shortages

- threat

- terror

- war (quoting hydrologist James Famiglietti of the University of California at Irvine).

192 Department of Defense, 2014 Climate Change: Adaptation Roadmap 1 (2014) available at http://www.acq.osd.mil/ie/download/CCARprint.pdf.

193 Salzman at 71.

194 Defense Intelligence Agency, Global Water Security iii (20 12) available at http://www.dni.gov/files/documents/Newsroom/Press%20Releases/ICA_Global%20Water%20Security.pdf.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

254 million miles of piping

— it is simply imposs ible to defend it al l. 195 Enemies both foreign and domestic have already sought to exploit infrastructure weaknesses, such as the 2002 terrorist attempt to poison the water of the American embassy in Rome or the Weather Underground’s plot in the 1970s to use the military’s own biological warfare mater ial to poison domestic waters. 196

In this context, it is a matter of national security to preserve the nation’s groundwater. Most obviously, damage to our groundwater would directly impact national security because one quarter of our drinking water comes from groundwater. Second, in the context of the extreme vulnerability of our (primarily surface) water infrastructure, it would be dangerously irresponsible neglect the strategic reserve that America’s groundwater represents. Our gover nment stockpiles food, gasoline, and even nuclear missiles to gird this country against the possibility of attack

— yet these resources are ultimately useless without an adequate national reserve of clean water. (p. 3

- 6)

Agency Response: The agencies have consistently interp reted the CWA to exclude groundwater. See summary response above. The requirement to protect drinking water sources is beyond the scope of this rule. The final rule does not affect the application of other laws

.

7.392 II. THE CWA PROVIDES AN ESSENTIAL FEDERAL SAFETY NET FOR

GROUNDWATER RESOURCES

Three acts provide the most significant regulation of the nation’s groundwater outside of the CWA: the Safe Drinking Water Act (SDWA) of 1974, the Comprehensive Environmental Response, Compensation, and Liability Act ( CERCLA) of 1980, and the Resource Conservation and Recovery Act (RCRA) of 1976. Each act has a limited scope; none deals with groundwater comprehensively. Without the crucial gap

- filling role of the CWA, these three statutes leave vulnerable many of the na tion’s important groundwater

resources.

A. CERCLA and RCRA respond to pollution after

- the

- fact.

CERCLA and RCRA are, as the agency knows well, restorative rather than preventative acts. They focus on remedying groundwater contamination after it occurs, as has been long recognized. 197 CERCLA enables the EPA to act only once there is a release or a substantial threat of release of a hazardous pollutant, which must present an imminent and substantial danger to the public health or welfare. 198 RCRA implements clean up requirements for the EPA once contamination has occurred. 199

Taking a reactive approach to the pollution of our groundwater not only permits groundwater to become contaminated, it results in groundwater contamination that may not be possible to restore or restoration may take decades. The difficulty or impossibility

195 Salzman at 144.

196 Id . at 143

- 4.

197 See, e.g., Linda A. Malone, The Necessary Interrelationship Between Land Use and Preservation of Groundwate r Resources, 9 UCLA J. Envtl. L. Pol'y 1, 16, 26

- 27, (1990); Mining Contamination of Groundwater: The Need for Legislation and Reform, 2 U. Denv. Water L. Rev. 60, 73 (1998).

198 CERCLA, 42 U.S.C. § 9604(a)(1)(A)

- (B) (2006).

199 RCRA, 42 U.S.C. § 6973(a) (2011).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

255 of cleaning up groundwater contamination means that many aquifers are permanently lost as useful water sources. The EPA has long admitted to the public that some sources of groundwater can neve r be effectively cleaned once contaminated. 200 Often, the most a cleanup effort achieves is containing the contamination and preventing it from dispersing further. And despite many significant advances in groundwater remediation technologies, restoring the e ntire volume of a contaminated aquifer remains an elusive goal, and few examples of such restoration have been reported. 201

B. SDWA jurisdiction is limited to public water supplies.

The SDWA gives direct, though narrow, coverage to groundwater: the act only applies to “public water systems,” not all groundwater. 202 Public water systems are defined as systems providing water for human consumption to at least fifteen service connections or

twenty

- five individuals. 203 Under the SDWA, groundwater used by a single hou sehold and groundwater utilized for purposes such as agriculture, but not consumption, receives no protection.

C. SDWA jurisdiction is limited to pollution by “injection.”

The SDWA regulations of the disposal of wastes into groundwater are very narrow. The SDWA deals strictly with waste that i s “injected” into groundwater. 204 So, for example, waste from mines that enters groundwater by seeping through the soil is not regulated under the act. SDWA’s regulation of groundwater and drinking water supplies is furt her narrowed by the statute’s lack of protection for residents utilizing private wells.

D. SDWA jurisdiction is limited by exclusions.

The proposed categorical exclusion of groundwater under the CWA must be assessed in light of other deliberate rollbacks f or the protection of groundwater. This proposed rule comes at a moment not of strengthening but of weakening of related programs. Twenty

five years ago there were high expectations that attended our laws to protect drin king

water: 205

The 1974 Safe Drinking W ater Act (U.S. Public Law 93

- 523) authorized the [U.S. EPA] to establish federal standards to protect the public from harmful contaminants of drinking water. The law also provided for the establishment of a joint national

- state system to ensure compliance with the standards and to protect underground water sources from contamination. ... Section 1412(c) of the act and its amendments ... mandated that the National Research Council (NRC) conduct

200 see, e.g., Ground Water Cleanup at Superfund Sites, U.S. Environmental Protection Agency, http://www.epa.gov/superfund/health/conmedia/gwdocs/ brochure.htm (“[t]reatment technologies are limited in their ability to clean up an aquifer, even if th e location of the contaminants is known.”)

201 United States Army Environmental Center, Guidance to Site Managers at Army Installations: Groundwater Evaluation and Development of Remediation Strategies where Aquifer Restoration may be Technically Impracticab le 3

- 7 (2002).

202 SDWA, 42 U.S.C. §300f(4)(a) (2012).

203 Id.

204 SDWA, 42 U.S.C. § 300h(d)(1)

- (2) (2012).

205 Safe Drinking Water Committee, Drinking Water and Health, V. 9: Selected Issues in Risk Assessment ix (1989 National Academy Press).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

256 studies to identify adverse health effects associated with contamina nts in drinking water, to identify relevant research needs, and to make recommendations regarding such research. Amendments to the law in 1971 requested revisions of the NRC studies to report “new information which had become available since the

NRC’s most recent report, and every two years thereafter.”

These expectations would be difficult to meet under the best of circumstances.

Circumstances are not the best. In Legal Environmental Assistance Foundation v. U.S.

EPA

, 206 the court held that fracking fluids w ere subject to the regulatory measures for “underground injection” but this case was overruled by the Energy Policy Act of 2005, 207

that excludes

— (ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fr acturing operations related to oil, gas, or geothermal production activities.

This is an exception, as the agency well knows, to the underground injection regulatory regime for not one contaminant but several of them largely unidentified. This loophole

eff ectively permits natural gas and chemicals, such as methanol, hydrochloric acid, benzene, and quaternary ammonium chloride, to be injected into areas of groundwater that provide water to tw enty

- five or more individuals. 208 Many of the chemicals qualifying as exempt under SDWA section 300h(d)(1)(b) are the same listed by the EPA as carcinogens and provided maximum contaminant levels for primary drinking wa ter regulation under the SDWA. 209

This protective regime was turned over to the mercies of the common law, w ith consequences predictably perceived by courts that have been called to the rescue 210 :

By any responsible account, the exploitation of the Marcellus Shale Formation will produce detrimental effects on the environment, on the people, their children,

and fut ure generations, and potentially on the public purse, perhaps rivaling the

environmental effects of coal extraction. ...

We know that cracks in the legal protective canopy of the SDWA cannot be fixed here. But they cannot be ignored here by the proposals tha t would add another crack in that protective legal canopy.

E. SDWA high

- level protection for “sole source aquifers” applies to a fraction of the nation’s groundwater.

The greatest protection SDWA provides to groundwater is the qualification as “sole

source aquifers.” 211 The designation of sole source aquifer is granted to aquifers that

206 276 F.3d 1253 (11th Cir. 2001)

. 207 Pub. L. No. 109

- 58, § 1(a), 119 Stat. 594 (2005) (“underground injection”)

. 208 What Chemicals are Used, Frac Focus Chemical Disclosure Registry (Nov. 12, 2014, 7:00 PM), https://fracfocus.org/chemical

- use/what

- chemicals

- are

- used.

209 Drink ing Water Contaminants, U.S. Environmental Protection Agency (Nov. 12, 2014, 7:00 PM), http://water.epa.gov/drink/contaminants/#List; SDWA, 42 U.S.C. § 300(f)(1)(c)

- (d) (2012)

210 Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901, 976 (Pa. 2013) (public trust under art. 1, § 27 of the Pa. Constitution)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

257 supply at least 50 percent of drinking water consumed in t he area overlying the aquifer. 212
The designation is not automatically granted, and a party must submit an application

i dentifying a protection area for consideration. Once designated as a sole source aquifer, the SDWA requires all commitment of federal financial assistance to be considered for possible negative effects to the designated aquifer. 213 Only 77 designated sole so urce aquifers are designa ted under the SDWA nationwide. 214 The exclusivity of this program leaves the majority of the nation’s groundwater without such protection.

F. SDWA enforcement lacks resources and capacity.

In addition to the insufficient coverage by the SDWA to prevent discharge of pollutants to groundwater, the act has been poorly enforced. Reports by the U.S. Government Accountability Office over the last few years continue to find that the EPA is ineffectively implementing and enforcing its respons ibilities under the SDWA. In 2011, the GAO found that the EPA had not effectively implemented the 1996 amendments’ requirement to consider, for regulatory determinations, contaminants that present the

g reatest public health concern. 215 A study by GAO in 2014 determined that the SDWA needed to permit the monitoring of more contaminants and at increased frequencies as part of the EPAs Unregulated Contaminant Monitoring Program. 216 The GAO recently found that the EPA fails to properly enforce the underground injec tion contr ol (UIC) program of the SDWA. 217 (p. 10

- 13)

Agency Response: See above response. The regulation of groundwater under other statutes is beyond the scope of this rule.

7.393 III. THE AGENCY DOES NOT ADEQUATELY EXPLAIN ITS RATIONALE FOR A

TOTAL GROUNDWATER EXCLUSION.

As the EPA and its Scientific Advisory Board are aware, firm distinctions between groundwater and surface water are often empirically false. To take only one prominent example: The U.S. Geological Survey reports that the groundwater contribution to all

stream flow in the United States may be as large as 40 percent. 218 Despite this, EPA gives scant justification for its groundwater exclusion in the proposed rule, writing simply that

211 SDWA, 42 U.S.C.A. § 300h

- 3(e).

212 Id.

213 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW § 4.8 (2014).

214 Sole Source Aquifer Protection Program, U.S. Environmental Protection Agency (Nov. 12, 2014, 7:00 PM), http://water.epa.gov/infrastructure/drinkingwater/sourcewater/protection/solesourceaquifer.cfm.

215 See U.S. Government Accountability Office, Improvements in Implementation are Needed to Better Assure the Public of Safe Drinking Water GAO

- 11

- 803T (201 1), available at http://www.gao.gov/products/GAO

- 11

- 803T.

216 See U.S. Government Accountability Office, EPA Has Improved Its Unregulated Contaminant Monitoring Program, but Additional Action Is Needed GAO

- 14

- 103 (2014), available at http://www.gao.gov/products/GAO

14

- 103.

217 See U.S. Government Accountability Office, EPA Program to Protect Underground Sources from Injection of Fluids Associated with Oil and Gas Production Needs Improvement GAO

- 140

- 555 (2014), available at http://www. gao.gov/products/GAO

- 14

- 555.

218 United States Geological Survey, Sustainability of Ground

- water Resources: U.S. Geological Survey Circular 1186 7 (1999).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

258 the “agencies have never interpreted ‘waters of the United States’ to include

grou ndwater.” 219 The size of this rationale is too small to justify so large an exclusion.

In its one

- sentence explanation, the agency does not sufficiently explain its reasoning for creating a CWA permit exemption with the force of law for the entire supply of national groundwater. EPA should explain in substantial detail its understanding of the agency’s obligations to protecting groundwater under the CWA.

A. Prior Practice Is Not a Sufficient Rationale for Continued Practice

Groundwater should not be excluded simply because it has never been included in EPA’s prior definition of waters of the United States. Prior practice is not a sufficient prima facie rationale for continued practice. As Supreme Court stated in Chevron, U.S.A., Inc. v. Natural Resources Defen se Council, Inc. , “An agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.” 220

1. Since EPA generally champions its use of the scientific literature in fashioning its proposed def

inition, EPA should explain fully its reasons for excluding deeper groundwater and shallow subsurface flows.

CELP applauds EPA’s strong use of science in supporting certain portions of this rule. For example, EPA proposes the wholesale inclusion of “adjace nt waters” with a science

based effort. The proposed “adjacent waters” is boxed in by three outer limits. “Adjacent waters” must be within the riparian zone, the floodplain, or have a “shallow subsurface hydrologic connection or confined surface hydrologic connection” to a jurisdictional water. While the limiting factors are not an entirely accurate representation of the scientific understanding, CELP supports EPA’s effort to use scientific literature in making these boundaries. EPA also proposes that “othe r waters” should be examined on a

“case

- specific basis.” In doing so, EPA correctly realizes that certain waters that are not easily encapsulated in rigid definitions and can still significantly affect jurisdictional waters. Again, CELP agrees with EPA’s c hampioning of science to make these

determinations.

Yet, in examining shallow subsurface flows and deeper groundwater, EPA does not give similar scientific analysis. Indeed, by EPA’s own admission, in advancing the “adjacent waters” definition, EPA explici tly states that shallow subsurface flows are not themselves

waters of the United States. 221 There is a clear gap between scientific reasoning and EPA’s proposed exclusion of shallow subsurface waters.

2. Use of detailed reasoning and science is good practice and required by case law.

EPA should not simply give prior practice as it s reason for exclusion of ground waters (whether they be “shallow subsurface” flows or deeper groundwater) because case law expects more than minimal reasoning, consideration of scien ce, and logical consistency.

219 79 Fed. Reg. 22,218 (April 21, 2014).

220 467 U.S. 837, 838 (1984)

221 79 Fed. Reg. 22,208 (April 21, 201 4) (“While they may provide the connection establishing jurisdiction [between adjacent water and the jurisdictional water], these shallow subsurface flows are not ‘waters of the United States.’”).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

259 An agency must give “ detailed and reasoned ” analysis before it excludes groundwater. 222
A rule based on “no scientific judgment” runs the risk of failing to sufficiently meeting its statutory mandate. 223 EPA has simply provided no detailed analysis of why all groundwater is excluded. Its only reason seems to be that it has never interpreted groundwater as included. This is not a detailed explanation, as required under Chevron

. EPA lacks scientific support for groundwater exclusion; indeed, EPA’s discussion shows scientific support for inclusion, not exclusion. For example, EPA argues “wetlands and other waters in landscape settings that have bidirectional hydrologic exchanges with streams or rivers . . . are chemically, physical, and biological connected with rivers via the . . . temporary storage of local groundwater that supports baseflow in rivers.” 224
Elsewhere, EPA states that “[H]eadwater tributaries often depend on groundwater inputs.” 225 EPA, in excluding groundwater, fails to pro vide sufficiently detailed and reasoned scientific judgment. (p. 13

- 15)

Agency Response: See summary response above

.

7.394 IV. A TOTAL GROUNDWATER EXCLUSION IS NOT WARRANTED AND THE EPA SHOULD CATEGORIZE QUALIFIED GROUNDWATER AS A WATER OF

THE UNITED STATES.

A. The groundwater e xclusion should be removed from the proposed rule.

CELP urges EPA to remove the categorical groundwater exclusion from the proposed

rule.

1. A categorical exclusion does not fulfill the EPA’s broad and aspirational CWA mandate to protect the nation’s water s.
“It is the intent of the Clean Water Act to cover, as much as possible, all waters of

the United States instead of just some.” 226

The CWA is an aspirational statute, and the Agency’s proposed rule fails to meet the CWA’s aspirational goals established by Congress in 1972. The declared objective of the

CWA is to “restore and maintain the chemical, physical, and biological integrity of the

Nation's waters” and Congress specifically outlined detailed goals, policies, and deadlines by which to make the CWA’s a spirations a reality. 227

“Hortatory congressional statements” like those in Section 101 of the CWA usually have limited legal force. 228 But statutory goals should be given more weight. Elected officials carefully craft a statute’s goals in response to constitu ents’ desires. Statutory goals,

222 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).

223 Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 756 (D.C. Cir. 2000).

224 79 Fed. Reg. 22,223 (April 21, 2014).

225 Id., 22,228.

226 Quivira Min. Co. v. E.P.A. , 765 F.2d 126, 129 (10th Cir. 1985).

227 See 33 U.S.C. §1251(a) (2014).

228 Robert W. Adler, The Decline and (Possible) Renewal of Aspiration in the Clean Water Act , 88 Wash. L. Rev. 759, 771 (2014). See also, David M. Dreisen, Purposeless Construction , 48 Wake Forest L. Rev. 97, 98 (2014) (arguing that “the Supreme Cour t’s statutory construction has become increasingly ‘purposeless’” and that “the Court should give more weight to statutory goals, properly identified and conceived, than it has in recent years”).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

260 therefore, “tend to reflect public values to a greater extent than other statutory provisions.” 229 When a statute is “ambiguous or silent... construing the statute to conform to its goals serves democratic values by allowing law to refle ct the electorate’s

desires.” 230 The aspirational goals of the CWA reflect the desires of the American public to value, maintain, and restore our nation’s waters, and should be given special

consideration.

The CWA is unique among environmental statu tes. The hortatory statements of other major environmental statutes fail to “articulate affirmative aspirations as clearly, as specifically, and as un ambiguously as does the CWA.” 231 But Congress included “specific operative provisions designed to implement the major aspirations in the [CWA’s] opening statement, making it more difficult to simply ignore those aspirations as the product of lofty legislative pronouncements.” 232 Unlike other environmental statutes, “[i]t is clear that Congress adopted specific pro visions designed to effectuate the goals articulated in section 101, rather than leaving them as ent irely hortatory aspirations.” 233

The EPA should give the aspirational goals of the CWA special consideration when interpreting the CWA and defining the waters of the United States. Given the broad opening language of the CWA and the importance of groundwater to surface water, groundwater should not be wholly excluded from the proposed definition of waters of the

United States.

2. The proposed categorical exclus ion creates absurd results.

By electing to exclude groundwater from the waters of the United States, the agency appears to give a permit to pollute to anyone with the capacity to dig a decent hole. A discharger need only bury its point source below what th e agency considers a “shallow

subsurface hydrologic connection” to escape CWA regulation. Since only “shallow”

subsurface connections between waters are protected under the proposed definition, in

situations where both shallow and deep subsurface connectio ns exist, a party could exploit the deep connections and remain legitimately permit

- free. For instance, a Section 402 NPDES permit could be avoided by discharging the exact same pollutants into the “deep” part of the subsurface connection rather than the “ shallow” part.

Further, by expressly asserting “shallow subsurface flows are not ‘waters of the United States’” the agency creates another openi ng for circumventing the CWA. 234 A plain reading of that explanation is that protection extends only to the waters connected by the

shallow subsurface connection, and not to the shallow subsurface connection itself. Thus, a clever discharger could avoid a 402 permit by carefully pointing the discharge into the

shallow subsurface connection itself and never directly in to one of the waters it connects. This would have the same physical impact as discharging into the connected waters, and

229 David M. Dreisen, Purposeless Construction , 48 Wake Forest L. Rev. 97, 98 (2014).

230 Id.

231 Adler at 771.

232 Adler at 771.

233 Adler at 775.

234 79 Fed. Reg. 22,208 (April 21, 2014).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

261 yet it appears that the Agency would have to allow it absolutely. Once the connection itself is expressly written out of the waters of the United States, discharge to it requires no permit.

Such absurd results are woefully inconsistent with any sound reading of the CWA, its legislative history, and many Federal District court decisions.

B. Qualified groundwater should be protected using subsection (s) of the proposed rule

Instead of a categorical exclusion, CELP urges EPA to include groundwater within the list of protected waters in subsection (s) of the proposed rule. Groundwater shares many

of the same characteristics as the protected w aters listed in subsection (s) and fits more logically in that subsection than in subsection (t).

The intent and letter of the Act could be met

— and the absurd results avoided

— if the EPA were to simply follow one of two routes.

One route would be to include groundwater in the “other waters” category of subsection (s)(7). This would allow a case

- by

- case analysis to determine whether any groundwater

in particular presented a significant nexus to the traditional waters of the United States

described in subsecti ons (s)(1)

- (6).

A second route would be to establish a clear definition in subsection (u) for “tributary groundwater” and then include tributary groundwater under subsection (s)(5). Professor Mary Wood explained this concept in substantial detail in 1988 a nd that analysis remains

sound today. 235 All that remains is for the agency to add tributary groundwater to the acceptable list of tributaries in the definitions in subsection (u) of the rule.

By either route, the agency includes as waters of the United Stat es only groundwater that flows in some measure to traditional waters of the United States. Beyond that most important step, the agency is left to grapple with smaller but still essential differences.

The “other waters” route presumes, by definition, that t he groundwater has a significant nexus to the traditional water (emphasis added). This leaves open a possible reading that polluted groundwater, to qualify as a water of the United States, must flow to the

traditional water within a specific time frame and have some specific effect on the chemical, physical, or biological integrity of the surface water.

In contrast, the “tributary groundwater” route may require the agency to more strictly apply the standard established in subsection (s)(5): a proven groundw ater tributary would

be a per se tributary like any other; hence, the 402 or 404 requirement to secure a permit

would attach to any discharge of pollutants from a point source into the subsurface tributary without requiring a threshold of “signific ance” to the receiving water. 236

235 Wood, Mary Christina, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under

the Clean Water Act , 12 Harv. Envtl. L. Rev. 569, 586

- 619 (1988).

236 The tributary groundwater approach better comports with the understanding that “[t]he Clean Water Act creates a strict liability scheme that “categorically prohibits any discharge of a pollutant from a point source wit hout a permit,” irrespective of whether that discharge affects the receiving water.” Hawai’i Wildlife Fund v. Cnty. of Maui

, __ F. Supp. 2d __, 2014 WL 2451565, at *15 (D. Haw. May 30, 2014).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

262 CELP believes that groundwater is best treated as a water of the United States in the sense of “tributary groundwater,” but recognizes that the agency might reasonably categorize groundwater under “other waters.”

C. EPA could increas e administrative efficiency by developing, under separate rule or guidance, a classification system for subsurface permeability and accompanying general permits.

CELP recognizes the administrative burdens that accompany groundwater point

- source regulation. We therefore suggest that the EPA pursue a separate rule or guidance to

increase the efficiency of groundwater regulation under the CWA. In this separate action, the agency could assist the conservation and regulated communities alike by setting a

default rule that transparently established a presumption either for or against subsurface connectivity in specific areas. The presumption could be rebuttable by evidence presented by the challenging party.

The recent Hawai’i Wildlife Fund case illustrates the is sues well. 237 In that case, a group seeking to show that waste that a county facility was depositing into the ground traveled

into the ocean via groundwater. 238 The plaintiffs conducted a study in which special dye was deposited with the waste, and was spotted in the oce an nearly three months later. 239
This presented prima facie evidence that the chemicals from the waste facility were indeed reaching surface waters, and therefore the discharge should be regulated under the

CWA.

EPA should draw on this example to develop specific guidance on where the presumption of hydrological connection lies. The scientific data available in Hawai’i Wildlife Fund is

not easily obtainable in many other contexts, and involves substantial expense. Moreover,

the heterogeneous featur es of various aquifers and other groundwater systems make evaluating the scientific data in every groundwater case burdensome on citizens and courts alike. Indeed, requiring such expensive data from citizens runs against the spirit of

the CWA’s citizen

- sui t provisions.

Therefore, CELP urges EPA to develop a region

- or basin

- specific classification system that establishes rebuttable presumptions of hydrological connectivity (or non

connectivity). EPA would be able to draw on its technical expertise to determ ine where the presumption of hydrological connectivity should apply based on a region or basin’s groundwater characteristics. Such a classification system could create a degree of certainty for all parties by establishing a shared and transparent baseline assumption of connectivity or non

- connectivity.

The agency might find additional efficiencies by combining the region

- or basin

- wide classification system with a general permit scheme. If a potential permittee sought to discharge into the ground, EPA could consult its basin

- or region

- specific classification and then, as appropriate, issue a general permit matched to a set of standardized limitations fitting to the permeability of the area at the depth in question. As is the case

237 Id.

238 Id . at 1.

239 Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

263 with existing discharges th at use general permit schemes, the agency should realize cost savings over preparing project

- specific permits. (p. 18

- 21)

Agency Response: See summary response above

.

The River Alliance of Wisconsin (Doc. #16344)

7.395 RECOMMENDATION: River Alliance recommends that EPA consider building a process for including groundwater as a WOTUS either by creating an additional category under 40 CFR §230.3(s) or by including a mechanism to include it under “Other Waters”.

While we understand this is not a revision to the existing rule, River Alliance strongly objects to the categorical exclusion of groundwater from waters of the U.S. and from the protections afforded under the Clean Water Act. Recent court decisions in Wisconsin have affirmed that groundwater and surface water are inextricably linked and our courts have affirmed the mandate that the Wisconsin Department of Natural Resources must consider the impacts of groundwater diversions and groundwater contamination on the chemical, physical and biological integrity of waters of the state. It is impossible to adequately protect the chemical, physical and biological integrity of WOTUS if we categorically exclude the connected waters that run below the surface of the ground.

Exclusion of groundwater is not supported by science and the treatme nt of groundwater in this proposed rule revision is inconsistent at best

- some kinds of groundwater connections are a basis for inclusion as WOTUS, other kinds of groundwater connections are not considered an adequate connection and groundwater itself is not considered as a WOTUS or capable of affecting the chemical, physical and biological integrity of WOTUS. This continues to be one of the major unaddressed weaknesses of the WOTUS rule. In Wisconsin the impact of large scale agricultural industry on grou ndwater quantity and quality and the effect that is having on our waters makes this exclusion particularly jarring (see http://wisconsin watch.org/2014/10/judge

- blames

- toxic

- kewaunee

- county

wells

- on

- massive

- regulatory

- failure/ ). (p. 4

- 5)

Agency Response: See summary response above. Nothing in the final rule precludes state efforts to protect groundwater.

Water Watch of Oregon (Doc. #16568)

7.396 WaterWatch supports a broad, science

- based definition of the waters of the U.S. and urges EPA to heed the advice and comments of the EPA Science Advisory Board (SAB) to strengthen the rule to ensure full protection of the nation’s waters. Further, WaterWatch of Orego n requests that the EPA revise the rule to remove most of the categorical exclusions, most especially the exclusion of groundwater, from the definition of waters of the U.S., preserving the ability to more fully protect our nation’s waters, again consisten t with the advice and counsel of the SAB. (p. 1)

Agency Response: See summary response above

.

Community Watersheds Clean Water Coalition, Inc. (Doc. #16935)

7.397 The EPA and the ACOE Should Reinstate as “Waters of the U.S.” those that the SWANCC/Rapanos Decisions Listed as No Longer JurisdictionalClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

264 ... Surprisingly, the agencies specifically exclude groundwater from the waters that are jurisdictional, even on a case

- specific basis. 240 Even the very short excerpt from the DEC’s description of the attributes of ground

- waters demonstrates how vital they are to a livable, healthy environment. The fact that groundwater can, and often does connect a wetland to a “navigable river”, i.e. provide a “nexus”, makes it exclusion even more confusing. Groundwater can be, an d often is, a vital component of a wetland or stream. For example, in times of drought, when stream levels are low, a stream that shares the groundwater of a nearby wetland can receive replenishment form that source. The reverse may be true when stream lev els are high. Clearly, a “significant nexus” exists between the stream and the wetland, even though “significance” is not restricted to a surface connection, as in the Supreme Court decision.

According to Section 305(b) of the Clean Water Act Amendments of 1977, “Section 106(e) of the Clean Water Act requests that each State monitor the quality of its ground water resources and report the status to Congress every two years in its State 305(b) report. To provide guidance in preparing the 305(b) reports, EPA worked with States to develop a comprehensive approach to assess ground water quality that takes into account the complex spatial variations in aquifer systems, the differing levels of sophistication among State programs, and the expense of collecting ambi ent ground water data. This approach incorporates all of the components requested during previous 305(b) reporting periods”. 241 Yet, contrary to this clear intent of Congress, EPA and ACOE expressly propose to exclude from their consideration this vital comp onent of our water resources.

A particularly critical component of groundwater is its hyporheic zone where stream and groundwater interact. “The hyphorheic zone can be regarded as the heart of a river. Without a healthy, intact hyphoreic zone, river ecosys tems could not function satisfactorily. The hyphorheic zone is the pore space at the interface between surface

- and ground

- water, and encompasses the areas both beneath, and laterally of, the bed of a river or lake. Water in this zone necessarily comprise s a mixture of both surface and ground water components. Interactions between surface waters and groundwater are strongly affected by the composition of the pore system. The hyporheic zone harbors the most part of the water bodies’ biomass (animals, micro organisms). Thus, the decomposition of organic material, the so

- called natural purification, occurs primarily within the hyporheic zone”. 242

Finally, in addition to bypassing the “intent of Congress”, the agencies are ignoring an

irrefutable fact of nature

– that of the 1% of fresh water available on earth for drinking needs, only 4% is surface water; the remaining 96% is groundwater. For the most part, the two are inextricably linked together. By ignoring this fundamental fact of nature, the Agencies’ propos ed regulations will only include a small sub

- group of US waters that need protection. (p. 6)

240 Groundwater: Water found in the spaces between soil particles and cracks in rocks underground located in the saturation zone. Cracks in rocks can be due to joints, faults, etc. Groundwater is a natural resource that is used for drinking, recreation, industry, and growing crops. (NYS Department of Environmental Conservation)

241 http://water.epa.gov/type/watersheds/monitoring/upload/2003_07_03_monitoring_305bguide_v1ch5.pdf

242 Institute for Groundwater Ecology: info@groundwaterecology.deClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

265 Agency Response: See summary response above

. T he agencies have clarified that

subsurface connections can serve as a non

- jurisdictional hydrologic connection that agencies would co nsider when making case

- specific significant nexus

determinations.

7.398 The EPA and the ACOE Should Reconsider as “Waters of the U.S.” those that the SWANCC/Rapanos Decisions Listed as No Longer Jurisdictional

The agencies should include the following in their list of jurisdictional waters.

... (e) Groundwater

In round figures, 97% of earth’s water is ocean water

– not suitable for drinking or for agriculture

– and 3% is freshwater. Of this 3%, close to 70% is frozen in glaciers and icecaps.

Of the remaining 1%, 9 6% is groundwater; only 4% is surface water.

In 2010, over 26 % of the total water supply for the nation came from groundwater.

These simple facts alone should make it clear that groundwater must be protected with as much diligence as surface water. Yet, t he Proposed Rules state clearly that “groundwater, including groundwater drained through subsurface drainage systems” will be excluded from the definition of “waters of the United States ( emphasis added)”. 243

The need to monitor and preserve groundwater in the US has never been more compelling. A recent NASA satellite study published on July 24, 2014, shows “shocking groundwater loss in the Southwest... 75 percent of the losses were of groundwater....which can get so low that it never recovers”.

However, even mo re compelling

– and contradictory

- is the EPA’s admission of the “hydrologic and biogeochemical interactions occurring in and among surface and groundwater flows including hyporheic zones and alluvial aquifers”. How can the EPA

admit to the interconnectio n of ground

- and surfacewater, yet, at the same time, rule out any need to include groundwater, as waters of the United States, under CWA regulations.

The requirement for states to monitor and assess the quality of their groundwater has been a federally de signated responsibility recognized under Section 305(b) of the Clean

Water Act of 1977.

There is some confusion over the definition of groundwater. Here we refer to “Legal Groundwater” as discussed in the Oregon Law ReviewVol.91, 244 Of the three categories of groundwater discussed in the article, the most applicable by the courts is the “subflow”

from surface streams

- the water that forms a bed under and around a stream.

Pollutants in groundwater that do not affect surface water are not subject to CWA.xviii

This is in sharp distinction to the proposal to eliminate groundwater completely from consideration under the CWA. (p. 6, 8

- 9)

243 Federal Register/Vol.79, No.76/Monday, April 21, 2014/Proposed Rules

. 244 Beneath the Surface of the Clean Water Act: Oregon Law Review, Vol.91, By Anna Makowski

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

266 Agency Response: See above response

. T he final rule clarifie s that subsurface

connections can serve as a non

- jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus determinations. Nothing in the final rule precludes state efforts to protect groundwater.

WaterLegacy (Doc. #18017)

7.399 Our comments reflect concerns about regulatory language and interpretations that are inconsistent with the purpose of the Clean Water Act and may allow sulfide (hardrock) mines to discharge tailings and other wastes into the nation’s rivers, lakes, and wetlands and to replace water bodies in natural la ndscapes with permanent impoundments of polluted waters.

Mines have avoided regulation of discharge to groundwater connected with surface water, impacting fish, wildlife and drinking water. The proposed “waters of the United States” rules, which would appl y to all sections of the Clean Water Act, must not provide an exemption that further undermines control of polluted discharge through groundwater. In addition, both current and proposed interpretations of the Clean Water Act provide loopholes where adverse impacts from tailings waste and creation of permanent contaminated mine pit lakes evade regulatory controls. These loopholes should be closed to protect waters of the U.S.

Groundwater Connected to Surface Water

Regulating discharge to surface water when m ining facilities pollute hydrologically connected groundwater is a significant regulatory challenge. Rather than containing, treating and discharging water directly to surface water, mining facilities may be designed to allow or even facilitate seepage of contaminants to surficial groundwater so pollutants can be hidden, particularly when monitoring of affected surface waters is distant or poorly sited. It is established that groundwater and surface water are often hydrologically connected. WaterLegacy beli eves that the exemption for groundwater from the definition of “waters of the United States” is overly broad and would encourage evasion of pollution containment, treatment and control.

We would recommend that no exemption be provided in Rule 40 C.F.R. § 230.3(t) for groundwater, and that the question of whether groundwater has a “significant nexus” with

waters of the U.S. be addressed case

- by

- case under subsection (s)(7). At the least, in order to prevent pollution of surface waters through connected grou ndwater, the following change to the groundwater exemption proposed in 40 C.F.R. § 230.3(t) should

be made:

(t) The following are not “waters of the United States,” notwithstanding whether they meet the terms of paragraphs (s)(1) through (7) of this sectio n

—

. . . (5) The following features. . . (vi) Groundwater, including groundwater drained through subsurface drainage systems ; that is not diverted from or hydrologically

connected to surface water . (p. 1

- 2)

Agency Response: See summary response above

. EPA’s position that discharges to groundwater with a direct hydrological connection to a jurisdictional waterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

267 require an NPDES permit is not changed by the final rule. (See summary response at 12.3 with respect to the NPDES program.)

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

7.400 Paragraph (b)(5)(vi) exempts groundwater and the CWA jurisdiction clearly does not cover groundwater. However, “shallow subsurface hydrologic connection” is used in the proposed rule as a jurisdiction nexus. We believe th is contradicts the exemption, and we request that the proposed rule refrain from reliance on “shallow subsurface hydrologic connection." (p. 3)

Agency Response: The science strongly supports the important role subsurface connections can play when assessing the effects of s urface waters, and it is appropriate to consider them in a significant nexus determination. See Sections II and IX of the Technical Support Document.

Environmental Technology Consultants (Doc. #2597)

7.401 What features does this apply to? What types of lands a re involved, and how does the drainage affect the definition of a wetland? If this drainage system reduces the water table to the point where the criteria for wetland hydrology is no longer met, what does it do to a wetland determination? (p. 1)

Agency Response: See summar y response above. Questions regarding wetlands delineations are outside the scope of this rule.

Wetland Science Applications, Inc. (Doc. #4958)

7.402 I agree with placing the exceptions at 33 CFR 328(b) into the rule with the following exceptions:

... 4. Regar ding (5)(vi). Ground water is not regulated under the CWA. It is regulated under the Safe Drinking Water Act and, therefore, it is correct that it should be excluded from waters of the U.S. While there might be some justification for extending channelized flows through a very shallow hyporheic zone within the bed of a stream during some portions of the year, the Connectivity Study considers "shallow" to be from centimeters to tens of meters (p. 2

- 1, ln 25+). There are many landscapes that not even the EPA o r the COE under the Regional Supplements would call wetlands that have water tables within tens of meters for extended if not perennial timeframes. The Rule must be more explicit on groundwater. Is the exclusion total?

... (p. 2)

Agency Response: See summary response above

. The agencies in the final rule preamble clearly state, “neither shallow subsurface connections nor any type of groundwater, shallow or deep
, are themselves ‘waters of the United States’.”

Robert J. Goldstein & Associates (Doc. #16577)

7.403 4) Groundwater drained through sub

- surface drainage systems : NO !!! This exclusion as currently worded could be applied to millions of acres of wetlands that doClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

268 not have surface flow or ponding, including wet savannas, flatwoods, Carolina bays, pocosins, bogs, and other environmentally important sub

- surface waters. This exclusion

should be re

- written more narrowly. (p. 2)

Agency Response: The agencies have consistently interpreted the CWA to exclude groundwater. See summary response above. T he agencies have clarified that

subsurface con nections can serve as a non

- jurisdictional hydrologic connection that agencies would consider when making case

- specific significant nexus

determinations. The science strongly supports the important role subsurface connections can play when assessing the e ffects of surface waters, and it is appropriate to consider them in a significant nexus determination.

7.3.7. Gullies and Rills and Non

- Wetland Swales

Agency Summary Response

Based on comments additional clarity was provided in the final rule and preamble.

The f inal rule identifies all erosional features, including gullies, rills, and non

- wetland swales as

non

- jurisdictional features. Several commenters expressed concern that “arroyos” and “man

made swales “were absent from the list of erosional feature types. Th e final rule makes it clear that all erosional features would be excluded. Specifically, erosional features are not jurisdictional under the terms of paragraph (a) and the definitions in paragraph (c), especially the definition of tributary, and would be n on

- jurisdictional in any case. The Agencies inclusion of erosional features in the final rule was aimed to specifically avoid the confusion from previous regulatory guidance and at the request of commenters who stated that such exclusions were important to maintain.

Several commenters identified the need to clearly differentiate erosional features from jurisdictional waters, more specifically intermittent and ephemeral tributaries. The final rule clearly states that tributaries would be distinguished from erosional features by the presence of bed and banks and an ordinary high water mark. Concentrated surface runoff may occur within an erosional feature, but without creating the permanent physical characteristics associated with bed and banks and ordinary h igh water mark , the feature will not be jurisdictional

.

Several commenters suggested that ephemeral and intermittent drainages as well as streams that are not tributaries should be excluded from the final rule as these features are generally not

considere d jurisdictional waters. The final rule preamble states that some ephemeral streams are colloquially called “gullies” or “swales” even when they exhibit a bed and banks and an ordinary high water mark. Regardless of the name they are given locally, waters that meet the definition of tributary or wetland are not excluded erosional features. Given this variability in terminology, and the focus on physical characteristics in the definition of tributary, the agencies did not think it necessary to define terms l ike “gully” or “rill” in the final rule. Similarly, some wetlands are given the name swale, regardless of the name given, waters that meet the definition of a wetland

are not excluded erosional features and are subject to jurisdiction

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

269 Several commenters expressed concern that while the waters listed in the exclusions are never “waters of the United States,” they can serve as a hydrologic connection that the agencies might

consider under a case

- specific significant nexus under paragraphs (a)(7) and (a)(8) . The final rule provides additional clarity in that , for example

, while the non

- wetland swale itself will always be excluded from jurisdiction, the connection of the wetland to the tributary is relevant for determining whether the wetland has a significa nt nexus to downstream traditional navigable waters, interstates waters, or the territorial seas.

In addition, several commenters had concerns about how the final rule would impact CWA 402 permitting as well as the status of man

- made swales created expres sly for the purpose of detention, infiltration and bio

- attenuation of pollutants of stormwater runoff. The final rule states that these geographic features may function as “point sources” under CWA section 502(14)), such that discharges of pollutants to wa ters through these features would be subject to other CWA regulations (e.g., CWA section 402). Please note that the proposed rule did make changes to the definition of “waters of the U.S.” for all affected CWA programs, as does the final rule (please see s ummary response at 7.4.4 with respect to stormwater control features ).

The final rule also excludes lawfully constructed grassed waterways. The final rule stat e s that once converted to grassed waterways, these former streams segments no longer exhibit a bed and banks or ordinary high water mark and are excluded because they no longer meet the definition of “tributary.” It should be noted that such conversion does not sever jurisdiction over the entire length of the tributary above and below the grassed w aterway. Instead, the rule states that the grassed waterway is considered a constructed break in the bed and banks and ordinary high water mark. This is reflected in the definition of tributary, which specifically addresses natural or man

made breaks in be d and banks and ordinary high water mark.

The final rule also adds an exclusion for puddles. The proposed rule did not explicitly exclude puddles because the Agencies have never considered puddles to meet the minimum standard for being a “water of the Uni ted States,” and it is an inexact term. A puddle is commonly considered a very small, shallow, and highly transitory pool of water that forms on pavement or uplands during or immediately after a rainstorm or similar precipitation event. However, numerous

c ommenters asked that the agencies expressly exclude puddles in a rule. The final rule does exclude puddles.

Specific Comments

U.S. House of Representatives Committee on Science, Space and Technology (Doc. #16386)

7.404 In her blog, Acting Assistant Administrator Stoner said that the proposed rule specifically excludes erosional features. She was referring to gullies and rills.

Does EPA believe that the CWA covers erosional features? Please provide a detailed legal rationale and any supporting examples or precede nt. (p. 16)

Agency Response: The final rule makes it clear that all erosional features would be excluded from CWA jurisdiction. Specifically, erosional features are not jurisdictional under the terms of paragraph (a) and the definitions in paragraph (c), especially the def

inition of tributary, and would be non

- jurisdictional in any case.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

270 The Agencies inclusion of erosional features in the final rule was aimed to specifically avoid the confusion from previous regulatory guidance and at the request of commenters who stated th at such exclusions were important to maintain. See summary response 7. 3 .7 above.

New Mexico Department of Agriculture (Doc. #13024)

7.405 Erosional Features

The proposed rule lacks a definition for any of the terms: gullies, rills, or non

- wetland

swales. However, the Federal Register notice for this proposed rule does indicate that gullies "are ordinarily formed on valley sides and floors where no channel previously existed," indicating the relative impermanence thus variability that these erosional

featur es contribute in flow into jurisdictional waters.

Arroy os are another type o f erosional feature found throu ghout many western states. They are dry the vast majority of the year and ar e wet only immediately followin g a strong precipitation event. The topogr aphy in the arid West, with low

- density vegetative cover and highly erodible soils, causes arroyos to form in much the same way as gullies.

Arroyos are similar to gullies in their hydrological significance. However, one main

difference between the two feat ures is that arroyos are typically wide and shallow, whereas gullies are relatively deep channels. This difference is inconsequential regarding the volume of water either can carry or contribute to a system, especially when considering the arid landscapes in which arroyos exist. In these regions, arid top soils are more prone to erosion hence erosional features tend to be wider.

NMDA requests that arroyos he added to this exclusion category.

Aside from gullies, rills, and non

- wetland swales, how do the Agen cies plan on differentiating other erosional feature s not specifically excluded from the definition of Waters of the U.S. ? (p. 9

- 10)

Agency Response: The final rule makes it clear that all erosional features would be excluded from CWA jurisdiction, including “arroyos” and “man

- made swales“. Specifically, erosional features are not jurisdictional under the terms of paragraph (a) and the definitions in paragraph (c), especially the definition of tributary, and

would be non

-

jurisdictional in any case. The Agencies inclusion o f erosional features in the final rule was aimed to specifically avoid the confusion from previous regulatory guidance and at the request of commenters who stated that such exclusions were important to maintain. See summary response 7. 3 .7 above.

Tennessee Department of Environment and Conservation (Doc. #15135)

7.406 Gullies, rills and non

- wetland swales are notoriously difficult to distinguish as compared to what the Corps often classifies as ephemeral streams and/or wetlands. In fact, the proposed rule indicat es that waters the agencies would consider jurisdictional are oftenClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

271 confused as these erosional features. 245 The distinction is particularly difficult in mountainous areas where the concept of an erosional feature and a vertical stream are

often confused. EP A and the Corps must include greater clarity with regard to how gullies, rills and non

- wetland swales are defined. Explicit definitions will specifically enable crop and livestock production to continue without the concern over potential fines that may res ult without such clarity. Greater specificity will also aid federal and state soil and water conservation programs, including EPA's 319 Nonpoint Source Program, by avoiding unnecessary permits for the installation of Best Management Practices that

lessen s ediment and nutrient transport into Tennessee's waters. We request the agencies also provide more clarity as to what they believe are the driving distinctions between these features and waters that would be considered waters of the U.S. (p. 29)

Agency Response: See summary response 7. 3 .7 above.

West Virginia Department of Environmental Protection (Doc. #15415)

7.407 The WVDEP supports the exclusion of rills and gullies. However, this exclusion may

create some confusion between what classifies as a non

- jurisdictional rill or gully and what qualifies as a per se jurisdictional ephemeral tributary. Rills, gullies, and ephemeral drainways are all channels through which water only flows following precipitation that are otherwise dry. This exclusion should be broadened to eliminate ephe meral drainways and, thus, eliminate any confusion that may arise as a result of the proposed regulation's disparate treatment of these two classes of drainways. The preamble to the proposed regulation also states that puddles that dry up are excluded. 79 Fed.Reg. at 22,218. Whether as part of this gullies and rills exclusion or elsewhere, the exclusion of puddles needs to be clarified. (p. 14)

Agency Response: See summary response 7. 3 .7 above.

Department of Public Health and the Environment, State of Colorado (Doc. # 163 42)

7.408 Definitions: As exemplified by the above comments, there is some confusion related to the concept and definition of uplands. This may be the basis for some concerns that the proposed rule serves to increase CWA jurisdiction over areas that many consider to be

outside t he definition of waters of the US. Additionally, the terms "gullies,"" rills," and

"non

- wetland swales" are proposed to be exempt by rule, but the agencies have also not provided definitions of these features. The State recommends that the proposed rule

cl arify what is meant by these terms and in so doing recognize the unique nature of water

i n the West to avoid unnecessary conflicts and/or unintended consequences.

Agency Response: See summary response 7. 3 .7 above for discussion of gullies, rills, and non

- wetlands swales an d summary response 6.3 for discussion of uplands.

245 Id . at 22218

- 19. [ 79 Fed. Reg. 22188, 22211 (April 21, 2014)] ("It should be noted that some ephemera l streams are called' gullies' or the like when they are not 'gullies' in the technical sense ; such streams where they are tributaries under the proposed definition would be considered 'waters of the United States,' regardless of the name they are given l ocally"). Id . at 22219.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

272 Board of County Commissioners , Delta County, Colorado (Doc. #14405)

7.409 The gullies and rills exclusion is not adequately defined for livestock producers to determine the type of features on their properties, or to determine whether those features are jurisdiction or not excluded. While Delta County Commissioners generally agree that gullies and rills are the types of features that are far beyond the jurisdiction of the CWA and therefore the agencies should mak e clear they are not "waters of the U.S.," the agencies should include in the exclusion water features that have a bed and bank and in which water flows only briefly during and following a period of rainfall in the immediate locality. (p. 5)

Agency Response: Se e summary re sponse 7.3.7 above for discussion of gullies and rills and summary response 8.1.1 for discussion of the relevance of flow regime for the definition of tributary.

Southern California Water Committee (Doc. #16170)

7.410 The Proposed Rule intends to maintain curre nt exclusions contained within the definition of WOTUS, and to also incorporate others that have not been considered WOTUS through longstanding practice of the Agencies. However, the current exclusions and the proposed new exclusions do not specifically in clude or incorporate MS4 conveyance

facilities and other stormwater related facilities. The exclusions need to be revised to provide certainty to stormwater managers, state regulators, and the Agencies themselves.

...
D. Swales Exclusion

The Proposed Rule includes an exclusion for “gullies and rills, and non

- wetland swales.” Within the narrative, the Proposed Rule states further that, “[n]on

- wetland natural and

man

- made swales would not be ‘waters of the United States . . . .’ ” (79 Fed. Reg. 22188, 22219 ( April 21, 2014).) The Proposed Rule then appears to limit the stated exclusion by indicating that wetland swales could be jurisdictional under the adjacent or other waters categories. (Ibid.) To avoid uncertainty, and to ensure clarity with respect to the status of

man

- made swales, SCWC recommends that the exclusion be revised as follows:

Gullies and rills, and non

- wetland and man

- made swales. (p. 7, 9)

Agency Response: With respect to the jurisdictional status of stormwater control

features as waters of the U.S., please s ee summary response at 7.4.4. See summary response 7.3.7 above for discussion of swales.

San Bernardino County, California (Doc. #16489)

7.411 Exclusion of Swales: The language pertaining to the jurisdictional exclusion of "swales" is confusing. The proposed Ru le appears to limit the stated exclusion by indicating that wetland swales could be jurisdictional under the "adjacent" or "other waters" categories. This is a concern when dealing with man

- made swales created expressly as a treatment system for detention, infiltration and bio

- attentuation of pollutants in stormwater runoff. The DPW seeks clarification of this exclusion. (p. 4)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

273 Agency Response: With respect to the jurisdictional status of stormwater control

features as waters of the U.S. , please see summary response at 7.4. 4. See summary response 7.3.7 above for discussion of swales.

7.412 The Proposed Rule includes an exclusion for "gullies and rills, and non

- wetland swales." Within the narrative, the Proposed Rule states further that, "[n]on

- wetland natural and

man

- made swales w ould not be 'waters of the United States . . .'." 246 The Proposed Rule then appears to limit the stated exclusion by indicating that wetland swales could be jurisdictional under the "adjacent waters" or "other waters" categories. 247 This is a

concern when deal ing with manmade swales (wetland or otherwise constructed) created expressly as a treatment system for detention, infiltration and bio

- attenuation of pollutants in stormwater runoff. In the interest of clarity and to avoid uncertainty, the

DPW seeks a more precisely worded exclusion regarding the status of man

- made swales,

As such the DPW recommends that the exclusion be revised as follows:

"Gullies and rills, and non

- wetland and man

- made swales." (p. 20)

Agency Response: With respect to the jurisdictional status of stormwater control

features as waters of the U.S. , please see summary response at 7.4.4. See summary response 7.3.7 above for discussion of swales

.

City of Oceanside, California (Doc. #16509)

7.413 To ensure clarity with respect to the status of man

- made swales, CASQA recommends that the exclusion be revised as follows: Gullies and rills, and non

- wetland and man

- made swales. (p. 5)

Agency Response: See summary response 7.3.7 above.

Hidalgo Soil and Water Conservation District, Lordsburg, New Mexico (Doc. #19450)

7.414 Gullies, Rills, & Non

- Wetland Swales: Erosional features with minimal hydrologic impact, such as arroyos, should be excluded alongside gullies, rills, and non

- wetland swales. (p. 1 )

Agency Response: See summary response 7.3.7 above.

National Association of Flood & Stormwater Management Age ncies (Doc. #13613)

7.415 Paragraph (b)(5)(iii) exempts gullies and rills and non

‐ wetlands swales, however, the preamble on page 22208 states that a "confined surface connection consist of permanent, intermittent or ephemeral flow paths, such as (but not limited to) swales, gullies, rills, and ditches.” This narrative contradicts the proposed rule exemption for gullies and rills and NAFSMA requests that EPA reaffirm the exemption by clarifying and correcting the contradiction. (p. 3)

Agency Response: See summary response 7.3.7 ab ove.

246 Federal Register, at 22218 and 22219.

247 Ibid.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

274 Indiana Farm Bureau et al. (Doc. #14119)

7.416 There is also concern about whether gullies, rills and non

- wetland swales are truly exempt from regulation. While the rule states that they are not “waters of the United States,” the preamble notes that they “may still serve as a confined surface hydrologic connection between an adjacent wetland or water and a traditional navigable water, interstate water or the territorial sea, provided there is an actual exchange of water between those waters, and the water is not lost to deep groundwater through infiltration (i.e., transmission losses). In addition, these geographic features may function as ‘point sources,’ such that discharges of pollutants to waters through these features could be subject to other CWA auth orities (e.g., CWA section 402 and its implementing regulations).” 79 Fed. Reg. at 22204. It is incumbent upon the agency to more clearly explain the activities that will be allowed in relation to gullies, rills and non

- wetland swales (i.e., that they can be filled in, excavated or moved without the requirement to obtain a permit even if they serve as the confined surface hydrologic connection for an adjacent water). Additionally, it would be helpful to note when a section 402 permit may be required for gul lies, rills and non

- wetland swales.

Finally, it appears that the agency has slightly hedged on the statement that gullies, rills,

and non

- wetland swales are not “waters of the United States.” While we are confident that we and our members can recognize gul lies, rills and non

- wetland swales, we have learned that the agencies will still want jurisdictional determinations in many cases to determine whether the exemption is met. It would appear that the concern here is much like that for ditches. If the agency is looking to regulate something that is perennial in nature, that should be stated. It is inaccurate and misleading to claim that gullies, rills and

non

- wetland swales are exempt while at the same time intending to perform delineations to make sure they m eet whatever internal policies the agencies may have. (p. 4)

Agency Response: Gullies, rills, and swales that do not meet the definition of tributary are not jurisdictional , regardless of their status as a connection to

downstream waters. Please see Section 12.3, 402

– NP DES in the Implementation Issues Compendium, regarding additional information on the NPDES program. See

summary response 7 .3 .7 above for discussion of gullies, rills, and swales.

Southpace Properties, Inc. (Doc. #6989.1)

7.417 The proposed approach stands to cause chaos in the field resulting in confusion and delay as regulators struggle to distinguish between jurisdictional ephemeral drainages and unregulated gullies, rills, and non

- wetland swales. Indeed, if these features are so similar, why are erosional f

eatures categorically excluded and ephemeral drainages are categorically jurisdictional? The agencies should exclude ephemeral drainages from jurisdiction as well as erosional features like gullies, rills, and non

- wetland swales. (p. 2)

Agency Response: The rule provides greater clarity regarding which waters are subject to CWA jurisdiction, reducing the instances in which permitting authorities are required to make jurisdictional determinations on a case

- specific basis. See summary response 7.3.7 above for discussion of g ullies and rills and summary response 8.1.1 for discussion of the relevance of flow regime for the definition of tributary.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

275 Kerr Environmental Services Corp. (Doc. #7937.1)

7.418 4. 328.3(b)(5)(vii) Gullies and rills and non

- wetland swales . The rationale for gul lies, rills and swales not being waters of the United States should be that they, like ditches, when located wholly in uplands and drain only uplands are not jurisdictional as long as they have less than perennial flow. As such, the explanation at (b)(5)(v ii) should drop the

reference to non

- wetland swales as follows:

"Gullies and rills and swales"

Man

- made swales wholly in uplands, and draining only uplands, are constructed to concentrate and convey stormwater drainage. There is no distinct "design standar d" for swales compared to "ditches" and the terminology/differences between swale and ditch are simply subjective terms. Swales can, in Coastal Plain, Piedmont and even mountain/bedrock environments, accumulate fine materials (clay and silts), which will

i nhibit infiltration, allowing hydrophytic vegetation to predominate and even allow marginal hydric soils to begin to form. They also allow additional infiltration and can assist in recharging the groundwater table, and are thus a credible part of the "gree n infrastructure" approach to improving water quality. Such a condition should not, by definition, cause the United States government to consider such swales to be waters of the United States. This would both be inconsistent with the approach of the USACE since 1986 with regards to wetlands (November 13, 1986 preamble for 328.3, page 41217), and inconsistent with USACE/USEPA guidance issued for compliance with the Rapanos decision. For these reasons the wording of this item needs to be revised accordingly.

Rills and gullies are by definition erosional features that convey runoff, and thus when entirely in uplands should not be considered waters of the United States. (p. 4)

Agency Response: S ee summary response 7.3.7 above.

NAIOP Commercial Real Estate Development Associatio n (Doc. #14621)

7.419 6. §328.3(b)(5)(vii). Arid Ephemeral Streams.

It is unclear whether EPA intends to regulate ephemeral streams such as arroyos as

“tributaries”. 248 If arroyos are considered tributaries, this would be a dramatic increase in regulatory jurisdic tion and a burden on landowners, especially in the arid West. These arid ephemeral streams typically carry stormwater only during seasonal, and in some cases rare, rain events. The truth is that water flows downhill and water in the arid West

has been carv ing the landscape for centuries.

We think the more reasonable and justifiable approach is, as a matter of policy, not to regulate arid ephemeral streams. However, exceptions to this policy would make sense. EPA might determine that a particular ephemeral s tream should be opted in because (a) it has been proven to flow, at X rate (i.e., that is more than de minimus), into a regulated water, for Y number of hours (e.g., 240), for Z number of years (e.g., 5 consecutive), based on historic flow, or (b) the Corp s has made a case

- by

- case determination under the significant nexus criteria.

248 EPA’s Q&A #6 did not answer this concern.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

276 7.420 Given the lack of justification for treating ephemeral streams differently than gullies and rills, which function similarly in conveying water in response to rainfall

events, we recommend that you replace:

“(vii) Gullies and rills and non

- wetland swales” with:

(vii) Gullies, rills, non

- wetland swales and arid ephemeral streams such as

arroyos. (p. 4

- 5)

Agency Response: See summary response 7.3.7 above for discussion of gullies,

rills and swales a nd summary response 8.1.1 for discussion of historic and final rule coverage of ephemeral streams.

Vulcan Materials Company (Doc. #14642)

7.421 Categorically, exempt ephemeral waters from jurisdictional coverage and establish

reasonable minimum flow characteris tics for a water to be considered subject to CWA jurisdiction. (p. 4)

Agency Response: See Technical Support Document section VII and summary response 8.1.1.

Newmont Mining Corporation (Doc. #13596)

7.422 4. Exclusion for Swales, Rills, and Gullies

The Agencies’ Proposal would exclude from the definition of jurisdictional waters all “[g]ullies and rills and non

- wetland swales.” See, e.g., paragraph (b)(5)(vii) at 79 Fed. Reg. 22263. While we applaud the Agencies for including this provision in the Proposal, we find it puzzling t hat the Agencies did not also exclude ephemeral drainages. The flow in ephemeral drainages, as is the case with the flow in gullies, rills, and swales, is entirely precipitation

- based

– either snowmelt or rainfall. No groundwater by definition infiltrates ephemeral drainages. The amount and duration of flow in ephemeral drainages, when

located in the arid/semi

- arid West, will typically be comparable to that in gullies, rills,

and swales

– that is, there will typically be no flow, or at most a few hours of f low every year. Moreover, the chances that the flows in such drainages will reach, by surface or shallow subsurface hydrological connection, a tributary network to a TNW is the same as rills, gullies, and swales: in the arid and semi

- arid West, the chances are slim to none. Yet somehow ephemeral drainages are per se jurisdictional if one drop of water ever reaches a tributary network, while rills, gullies, and swales are categorically excluded. This distinction makes no sense. Where channels or drainages co ntain only precipitation runoff, and are located in areas of the country where evaporation exceeds precipitation, then the channels should not be deemed jurisdictional waters. The reason is simple: they cannot be deemed capable of, much less actually, havi ng a significant effect on the chemical, physical, or biological integrity of a TNW. (p. 37

- 38)

Agency Response: See summary response 7.3.7 above for discussion of gullies, rills and swales and summary response 8.1.1 for discussion of historic and final rule coverage of ep hemeral streams.

7.423 6. Suggested Changes to the ProposalClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

277 As discussed above, the Agencies need to amend the Proposal to make plain that ephemeral and intermittent drainages that do not constitute “tributaries” are per se non

jurisdictional. Specifically, the Agencies should modify the Proposal to conform to their stated understanding and amend Subsection (b) to incorporate a new categorical exclusion for: “Ephemeral and intermittent drainages and streams that are not tributaries.”

In addition, any final rule should also categorically exempt from jurisdictional water status all ephemeral drainages and intermittent streams that are located in areas where annual evaporation exceeds annual precipitation and that do not contribute flow via a confined surface hydrol ogy to a TNW or tributary system of a TNW at least in some regular fashion, e.g., three weeks per year averaged over 10 years. No such drainages can be deemed to significantly affect a TNW. This can be accomplished by incorporating a new categorical except ion in subsection (b) of the Proposal for “Ephemeral and intermittent drainages and streams that: (1) are located in areas where the annual evaporation rate exceeds the precipitation rate; and (2) contribute flow to a water identified in paragraphs (a)(1) through (a)(4) of this section for less than three weeks per year averaged over ten years.” (p. 37

- 36)

Agency Response: See summary response 7.3.7 above for discussion of gullies, rills and swales and summary response 8.1.1 for discussion of historic and final rule

coverag e of ephemeral streams.

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.424 Proposed Exemption for Gullies, Rills, and Non

- wetland Swales

The proposed rule includes an exemption for “gullies and rills and non

- wetland swales” ((122.2)(b)(5)(vii)). The proposed rule does not define “gully,” “rill,” or “swale,” but the preamble talks in terms of lacking features such as an Ordinary High Water Mark (OHWM) and distinct bed and banks. See 79 Fed. Reg. at 22218

- 19. That explanation

m ust be included in the regulation itself. In addition, the agencies’ statement (79 Fed. Reg. at 22219) that a gully or swale may, even if exempt, provide a hydrological connection between a wetland and a tributary of a navigable water, so as to make the

we tland subject to CWA jurisdiction, should only apply if there is a very short distance

betwee n the wetland and the navigable water. Otherwise, the effect of the wetland on the navigable water through the gully or swale is just too theoretical for the basis of CWA jurisdiction. (p. 12

- 13)

Agency Response: See Technical Support Document sections II and IX and summary response 7.3.7 above

.

Alameda County Cattlewomen (Doc. #8674)

7.425 The gullies and rills exclusion is not adequately defined for livestock producers to

determine th e type of features on their properties, or to determine whether those features are jurisdiction or not excluded. The agencies specifically asked for comments on “how they could provide greater clarity on how to distinguish between erosional features such

a s gullies, which are excluded from jurisdiction, and ephemeral tributaries, which are categorically jurisdictional. While ACCW generally agree that gullies and rills are the types of features that are far beyond the jurisdiction of the CWA and therefore th eClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

278 agencies should make clear they are not “waters of the U.S.,” the agencies should include in the exclusion water features that have a bed and bank and in which water flows only briefly during and following a period of rainfall in the immediate locality. The inclusion of the features would do exactly what the agencies requested. If landowners cannot distinguish these features than they should all be treated the same way, and because they do not meet the standard articulated by Justice Scalia in Rapanos , th ey should be

excluded. 249

The addition of these ephemeral features (those that only hold water during and immediately following a rainfall event) would alleviate much of the confusion and anger the agriculture community has with the proposed rule. The exclus ion of more features under the “gullies” definition would allow the agencies to focus on those features that more clearly have a significant nexus to larger bodies of water. It would provide clarity to the livestock industry that producers’ dry washes and dry ditches are clearly not jurisdiction, without being dependent on the definition or an analysis of “uplands.” And it would allow the agencies to focus their resources on those bodies of water that have a better chance of having a significant nexus with larger downstream waters. (p. 23

- 24)

Agency Response: See summary response 7.3.7 above for discussion of gullies, rills and swales and summary response 8.1.1 for discussion of historic and final rule coverage of ephemeral streams.

Hancock County Farm Bureau, Indiana (Doc. #11980)

7.426 We are also concerned that gullies, rills and non

- wetland swales will be considered regulated features even though they are generally deemed to be exempt in the rule. First, we understand that those features have generally been exempt when they ar e within fields. Those exact same features have been regulated in construction projects, such as when roads are built or repaired. It is also our understanding that the agencies may still

conduct on

- site reviews of some gullies, rills and non

- wetland swale s to determine whether they may be declared to actually be a tributary and not an exempt feature or to review the amount of flow they may carry. (p. 2)

Agency Response: See summary response 7.3.7 above for discussion of gullies, rills and swales and summary response 8.1.1 for discussion of ephemeral streams.

Bayless and Berkalew Co. (Doc. #12967)

7.427 The ambiguous wording of the rule is ripe for litigation as left to the interpretation of agency enforcement and environmental litigants... In section 328.3 (5) (vi) and (vii) gulli es, rills and shallow subsurface connections are exempt, however on page 22210 of the proposed rule it states that “confined surface connections that provide a discrete pathway for water to be exchanged between the potentially adjacent wetland or water

and an (a) (1) through (a) (5) water present the clearest evidence of a hydrologic connection... examples of confined surface water hydrologic connections that demonstrate adjacency are swales, gullies, and rills.” The proposal states that it can be

249 Supra Note 21 . [ San Franscisco Baykeeper v. Cargill Salt Division , 418 F.3d 700, 707 (9th Cir. 2007). ]Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

279 hard to tel l the difference between an erosional feature and an “ephemeral stream”, which is regulated (79 Fed. Reg. 22209). (p. 4)

Agency Response: See summary response 7.3.7 above.

Indiana Farm Bureau, Inc. (Doc. #14124)

7.428 EXCLUSION FOR GULLIES, RILLS, AND NON

- WETLAND SWALES

The exe mption for “gullies, rills and non

- wetland swales” is also one which may have little effect in removing features from jurisdiction. We have been made aware of several instances over the years in which the agencies claimed jurisdiction over gullies. Based

u pon our inquiries on this particular exception, we are extremely concerned that the agencies will still seek to review gullies, rills and non

- wetland swales to determine whether they are “gullies” or something else that the agencies want to regulate. While we are asked to trust the agencies in the statements that these features are excluded and that the scope of jurisdiction is consistent with the limited jurisdiction acknowledged by the U.S. Supreme Court, history has shown that there is intent to regulate these features as something other than “gullies, rills and non

- wetland swales.”

The use of “gullies, rills and non

- wetland swales” as required connections for adjacent waters also raise questions about whether any limits will be placed on those features. As excluded features, there would be no requirement to obtain a permit to do anything to or within the feature, such as filling in a gully or moving a non

- wetland swale. However, there is serious concern that efforts will be made by either the agencies or environmental groups to limit the ability of someone to remove a feature which also provides the requisite connection for an “adjacent water” to be jurisdictional. If the feature is removed, the jurisdictional nature of the “adjacent water” would be remove d. The “other water” would now be an isolated feature and subject solely to state law, not federal. Our members are skeptical that the agencies will concede that they no longer have jurisdiction. (p. 5)

Agency Response: Gullies, rills, and swales that do not meet the defin ition of the tributary are not jurisdictional , regardless of their status as a connection to downstream waters. See summary response 7.3.7 above.

Kansas Agriculture Alliance (Doc. #14424)

7.429 Again, the terms gullies and rills are completely undefined in the functional part of the rule and provide no certainty to the regulated community as to how to apply the terms. The term “gully” is defined by Merriam Webster dictionary as: “[A] trench which was originally worn in the earth by running water and through which water often runs after

rains.” 250 On its face the term seems to imply that a gully could be an ephemeral stream, but this cannot be verified as the term is not defined. The agencies have fu rther muddied the water by stating that gullies “are younger than streams in geologic age . . . .” 251 This puts landowners in the awkward position of determining a feature’s age. In addition,

250 Merriam Webster Online Dictionary

, available at http://www.merriam

- w ebster.com/dictionary/gully (last visited Nov. 7, 2014).

251 79 Fed. Reg. at 22218.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

280 because the agencies’ age restraint only appears in the preamble i t does not have the

effect of law.

Rills are also undefined in the functional part of the rule. While the agencies state that rills are “formed by overland water flows eroding the soil surface during a rain” and are “less permanent on the landscape,” the d efinition would not have the force of law because it exists in the preamble. 252 The introduction of a permanency component to define rills will make it difficult for a landowner to distinguish a rill, from a gully, from a ditch, or from an ephemeral stream. (p. 7

- 8)

Agency Response: See summary response 7.3.7 above.

LeValley Ranch, LTD (Doc. #14540)

7.430 The gullies and rills exclusion is not adequately defined for livestock producers to determine the type of features on their properties, or to determine whether those features are jurisdiction or not excluded. (p. 7)

Agency Response: See summary response 7.3.7 above.

Colorado Cattlemen’s Association (Doc. #15068)

7.431 The gullies and rills exclusion is not adequately defined for livestock producers to determine the type of features on their propertie s, or to determine whether those features are jurisdiction or not excluded. While CCA generally agrees that gullies and rills are the types of features that are far beyond the jurisdiction of the CWA and therefore the agencies should make clear they are no t "waters of the U.S.," the agencies should include in the exclusion water features that have a bed and bank and in which water flows only briefly during and following a period of rainfall in the immediate locality. (p. 7)

Agency Response: See summary response 7.3.7 above.

North Carolina Farm Bureau Federation (Doc. #15078)

7.432 ...There is an exclusion for non

- wetland swales, but no exclusion for grassed waterways. There should be an exclusion for grassed waterways which are essentially manmade

swales. These should not be conside red streams or tributaries or any other type of jurisdictional water, and should be automatically excluded from jurisdiction in the same manner as swales. (p. 16)

Agency Response: See summary response 7.3.7 above for discussion of gullies, rills and swales and summary resp onse 8.1.1 for discussion of historic and final rule coverage of ephemeral streams.

Weyerhaeuser Company (Doc. #15392)

7.433 E. The Exclusion for Erosional Features Should be Expanded

252 Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

281 The proposed rule categorically excludes several erosional features (gullies, rills, and

non

- wetland swales) from the definition of “waters of United States,” 253 and Weyerhaeuser agrees that these features should remain non

- jurisdictional. The Agencies should extend the exclusion to cover ephemeral drainages on the same grounds. Even the Agencies seem to acknowledge the similarities between these features and the difficulty in distinguishing between excluded erosional features and jurisdictional tributaries. Yet, the Agencies are unable to articulate a meaningful justification for the differential treatment apart from noting the absence of an ordinary high water mark in the excluded

features. 254 But the ordinary high water mark concept is not a reliable basis for distinguishing between jurisdictional and non

- jurisdictional features. (p. 1 2)

Agency Response: See summary response 7.3.7 above for discussion of gullies, rills and swales, summary response 8.1.1 for discussion of historic and final rule coverage of ephemeral streams, and summary response 8.1.2 for discussion of the

use of OHWM.

Charlotte

- Mecklen burg Storm Water Services (Doc. #3431)

7.434 5. This comment pertains to Section 328.3 Definitions, (b)(5)(vii), Federal Register page 22263. The difference between a “gully” and a “ditch” is not clear. CMSWS recommends defining gullies, rills, and non

- wetland s wales. (p. 2)

Agency Response: See summary response 7.3.7 above.

Duke Energy (Doc. #13029)

7.435 d. Ephemeral Streams Should be Excluded from Jurisdiction the Same as Erosional

Features

Duke Energy is encouraged that the agencies have determined that erosional features

would be excluded from jurisdiction. However, there is still a significant debate over how these features, such as gullies and rills, are any different than ephemeral drainages or tributaries, which would be classified categorically jurisdictional as tributaries. According the preamble: “Gullies are relatively deep channels that are ordinarily formed on valley sides and floors where no channel previously existed.” “Rills are formed by overland water flows eroding the soil surface during rain storms.” 255 Both of these are erosional features that only carry water when it rains, which is also true of ephemeral streams. While the proposed rule does not define an ephemeral stream, EPA’s Connectivity Report defines it as: “A stream or river that flows briefly in direct resp onse to precipitation; these channels are above the water table at all times.” 256 Likewise, non

wetland swales, that mainly carry water during rainstorms or snowmelt, are difficult to distinguish from ephemeral streams.

253 79 Fed. Reg. at 22,263.

254 See id . at 22,218

- 19.

255 79 Fed. Reg. at 22,218

. 256 Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (EPA/600/R

- 11/098B) September 2013, Page A

- 5.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

282 The agencies, themselves, recognize th is difficulty and seek comment on how to clarify and differentiate these types of features. 257 It seems that if these types of features are so similar in function as to be difficult to distinguish one from the other. Therefore, Duke Energy believes it would be logical for the agencies to exclude ephemeral streams from the proposed definition of “waters of the United States” in addition to gullies, rills and

non

- wetland swales. (p. 49)

Agency Response: See summary response 7.3.7 above for discussion of gullies,

rills and swale s, summary response 8.1.1 for discussion of historic and final rule coverage of ephemeral streams, and the TSD section 7.B.6 for discussion of intermittent, ephemeral and headwater tributaries on downstream waters.

Southern Company (Doc. #14134)

7.436 ... the agencies seek to expand the list of non

- jurisdictional waters to include gullies, rills

and non

- wetland swales. Once, again, we believe this is an appropriate response and commend the agencies for excluding such features from the Act’s reach. Yet the propo sal fails to provide any meaningful definition or distinguishing criteria between jurisdictional ditches and these other excluded features. If the agencies wish to provide clarity and predictability, such clarification is absolutely warranted. Otherwise, c onfusion and inconsistency involving jurisdictional and non

- jurisdictional features will continue. (p. 50)

Agency Response: See summary response 7.3.7 above for gullies, rills and swales and summary responses 6.0 for ditches.

National Lime Association (Doc. #14428.1)

7.437 5. “ Rills,” “Swales,” and “Upland” are also Words Which the Regulatory Text

Needs to Define.

a. “Rills”: Ambiguity also exists with respect to the term “rills.” The Merriam

- Webster online dictionary defines “rill” as a “very small stream.” 258 The proposed rule does not explain how one is expected to differentiate between a “rill” and a “ditch” or a “gully” containing some amount of water. The need to be able to do so will be obviously critical, because, under the proposed rule, “gullies” and “ rills” are per se not jurisdictional, whereas a “ditch” may or may not be. The proposed rule as currently written offers no help in this regard. Instead, the proposed rule merely assumes that such a distinction can

and will be made. NLA submits that such a n assumption is not justified. Not only does the proposed rule need to define these critical terms, it would be extremely beneficial were the rule to also include pictorial examples of these terms.

b. “Swales”: The Merriam

- Webster online dictionary defines “swale” as “a low

- lying or depressed and often wet stretch of land.” 259 The proposed rule would exclude a “swale”

257 79 Fed. Reg. at 22,219

. 258 See http:// www.merriam

- webster.com/dictionary/rill

. 259 http://www.merriam

- webster.com/dictionary/swale

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

283 as a WOTUS, provided it is in a non

- wetland. 260 The proposed rule fails, however, to provide any meaningful help or insights for identifying a “s wale.” (p. 7

- 8)

Agency Response: See summary response 7.3.7 above for gullies, rills and swales and summary responses 6.0 for ditches.

Salt River Project Agricultural and Power District and the Salt River Valley Water Users Association (Doc. #14928)

7.438 2. Gullies, Rills and S wales

The agencies propose to exclude gullies, rills, and non

- wetland swales, but do not propose definitions of those terms. The preamble states that the agencies specifically seek comment on how to distinguish between erosional features, such as gullies, which are excluded from jurisdiction, and ephemeral tributaries, which would be subject to jurisdiction.

Asking field personnel to correctly categorize erosional features is arbitrary at best, and will only lead to over

- regulation of erosional features tha t should remain non

jurisdictional. The agencies should exclude erosional features like gullies, rills and non

wetland swales from jurisdiction, particularly when their formation is directly associated with active mining, dredging or construction activitie s. (p. 16)

Agency Response: See summary response 7.3.7 above for gullies, rills and swales and summary response 8.1 for discussion of tributaries.

Luminant (Doc. #15100)

7.439 Luminant further believes that the EPA and USACE should revise their proposed approach to ephemeral tri butaries and erosional features to ensure that ephemeral waters that are not tributaries are expressly excluded from jurisdiction. For example, additional considerations could have been included for distinguishing between ephemeral tributary

streams and no n

-

jurisdictional ephemeral features to help exclude gullies, rills, and non

wetland swales from inappropriate jurisdictional designations as contemplated by the Proposed Rule. These issues and many other aspects of the Proposed Rule create significant unce rtainty surrounding the costs and other permitting and operational implications to the coal mining and coal

- fired electric power generation industry should this rule be finalized and fully implemented. (p. 7)

Agency Response: See summary response 7.3.7 above and summary re sponse 8.1

for discussion of tributaries

.

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407)

7.440 F. The Proposed Rule Provides No Basis for Distinguishing Between Erosional Features and Small Ephemeral Features.

...

260 See, e.g., proposed regulatory text for section 328.3(b)(5)(vii).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

284 The proposed approach stand s to cause chaos in the field, resulting in confusion and delay as regulators struggle to distinguish between jurisdictional ephemeral drainages and unregulated gullies, rills, and non

- wetland swales. 261 Indeed, if these features are so similar, there is no rational reason that erosional features are categorically excluded and ephemeral drainages are categorically jurisdictional. The agencies should exclude ephemeral drainages from jurisdiction as well as erosional features like gullies, rills, and

non

- wetlan d swales. (p. 7)

Agency Response: See summary response 7.3.7 above for discussion of gullies, rills and swales, summary response 8.1.1 for discussion of ephemeral streams, and the TSD section 7.B.6 for discussion of intermittent, ephemeral and headwater

tributaries on down stream waters.

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.441 D. THE AGENCIES SHOULD CLARIFY THE EXCLUSION FOR GULLIES, RILLS, AND NON

- WETLAND SWALES.

The Agencies should clarify their proposal to exclude gullies, rills, and n on

- wetland swales. First, the Agencies should clearly define the terms “gully,” “rill,” and “non

wetland swale.” While the Proposed Rule excludes gullies, it also notes that some ephemeral streams are called “gullies” even if they are not technically gulli es. A definition is needed to clarify the difference between such mis

- named streams and gullies. Similarly, the Proposed Rule states that in “certain circumstances,” 262 swales may include areas that meet the regulatory definition of wetlands. The Agencies should define “swale” in a way that clearly distinguishes such features from wetlands and tributaries.

Second, the Agencies should reconcile potentially conflicting sta tements in the Proposed Rule about gullies, rills, and non

- wetland swales. While the Agencies state that gullies, rills, and non

- wetland swales will be non

- jurisdictional by rule, even if they meet the definition of a categorical “waters of the United Stat es,” the Agencies undercut this

statement elsewhere in the rule:

It is important to note, however, that even when not jurisdictional waters, these

non

- wetland swales, gullies, rills and specific types of ditches may still be a surface hydrologic connection for purposes of the proposed definition of adjacent under paragraph (a)(6) or for purposes of a significant nexus analysis under paragraph (a)(7). 263

Thus, it appears that even if a gully, rill, or non

- wetland swale is not jurisdictional in and of itself, t hese water features can still be the conduit for the Agencies to assert jurisdiction over another water, such as waters in the same floodplain or riparian area. With respect to tributaries, the Proposed Rule states that gullies, rills, and non

- wetland

swal es will not be considered tributaries even though these water features “may

261 In fact, in practice even the distinction between “swales” and “ditches” is largely limited to a subjective choice of terminology rather than any actual difference in design.

262 Id . at 22,219. [ Proposed Rule, 79 Fed. Reg. ]

263 Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

285 contribute flow to a tributary in systems with steep side slopes.” 264 However, in the Proposed Rule’s discussion of “adjacent waters,” the agencies state that “[c]onfined

surface con nections that provide a discrete pathway for water to be exchanged between the potentially adjacent wetland . . . present the clearest evidence of a hydrologic

connection.” 265 The agencies list swales, gullies, and rills as “[e]xamples of confined

surface wa ter hydrologic connections that demonstrate adjacency.” 266 The Agencies should revise the Proposed Rule to reconcile these conflicting statements. (p. 28)

Agency Response: Gullies, rills, and swales that do not meet the definition of tributary are not subject to jurisdiction , regardless of their status as a connection to downstream waters. See summary response 7.3.7 above. In addition, even where these features provide a connection between upstream and downstream waters, they remain nonjurisdictional. These statements are n ot in conflict as jurisdictional status never changes.

Ducks Unlimited (Doc. #11014)

7.442 We are aware that the issues of ditches, swales, gullies, and rills have caused concern among the agricultural sector. For example, the rice industry has expressed the concern that the changes made to the treatment of ditches and irrigation canals could br ing these key on

- farm infrastructural components of rice production within the new definition of

“waters of the U.S.”

Thus, the longstanding exemption for the agricultural drainage ditches and irrigation canals (enshrined within past regulatory practices, if not rule) needs to be made perfectly clear by the language of the final rule.

We encourage the agencies to consider any revisions to the definitions and language of the rule and preamble that help ensure its intentions with respect to these types of wa ters and artificial water conveyances, and the meaning and interpretation of the rule, are clear and precise to the public and to their own regulators. (p. 14

- 15)

Agency Response: Gullies, rills, and swales that do not meet the definition of tributary are not jurisdiction al , regardless of their status as a connection to downstream waters. See summary response 7.3.7 above. In addition, see summary response 6.0 f

or ditches.

Clean Water Action (Doc. #15015)

7.443 We recommend that gullies, rills and non

- wetland swales not be cate gorically excluded from CWA jurisdiction, and suggest the agencies instead classify them as “other waters” and evaluate their jurisdictional status on a case specific basis. In the preamble of the proposed rule, the agencies address the difficultly of dist inguishing gullies from ephemeral streams and further note that these water features are often conduits for moving water between streams, wetlands and other adjacent waters that are clearly jurisdictional. We agree with the SAB panel’s assessment that wate r features like gullies,

264 Id . at 22,204

. 265 Id . at 22,210.

266 Id

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

286 rills and non

- wetland swales can have a significant impact on the physical, biological and chemical integrity of downstream waters, and to automatically exclude all of these features from CWA protections is not scientifically sound

. 267

Such a decision is particularly concerning given that the rule as proposed lacks a recapture provision, so if any of these types of water features were in the future found to have a significant impact on downstream water quality, the agencies would be u nable to step in to protect them. We recommend that the agencies take a closer look at the wealth

of literature on human

- modified stream ecosystems, as described by the SAB in it comments on EPA’s Connectivity Report. 268 This literature could help inform the agencies as to which human or naturally altered water features have a significant impact on downgradient water quality, and which do not. As the science of stream connectivity, especially as it relates to impacts caused by human alterations and natural ev ents evolves, it is essential that the agencies continue to have the ability to evaluate the potential impact of these water features on a case specific basis. (p. 4

- 5)

Agency Response: See summary response 7.3.7 above , compendium 8 regarding

tributaries and TSD section 7. A.2.

American Rivers (Doc. # 15372)

7.444 2. Allow Gullies and Non

- Wetland Swales to Benefit from a Significant Nexus Test

Gullies should not be categorically excluded as a “water of the United States.” Instead they should be considered as “other waters” and be s ubject to a case

- specific determination of significant nexus. Gullies are formed by the same erosional processes that maintain and shape stream channels, particularly headwater streams in steep, erodible, landscapes. Headcutting and formation of gullies is the means by which river networks extend their reach further in the direction of the headwater landscape. For this reason, gullies may be difficult to distinguish from ephemeral tributaries, which are jurisdictional. In fact, the Agencies note this diffic ulty in the proposed rule. 269
Additionally, gullies can be a surface hydrologic connection for purposes of the proposed definition of adjacent under paragraph (a)(6) and for the purpose of a significant nexus analysis under paragraph (a)(7). 270 Despite these c onnections, under the proposed rule gullies are categorically excluded as jurisdictional waters. With the absence of a recapture provision, gullies that might demonstrate a significant nexus to downstream waters could not be deemed jurisdictional. Therefor e, we recommend that gullies should

267 Memorandum from Dr. Amanda Rodewald to Dr. David Allen, Comments to the chartered SAB on the Adequacy of the Scientific and Technical Basis of the Proposed Rule Titled “Definition of ‘Waters of the United States” Under the Clean Water Act.” (September 2, 2014). Available at: http://yosemite.epa.gov/sab/sabproducts.nsf/F6E197AC88A38CCD85257D49EDC/$File/Rodewald_Memorandum_ WOUS+Rule_9_2_14.pdf (Hereinafter SAB Review Memo) and SAB Rule Review Letter.

268 U.S. EPA Science Advisory Board, SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, EPA

- SAB

- 15

- 001, a t 46 (Oct 17, 2014) (hereinafter “SAB Connectivity Review”), available at http://yosemite.epa.gov/sab/sabproduct. nsf/fedrgstr_activites/AF1A28537854F8AB85257D74005003D2/$File/EPA

- SAB

- 15

- 001+unsigned.pdf

. 269 Id. at 22219. [ Definition of WOTUS , 79 Fed. Reg. at 22203. ]

270 Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

287 be re

- categorized under “other waters” and be subject to the significant nexus test. We believe that some gullies can have a significant effect on the chemical, physical, and biological integrity of downstream waters and therefore should not be categorically

excluded. 271

Additionally, non

- wetland swales should not be categorically excluded from being considered a jurisdictional water. Swales are categorized as wetland swales or non

wetland swales. Wetland swales are jurisdi ctional as adjacent waters or other waters.

Non

- wetland swales are not eligible to receive jurisdictional status under the proposed rule. Like gullies, non

- wetland swales can be considered a surface hydrologic connection for purposes of the proposed defini tion of adjacent under paragraph (a)(6) and for the purpose of a significant nexus ana lysis under paragraph (a)(7). 272 Thus, water may flow through them from one jurisdictional water to another, and these connections may significantly affect jurisdictional w aters. Swales are also used to define ‘river network’ in the Connectivity Report, “a hierarchical, interconnected population of channels or swales that drain water to a river. Flow through these channels can be perennial, intermittent, or ephemeral .” 273 This further emphasizes their imp ortance to downstream waters. 274 By treating non

- wetland swales as categorically excluded waters, the Agencies are creating a scenario where there is potential for confusing non

- wetland swales with the jurisdictional ephemeral st reams they resemble. The Agencies recognize this similarity in the proposed rule and are asking for comments o n how to distinguish the two. 275 Rather than categorically excluding all non

- wetland swales, these features should be treated as “other

waters” and be subject to a significant nexus test to determine their impact on the integrity of downstream jurisdictional waters. (p. 29

- 30)

Agency Response: See summary response 7.3.7 above , compendium 8 regarding

tributaries and TSD section 7.A.2.

7.445 3. Clarify the Definition of “Rills”

We recommend that rills remain as non

- jurisdictional waters, however the current definition in the proposed rule is ambiguous and needs to be modified. Rills are defined largely in the context of other features in the proposed rule. For example, th ey are defined as “less permanent on the landscape than streams and typi cally lack an OHWM.” 276 For increased clarity, the Agencies should more clearly define “rills,” reflecting their physical characteristics as small, shallow, and temporary pathways for wa ter that typically occur in areas with no vegetation such as farm fields or construction sites and deemphasize the importance of the presence or absence of an OHWM. (p. 30)

Agency Response: The final rule clearly states that tributaries would be distinguished from erosiona l features by the presence of bed and banks and an ordinary high water mark. Concentrated surface runoff may occur within an

271 See, SAB review of the proposed rule, supra note 89, at 3.

272 Definition of WOTUS , 79 Fed. Reg. at 22219.

273 EPA Draft Connectivity Report, supra note 22, at A

- 15.

274 See, SAB review of the proposed rule, supra note 89, at 3.

275 Definition of WOTUS , 79 Fed. Reg. at 22219

. 276 Id . at 22218

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

288 erosional feature, but without creating the permanent physical characteristics associated with bed and banks and ordinary high wate r mark, the feature will not be jurisdictional. See summary response 7.3.7 above.

Western Resource Advocates (Doc. #16460)

7.446 Gullies

The agencies propose that “gullies” not be WOTUS. 277 While the preamble discusses what does and does not constitute a gully, 278 the rule itself provides no definition of a gully. This lack of detail is insufficient as the basis for categorically excluding these waterways from jurisdiction.

For almost three decades, the Tenth Circuit Court of Appeals, whose territory covers a large chunk of the arid and semi

- arid southwest (Colorado, New Mexico and Utah) has found gullies

– or arroyos, in the language of southwestern geography

– jurisdictional. The cases involve waterways connected via groundwater to a tributary of a TNW, but

also f lowing on the surface after storm events. 279 In Quivira , a mining company challenged case its 402 permit, including on jurisdictional grounds because its pollutant discharges were to an arroyo, albeit one whose waters, sometimes on the surface and

sometimes via groundwater, found their way to more clearly recognizable jurisdictional waters, themselves tributaries to TNW. 280

Although neither the Arroyo del Puerto nor the San Mateo Creek is navigable

- in

fact, surface flow occasionally occurs, at times of heavy ra infall, providing a surface connection with navigable waters independent of the underground flow. . . . [T]he record supports the finding that both the Arroyo del Puerto and San Mateo Creek flow for a period after the time of discharge of pollutants into t he waters [and] the flow continues regularly through underground aquifers fed by the surface flow of the San Mateo Creek and Arroyo del Puerto into navigable

- in

- fact

streams. 281

The Court stated, repeatedly, that the Clean Water Act was based on the commerce clause and that Congress intended its scope to go far beyond traditionally navigable waters, “it was the clear intent of Congress to regulate waters of the United States to the fullest extent possible under the commerce clause.” 282

As the agencies concede i n the preamble to the proposed rule, many “gullies” or “arroyos” may in fact be either ephemeral streams, or indirectly connected to waters of the US, e.g., via groundwater, as was the case in Quivira and these other Tenth Circuit cases. Thus, it is critic al that the proposed blanket exclusion of “gullies” be narrowly crafted, perhaps by adding a qualifier, so that the rule would exclude only “non

- tributary gullies.” (p. 25

- 26)

277 79 Fed. Reg. 22263 (proposed 33 C.F.R. § 328.3(b)(5)(vii)).

278 79 Fed. Reg. 22218

- 19.

279 Quivira , 765 F.2d at 126.

280 Id . at 127

- 28.

281 Id . at 129.

282 Id . at 130.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

289 Agency Response: The final rule states that some ephemeral streams are colloquially called “gulli es” or “swales” even when they exhibit a bed and banks and an ordinary high water mark. Regardless of the name they are given locally, waters that meet the definition of tributary or wetland are not excluded erosional features. Given this variability in te rminology, and the focus on physical characteristics in the definition of tributary, the agencies did not think it necessary to define terms like “gully” or “rill” in the final rule. See summary response 7.3.7 above.

Earthjustice (Doc. # 14564 )

7.447 EPA also c ategorically excludes gullies, rills, and non

- wetland swales. This is far too broad as noted by some members of the SAB. Gullies, rills, and swales are in many instances features on the landscape that carry significant flows and amounts of pollutants

to do wnstream waters. Instead of categorically excluding these features and waters, it is more scientifically supportable to examine their role relative to connections to waters of the U.S. under the “other waters” category of subsection (s) and determine wheth er they should be protected on a case

- bycase basis. See Members Comments, Kolm at 50; Sullivan at 89 (“to exclude these and other variable source areas (e.g., swales) from jurisdiction is not fully supported by the available science as they can be importan t components of integrated aquatic systems with measurable impacts to downstream systems. . .the agencies should maintain the right to classify specific gullies, rills, and swales (either separately or in the aggregate) as jurisdictional when warranted.”)

Again, categorical exclusions are not warranted under the law or science and Earthjustice urges EPA to revise the proposed rule to ensure that waters that should be protected, at

least on a case

- by

- case basis, are not automatically excluded from Clean Wat er Act protection. (p. 13)

Agency Response: See summary response 7.3.7 above , compendium 8 regarding

tributaries and TSD section 7.A.2

Columbia Riverkeeper (Doc. #15210)

7.448 Ditches, gullies, rills, non

- wetland swales, and “artificially” irrigated areas should not be categoric ally exempt from the Clean Water Act. Discharges of pollution or fill into these areas can have significant biological and hydrological consequences on site and elsewhere in the watershed, as explained by members of the Scientific Advisory Board. (p. 2)

Agency Response: Se e summary response 7.3.7 above and TSD section 7.A.2.

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

7.449 Paragraph (b)(5)(iii) exempts gullies and rills and non

‐ wetlands swales, however, the preamble on page 22208 states that a "c onfined surface connection consist of permanent, intermittent or ephemeral flow paths, such as (but not limited to) swales, gullies, rills, and ditches.” This narrative contradicts the proposed rule exemption for gullies and rills and NAFSMA requests that EPA reaffirm the exemption by clarifying and correcting the contradiction. (p. 3)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

290 Agency Response: Gullies, rills, and swales that do not meet the definition of tributary are not jurisdictional , regardless of their status as a connection to downstream waters. See summary response 7.3.7 above.

Environmental Technology Consultants (Doc. #2597)

7.450 What is the difference between a gully or rill and a seasonal stream? The new definitions would appear to find a significant nexus between navigable waters and the seasonal

streams tha t feed them, however gullies and rills and non

- wetland swales appear to be excluded from the definition. We need field actionable definitions for these terms. (p. 1)

Agency Response: See summary response 7.3.7 above and TSD section 7.A.2.

Wetland Science Applications, Inc . (Doc. #4958)

7.451 I agree with placing the exceptions at 33 CFR 328(b) into the rule with the following exceptions:

... 5. Regarding (5)(vii). I fully agree that gullies, rills and non

- wetland swales should not be regulated. However, it is inappropriate and d eceitful to say that such features are not jurisdictional and then to reach through such features and claim jurisdiction over upslope features because a theoretical molecule of water might pass thru them on its way downslope. When jurisdiction ends, it sho uld flat

- out end, just like it says in 33 CFR

328.4

. ... (p. 2)

Agency Response: See summary response 7.3.7 above and TSD sections 7.A.2,

8.A. and 9.B.

Kirk Mantay, PWS, Wetland Ecologist (Doc. #15192.1)

7.452 Regulation of Non

- Agricultural Ephemeral Ditches and Gullies

Comment : EPA and USACE staff continue to programmatically regulate actively eroding ephemeral channels that exist due to historical and/or ongoing erosive flows during and immediately after storms. While EPA correctly notes that they cannot and do not require mitig ation for activities (like voluntary stream restoration) that occur in these ephemeral gullies, the federal agencies require full permit coordination for the sake of "documentation," a federal action that requires the project proponent to spend up to $200, 000 on permit drawings, legal papers, and even public hearings for a voluntary habitat project that may only cost $100,000 to construct. Voluntary habitat projects that take weeks to construct routinely take a year to permit impacts to ephemeral waters,

wh ich legally speaking, are not Waters of the US.

My observation has been that the federal agencies administer this policy to encourage permit applicants to withdraw their proposal to enter any ephemeral waterway for their project. Federal cases are currentl y underway challenging EPA (notably, Foster vs. EPA) on their ability to legally regulate activities in dry, eroding gullies. It is likely that the plaintiff, a land developer, will win the case, in which EPA fined him for filling a landscape feature that SCOTUS has thrice instructed EPA not to regulate. Other moreClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

291 reasonable provisions of CWA are likely to also be stricken during that litigation. As a wetland ecologist and a staunch conservationist, I do not view this as a favorable outcome, and a very dan gerous precedent for future de

- regulation of more valuable

natural resources that must be conserved.

Recommendation : Strike the portion of the New Rule dealing with ephemeral gullies that are actively eroding. Replace it with language that requires, as par t of any grading project's federal water quality certification, that the eroding ephemeral gully must be restored to a stable and functional waterway or "stable configuration" that has measurable habitat benefits and high stability under storm flows. Speci fically, make provisions in regulatory language that an individual Section 404 permit (IP) will never be necessary to conduct that activity when the primary goal is stream restoration or floodplain reconnection, and when the net benefits to Waters of the U S can be accurately documented and monitored. (p. 3)

Agency Response: The requirements of section 404 permits are outside the scope of this rulemaking. See summary response 8.1.1 for discussion of historic and final rule coverage of ephemeral streams and summary response 7 .3.7 above for discussion of gullies.

Robert J. Goldstein & Associates (Doc. #16577)

7.453 6) Gullies, rills, non

- wetland swales : Many of the “gullies” I see in urban and agricultural settings are (or were) natural headwater streams, ephemeral or intermittent. A stream that has become a “gully” due to land management activities that did not provide adequate stormwater management should not be excluded. (p. 2)

Agency Response: Intermittent and ephemeral streams that dramatically incise are often called gullies but retain bed and banks and an OHWM, retaining their status as tributaries under the final rule. See summary response 7.3.7 above for further discussion of gullies.

7.4. S UGGESTED N EW E XCLUSIONS /L ANGUAGE BY C OMMENTERS

Summary Response

Introduction

The agencies received a var iety of comments requesting new or additional exclusions from jurisdiction. As outlined below, the agencies have adopted a number of these suggestions in the final rule. The agencies also maintained existing exclusions already found in regulation and

ado pted some existing practices into regulation as exclusions for the first time. A number of these exclusions were presented in the proposed rule and revised in the final rule to increase clarity and consistency, in part based on the comments received.

Und er paragraph (b) of the rule, the agencies identify a variety of waters and features that are not “waters of the United States.” Prior converted cropland and waste treatment systems have been excluded from this definition since 1992 and 1979, respectively, and they remain substantivelyClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

292 and operationally unchanged. Comments and the agencies’ responses on these exclusions are discussed above in this Compendium.

The agencies also proposed to add a number of exclusions that are adopted (in some cases with

modi fications) in the final rule.

The agencies added exclusions in the final rule for all waters and features identified as generally exempt in preamble language from Federal Register notices by the Corps on November 13, 1986, and by EPA on June 6, 1988. This is the first time these exclusions have been established by rule. Note that, under prior preamble language, the agencies could determine that a particular feature generally considered non

- jurisdictional was a “water of the United States.” The agencies

do not retain that authority for features excluded under the rule. Comments and the agencies’ responses on these exclusions are discussed above in this Compendium.

The agencies for the first time also establish by rule that certain ditches are excluded fro m jurisdiction. Comments and the agencies’ responses on these exclusions are discussed in a separate Compendium on Ditches.

The agencies also add exclusions for groundwater and erosional features. Comments and the agencies’ responses on these exclusions are discussed above in this Compendium.

A number of comments were made that suggested the addition of new exclusions, some of which were identified in public comments as possibly being found jurisdictional under proposed rule language where this was not t he agencies’ intent.

Adopted exclusions are reflective of current agencies’ practice, and their inclusion in the rule furthers the agencies’ goal of providing greater clarity over what waters are and are not protected under the CWA. Importantly, under th e rule all waters and features identified in paragraph (b) as excluded will not be “waters of the United States,” even if they otherwise fall within one of the categories in paragraphs (a)(4) through (a)(8). The proposed rule referenced paragraphs (a)(1) through (a)(8), but the agencies did not intend to exclude any traditional navigable waters, for example, and the revision clarifies that.

The exclusions reflect the agencies’ long

- standing practice and technical judgment that certain

waters and features are not subject to the CWA. The exclusions are also guided by Supreme Court cases. The significant nexus standard arises from the case law and is used to interpret the terms of the CWA. Thus, a significant nexus determination is not a purely scientific inquiry, but rather is a determination by the agencies in light of the statutory language, the statute’s goals, objectives and policies, the case law, the relevant science, and the agencies’ technical expertise and experience. The plurality opinion in Rap anos also noted that there were certain features that were not primarily the focus of the CWA. See 547 U.S. at 734. In this section of the proposed rule, the agencies are drawing lines and concluding that certain waters and features are not subject to t he jurisdiction of the Clean Water Act. The Supreme Court has recognized that clarifying the lines of jurisdiction is a difficult task: “Our common experience tells us that this is often no easy task: the transition from water to solid ground is not neces sarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

293 swamps, bogs

— in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on thi s continuum to find the limit of ‘waters’ is far from

obvious.” Riverside Bayview at 132

- 33.

The exclusions are an important aspect of the agencies’ policy goal of providing clarity and certainty. Just as the categorical assertions of jurisdiction over tributaries and adjacent waters, as defined, simplify the jurisdiction issue, the categorically exclusions will likewise simplify the process, and they reflect the agencies’ determinations of the lines of jurisdiction based on science, the case law, and th e agencies’ experience and expertise. The agencies stated in the proposed rule that the exclusions were guided by decisions of the Supreme Court as well. The agencies in the proposed rule sought to provide a “full description” of the waters that will not be

“waters of the United States.” 79 FR at 22218.

It is important to note that while the waters listed in the exclusions are never “waters of the United States,” they can serve as a hydrologic connection that the agencies would consider under

a case

- specific significant nexus under paragraphs (a)(7) and (a)(8). For example, a wetland may be directly hydrologically connected to a covered tributary via flow through an excluded non

wetland swale. While the swale itself will always be excluded from jurisdiction, the connection of the wetland to the tributary is relevant for determining whether the wetland has a significant nexus to downstream traditional navigable waters, interstate waters, or the territorial seas. In addition, these geographic fea tures may function as “point sources” under CWA section 502(14), such that discharges of pollutants to waters through these features would be subject to other CWA regulations (e.g., CWA section 402).

Disposition of Requested New Exclusions

The final rule includes new exclusions for stormwater control features constructed to convey, treat, or store stormwater that are created in dry land, as well as for wastewater recycling structures constructed in dry land. These exclusions were the subject of the major ity of comments for new exclusions or clarification of provisions of proposed exclusions.

The new exclusion in paragraph (b)(6) is for stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. In response to the agencies’ proposal, commenters indicated additional clarity was needed. This exclusion responds to numerous comments that raised concerns that the proposed rule would adversely affect municipalities’ abilities to operate and maintain their stormwat er systems, and also to address confusion about the state of practice regarding jurisdiction of these features at the time the rule was proposed. Comments and the agencies’ responses on the new stormwater control features exclusion are

discussed below in t his Compendium, which includes a summary discussion on the substantive provisions, issues, and comments raised, as well as individual responses to comments that refer to that discussion and add additional tailored information as appropriate.

The new exclu sion in paragraph (b)(7) covers wastewater recycling structures constructed in dry land. As with the stormwater provisions, in response to the agencies’ proposal, commenters indicated additional clarity was needed. This new exclusion clarifies the agencies ’ intent that such waters and water features used for water reuse and recycling are not jurisdictional whenClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

294 constructed in dry land. This exclusion responds to the many comments that raised concerns that the proposed rule would adversely affect the ability of public and other agencies to pursue constructed detention and retention basins created in dry land used for wastewater recycling, as well as groundwater recharge basins and percolation ponds and distributary structures built for wastewater recycling. T he agencies recognize the importance of water reuse and recycling, and encourage water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s waters under the CWA. Comments and the

agenc ies’ responses on the new wastewater recycling structures exclusion are discussed below in this Compendium, which includes individual responses to comments with tailored information as appropriate.

The agencies also received other suggestions for new excl usions that were not adopted in the final rule. These suggested exclusions sought to add general categories (e.g., any ponds used for some commercial purpose) or more explicitly enumerate a specific use. The agencies determined that it was not necessary t o add certain requested exclusions for one or more reasons, including: (1) the requested exclusion was too broadly characterized as to have the effect of excluding waters that the agencies have determined should be covered as “waters of the U.S.,” (2) the requested exclusion was so site

- specific or activity

- based as to lack illustrative value, or (3) the requested exclusion was likely covered by another exclusion in the final rule.

With respect to requested exclusions that are too broad, the agencies’ soug ht to avoid adding exclusions that were so broadly worded they would introduce confusion and potentially exclude

waters that the agencies have consistently covered as “waters of the United States” . Such an approach

— as with, for example, “all waters used f or a commercial purpose”

— would have the effect of not providing necessary CWA coverage for waters that have been historically protected

, and would not accomplish the agencies’ goal of providing bright line distinctions of what waters

are and are not covere d under the CWA.

A number of commenters described specific types of activities (not waters), such as the re

mining of legacy coal ash stockpiles, where the activity may or may not involve jurisdictional

waters. This rule is a definitional rule defining th e scope of “waters of the United States.” It does not address implementation of CWA programs nor how various activities are regulated under

them.

Many comments requested exclusions for specific industrial features that are linked with the management of stormwater run

- off. In such circumstances, the agencies determined that if the structures associated with stormwater management meet the provisions of the new stormwater exclusion in the final rule, those structures are excluded, regardless of the specific industry that may be served by those structures.

A key common feature of most of the exclusions in the final rule is that the structure or feature is constructed in dry land. In many circumstances, there may be opportunities to convert or impact

waters for similar structures or features, and such actions have impacts that the agencies determine should be evaluated under the provisions of the CWA. When such features are constructed in dry land, however, their effects on waters are generally far less, and only if there are discharges to waters of the U.S. from such features is evaluation under CWA authoritiesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

2 95 necessary. In addition, it is important to note that the agencies view the lists of excluded waters under the stormwater and artificial lakes and po nds exclusions as illustrative and not comprehensive. As a result, the agencies did determine that modification to the artificial lakes and ponds exclusion, for example, to add log cleaning ponds constructed in uplands, was appropriate.

Comments and the agencies’ responses on such requested additional new exclusions are discussed below in this Compendium, which includes individual responses to comments with tailored information as appropriate. Questions beyond the scope of rulemaking regarding the applic ability of exclusions may be directed to the agencies’ relevant field staff.

Specific Comments

Waters of the United States Coalition (Doc. #14589)

7.454 1. The plain text of the Clean Water Act precludes treating water supply, waste treatment, and flood control channels as waters of the United States.

The Clean Water Act is based on a definition of the term “point source” that includes ditches and other conveyances that are part of the nation’s water supply, waste treatment, transportation and flood control syste ms. If the Proposed Rule is adopted without revision, it will conflict with the plain text of the Clean Water Act which regulates these sources at the point of discharge into the waters of the United States.

The Clean Water Act defines the term “point source” as the following:

any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrat ed animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff. (See § 1 22.3). 283

EPA has adopted similar definitions for the terms “MS4” and “outfall” to allow for regulation of the system before discharges to waters of the United States occur:

(8) Municipal separate storm sewer means a conveyance or system of conveyances (incl uding roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- made channels, or storm drains):

(i) Owned or operated by a State, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity,

o r an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the CWA that discharges to waters of the United States;

283 33 U.S.C. § 1631 (14); 40 C.F.R. 122.2.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

296 (ii) Designed or used for collecting or conveying storm water;

(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned Treatment Works (POTW) as

defined at 40 CFR 122.2.

(9) Outfall means a point source as defined by 40 CFR 122.2 at the point where a municipal separate storm sewer discharges to w aters of the United States and does not include open conveyances connecting two municipal separate storm sewers, or pipes, tunnels or other conveyances which connect segments of the same stream or other waters of the United States and are used to convey wa ters of the

United States. 284

Aqueducts, water supply canals, storm drains, agricultural drains, and other manmade conveyances that were never traditional navigable waters fit squarely within the above listed definitions. They cannot be both waters of the Un ited States and a point source. The structure of the Clean Water Act prevents it. (p. 26

- 27)

Agency Response: With respect to the jurisdictional status of storm sewer and

stormwater control features as waters of the U.S. , see summary response at 7.4.4.

below . Also see the T echnical S upport D ocument at I.C., which explains EPA’s legal rationale for its position that point sources and waters of the U.S. are not mutually exclusive terms.

Peltzer & Richardson, LC (Doc. #16360)

7.455 The proposed rule should exclude groundwater recha rge basins and stormwater management facilities, together with their infrastructure, because it places them at

risk.

The Tule and Kaweah Commenters use surface infiltration as a management tool to prevent flooding, store excess water for future use, replenish groundwater supplies, or abate land subsidence. The most economical manner of groundwater recharge is to construct a basin in alluvial material immediately adjacent to a stream, almost all of which are intermittent or ephemeral within the boundar ies of the Tule and Kaweah Commenters. This allows water to rapidly infiltrate through the basin to the unsaturated zone where it is added to the aquifer below. In addition to the basins, flood control levies, swales and ditches are used to capture and con vey stormwater to protect public safety. In addition to sometimes being adjacent to “waters of the United States”, all of these features may contain hydric soil, wetland vegetation, and have an ordinary high water mark. Currently, these facilities have not been deemed to have a significant nexus with traditional navigable waters. Under the proposed rule these facilities would meet the definition of “waters of United States”. Accordingly, the Tule and Kaweah Commenters request that groundwater recharge facil ities and stormwater retention basins, together with all related infrastructure (including construction, operations, and maintenance), be explicitly excluded from the proposed definition of “waters of the United States”. (p. 6

- 7)

284 40 C.F.R. 122.26(b)(8)

- (9).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

297 Agency Response: With respect to the jurisd ictional status of stormwater control

features as waters of the U.S., please see summary response at 7.4.4. Groundwater recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land: detention and reten tion basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling

. ” Please note that the final rule does not change the applicab ility of the Underground Injection Control program for Class V injection wells or subsurface fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part 144.

Coachella Valley Water District (Doc. #16926)

7.456 The proposed rule states current ly applicable CWA exemptions for farm ing and ranching will continue to preclude permitting requirements. However, the proposed rule also

includes ditches and man

- made conveyances as jurisdictional waters, many of which are

used for farm ing and ranching. In addition, these ditches and man

- made conveyances could be considered tributary under the proposed rule. The Coachella Canal is a man

made, concrete conveyance that carries Colorado River water 123 miles to supply CVWD's agriculture irrigation system. Ditc hes, manmade canals and water conveyances should be spe cifically excluded from the defin ition of Waters of the U.S.

CVWD's 1,000 acres of groundwater replenishment and 330 acres of stormwater retention basins, 73 miles of flood control dikes, and over 100 miles of swales and ditches are currently not jurisdictional, but under the proposed rule it is our understanding

that these facilities meet the definition of Waters of the U.S. These facilities are critical to life in the desert because they capture and infiltrate water into the drinking water aquifer. In addition to capturing and infiltrating storm flows, CVWD's flood control facilities protect property and public safety. Groundwater replenishment and flood control

facilities should be excluded from the definition of Waters of the U.S. (p. 2)

Agency Response: With respect to stormwater control features, please see summary response at 7.4.4. Groundwater recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land:

det ention and retention basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling

. ” Please note that the final rule does not chang e the applicability of the Underground Injection Control program for Class V injection wells or subsurface fluid distribution systems under the Safe Drinking

Water Act. See 40 CFR Part 144.

7.4.1. Stormwater Ponds not Adjacent

Summary Response

Please see the summary response at 7.4.4, which addresses the jurisdictional status of stormwater control features, including stormwater ponds, as waters of the U.S.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

298 Specific Comments

City of Glendale, Arizona (Doc. #15054)

7.457 Stormwater Retention Basins

The City of Glendale requires on

- site retention of stormwater from a 100

- year, 2

- hour storm event. These retention basins allow sediments to settle out before discharge to the municipal separate storm sewer system (MS4). In many cases, retention basins manage

stormwater runoff near its source which is consistent with EPA's low

- impact development approach.

Artificial lakes and ponds used for settling basins are excluded in the proposed rule. However, since stormwater retention basins do not hold water for exten ded periods of time as a lake or pond would, it is unclear whether stormwater retention basins would qualify for this exclusion. Stormwater retention basins should be specifically excluded

from the definition of "waters of the United States."

Without a spe cific exclusion for stormwater retention basins, additional permits would be required in order to perform routine maintenance (discing/blading the basins and removal of sediment and vegetation to improve infiltration). The City of Glendale's limited

financ ial resources would be spent on permits without additional benefit to the environment. (p. 3)

Agency Response: The agencies have identified an exclusion for stormwater

control features created in dry land

-- please see summary response at 7.4.4.

Boulder County and the City of Boulder, Colorado (Doc. #15495)

7.458 4) Constructed Wetlands. There is language in the Proposed Rule that would appear to make a large number of constructed stormwater ponds and constructed wetlands fall under the "tributary" definition. Tributary would be defined to include wetlands and other

waters that do not hav e ordinary high water marks, provided that the water feature contributes flow (directly or indirectly) to a traditional navigable water. Features that would otherwise meet the definition of tributary do not lose that status if, for any length,

there are na tural or manmade breaks, provided that there is an ordinary high water mark upstream of the break. It seems inappropriate and undesirable to have a large number of constructed stormwater ponds and constructed wetlands fall under the "tributary"

definition and be considered WOTUS.

Recommendation: Boulder County and the City of Boulder request that the Proposed Rule be clarified and/or that there be a categorical exclusion for most types of constructed stormwater ponds and constructed wetlands. (p. 4)

Agency Response: The age ncies have identified an exclusion for stormwater

control features created in dry land

-- please see summary response at 7.4.4.

County of Los Angeles and Los Angeles County Flood Control District, California (Doc. #15620)

7.459 2. Detention BasinsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

299 Similar to grou ndwater infiltration basins, detention basins serve a specific function. The LACFCD owns and operates detention basins that provide a critical flood control function of preventing potential flooding by temporarily storing high flows and then releasing thos e flows when the flood threat has ended. In effect, these basins act as “surge protectors” during high flow events. See Attachment B for a photo of a typical detention basin. Detention basins are usually located along storm drain systems, are restricted fr om public access, and are currently not considered WOTUS. However, under the Proposed Rule, detention basins potentially could be designated as “tributaries” to WOTUS or impoundments, even though, like the infiltration basins, they serve a specific and cru cial function. The Proposed Rule should be revised to clearly exclude detention basins in order to avoid unnecessary and potentially serious disruptions to flood risk management created by the need to treat such isolated, non

- public features, as jurisdicti onal waters.

Given the critical functions of groundwater infiltration basins and detention basins and the need for clarity as to nature of WOTUS, any final WOTUS rule should include a specific exclusion for these types of facilities. The County and LACFCD propose that the following underlined language be added to provision (b)(5)(ii) in the Proposed Rule:

Amendment to Provision (b)(5)(ii)

“(ii) Artificial lakes or, ponds, or basins created by excavating and/or diking and used exclusively for such purposes a s stock watering, irrigation, settling basins, or rice growing, groundwater recharge, or detention of stormwater runoff for flood protection;” (p. 7

- 8)

Agency Response: The agencies have identified an exclusion for stormwater control features created in dry land

-- please s ee summary response at 7.4.4

. Groundwater recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land: detention and retention basins built for wastewater recycling, groundwater recharge basins, and pe rcolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling” or under the stormwater control feature exclusion at (b)(6), depending on the source of water. In effect, both have the same result, i.e., th e infiltration basin is not a jurisdictional water as long as it was built in dry land. Please note that the final rule does not change the applicability of the Underground Injection Control program for Class V injection wells or subsurface fluid

distrib ution systems under the Safe Drinking Water Act. See 40 CFR Part 144.

City of Pompano Beach, Florida (Doc. #16438)

7.460 Reclaimed Water and Stormwater Storage Ponds

The proposed change in the WOTUS definition includes the existing exemption for

"waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act." Storage ponds for reclaimed water and water reuse that were not constructed to meet treatment requirements, but rather for water resource

ut ilization, are not clearly excluded under the current language. The language needs to be clarified to include other purposes besides treatment in the exclusion. Our City has a Reuse Water Facility and system without a Wastewater Treatment Plant. Therefore, all our uses are for water supply and water resource sustainability, and not treatment. (p. 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

300 Agency Response: The agencies have identified an exclusion for stormwater control features created in dry land

-- please see summary response at 7.4 .4. Water

reuse facilities are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land: detention and retention basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater recycling, and water dis tributary structures built for wastewater recycling.” In effect, both have the same result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in dry land.

Tennessee Department of Transportation (Doc. # 16470)

7.461 Jurisdictional Status of Stormwater Management Systems The proposed rule would identify as non

- jurisdictional by rule "[w]aste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act." (79 Fed. Reg. 22263). The preamble does not contain any explanation of this exclusion, so it is not clear how this exclusion would apply to stormwater management systems that are constructed as part of transportation facilities to meet requi rements of the Clean Water A ct.

Under Section 402 of the Clean Water Act, States are required to obtain National Pollutant Discharge Elimination System (NPDES) permits or equivalent permits under State laws, where responsibility for that permitting program has been delegated to State s. In Tennessee, the permitting requirements increasingly call for natural methods of stormwater management, in which wetlands are constructed specifically to receive and

treat stormwater run

- off from roads. The construction of this "green infrastructure" has important ecological benefits and has been encouraged by federal a nd state regulatory agencies.

One of the potential impediments to developing green infrastructure is the concern that

natural features created to receive stormwater run

- off could themse lves be deemed jurisdictional waters. If a natural feature that is constructed to receive and treat

stormwater run

- off is itself treated as a jurisdictional water, TDOT would be in the paradoxical position of needing to obtain Section 404 permits to discha rge stormwater into facilities constructed to satisfy stormwater permit requirements under Secti on 402 of

the Clean Water Act.

TDOT suggests that the final rule (or guidance issued together with the final rule) should clarify the circumstances under which the exclusion for "[w]aste treatment systems, including treatment ponds or lagoons" applies to stormwater treatment systems constructed as part of transportation facilities. More generally, the USACE and EPA should work cooperatively with State DOTs and o ther transportation agencies to ensure that concerns about creating jurisdictional waters do not discourage the adoption of natural methods of stormwater management. (p. 6

- 7)

Agency Response: The agencies have identified an exclusion for stormwater control features, includ ing green infrastructure, created in dry land

-- please see summary response at 7.4.4. See summary response at 7.1.with respect to the waste treatment system exclusion.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

301 Rubber Manufacturers Association (Doc. #15419)

7.462 II. RMA recommends that EPA expressly exe mpt permitted stormwater ponds

In the proposed rule, there are three exemptions that could potentially apply to RMA members’ stormwater ponds. Section 122.2(b)(3) exempts “ditches that are excavated wholly in uplands, drain only in uplands, and have less t han perennial flow.” 76 Fed. Reg. 22268. Section 122.2(b)(5)(ii) exempts artificial ponds “created by excavating dry land ... and used exclusively ... as settling basins.” Id . Additionally, section 122.2(b)(4) exempts “ditches that do not contribute flow” to i nterstate waters and the territorial seas.

Id . Yet, the key terms “uplands” and “settling basins” are not defined, therefore it is difficult to determine if RMA members’ ponds fall under the §§ 122.2(b)(3) and (b)(5)(ii) exclusions. As proposed, the § 122. 2(b)(4) exclusion is too narrow to exclude RMA member stormwater ponds because these ponds may contribute to flow, albeit in an attenuated way, to interstate waters. Since it is not clear whether RMA member stormwater ponds fall under any of these three ex emptions, RMA recommends that EPA clarify these exemptions to exclude permitted stormwater ponds.

RMA members’ stormwater retention ponds and detention ponds comply with NPDES permits. To meet numeric and non

- numeric limits in NPDES permits, RMA members us e control measures such as baffles, weirs, and skimmers to remove solids, oils, and other contaminants. RMA members monitor pH levels, remove chlorine, and control biological oxygen demand. These stormwater ponds are also typically lined with an impermeabl e layer of clay or plastic to prevent untreated water from leaching into other waters. Stormwater ponds play a vital role treating stormwater, preventing erosion, controlling flooding, and collecting water used to fight fires at RMA member facilities.

Beca use these stormwater ponds are permitted, RMA recommends that EPA explicitly exempt stormwater ponds from the rule. If these ponds are considered waters of the U.S., there would be a significant regulatory burden with no additional environmental benefit

be cause NPDES permits already require RMA members to control floating solids, settled solids, suspended solids, oil sheen, and other indicators of stormwater pollution. (p. 2)

Agency Response: The agencies have identified an exclusion for stormwater

control features created in dry land

-- please see summary response at 7.4.4.

Indiana Manufacturers Association (Doc. #15704)

7.463 ... the proposal does not make clear what is intended to be included within the phrase
waste treatment system...

... It should be clear that a waste treatment sys tem should include conveyance structures flowing to a treatment facility including retention basins for stormwater... (p. 2)

Agency Response: The agencies have identified an exclusion for stormwater control features created in dry land

-- please see summary response at 7.4.4. With respect to stormwater control features, please see summary response at 7.4.4.

National Association of Home Builders (Doc. #19540)

7.464 iii. Stormwater Treatment Ponds and Other Stormwater Management Facilities are

not “Waters of the United States.”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

302 Constr uction site operators must secure an NPDES stormwater permit (general or individual) before discharging stormwater to a surface water of the United States or an

MS4. 285 The most significant component of NPDES construction stormwater permits is

the Storm Wate r Pollution Prevention Plan (SWPPP), which identifies sediment and erosion control measures necessary to protect water quality. Historically, the preferred method of treating stormwater under a SWPPP has been through the use of on

- site

retention or detenti on ponds, infiltration trenches, or other conveyance systems. These

man

- made ponds and trenches are designed to slow concentrated runoff and trap sediment to protect receiving streams, lakes, and other downstream waterbodies. Without an explicit exclusion, however, stormwater treatment ponds and conveyances could be deemed “waters of the United States” because they meet the Agencies’ overbroad “tributary,” “adjacent waters,” and/or “other waters” definitions.

Indeed, without a stormwater exclusion, the cour ts have on several occasions ruled that

these features

– although they are designed specifically to treat pollutants and protect

downstream waters

– are “waters of the United States.” In Northern California River Watch v. City of Healdsburg , 2004 WL 201502 (N.D.Cal.), the district court rejected a claim that a pond formed from an abandoned gravel mining pit was a waste treatment system exempt from coverage under the CWA. Although the pond served as a percolating

filter for wastewater received from the defen dant’s waste treatment facility, the pond “itself was not ‘designed’ to meet the requirements of the Clean Water Act or ‘designed’ to be part of the waste

- treatment system.” 286 Also noteworthy was the fact that the pond preexisted both the CWA and constructi on o f the waste treatment plant. 287

On appeal, the Ninth Circuit affirmed, holding that the pond fell outside the exemption

“because it is neither a self

- contained pond nor is it incorporated in an NPDES permit as part of a treatment system.” 288 The Court added that the exception “was meant to avoid requiring dischargers to meet effluent discharge standards for discharges into their own

cl osed system treatment ponds.” 289 Stormwater ponds are constructed with an outflow and are not closed systems; t hey contribute flow to downstream waters.

The case of West Virginia Coal Ass’n v. Reilly , 728 F.Supp. 1276 (S.D.W.Va.1989), addressed whether sedimentation ponds constructed in streams were “waste treatment systems” excluded from the definition of “waters of the United States.” Plaintiffs had challenged EPA’s decision to overrule state approval of several NPDES permits authorizing in

- stream sedimentation ponds.

285 33 U.S.C. §§ 1311

- 1342.

286 2004 WL 201502 at 11.

287 Id.

288 Northern California River Watch v. City of Healdsburg , 496 F.3d 993, 1002 (9th Cir. 2007). See also California Sportfishing Protection Alliance v. California Annonia Company , 2007 WL 273847, at 6 (E.D.Cal) (holding that the “key question” for the court in determining whether stormwater p ooling in a manmade detention pond qualifies for the waste treatment system exception was whether the pond is a “treatment system covered by a valid NPDES permit”).

289 Id. at 1032 (citing 45 Fed. Reg. 48,620 [July 21, 1980]).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

303 EPA claimed that the ponds were inconsistent with the CWA and state water quality

standards. 290 The court deferred to EPA’s interpretation of the CWA and position that “the ‘waters of the United States’ over which EPA has regulatory control cannot be removed from the purview of the Clean Water Act merely by impounding those

waters.” 291

A general purpose of the “waste treatment system” exclusion is to encourage the development of innovative waste treatment technologies and further the goals of the CWA. Absent the exclusion, construction site operators would be punished. In addition to the required CWA Sect ion 402 NPDES permit covering construction

- related stormwater discharges exiting a site, construction site operators would be forced to secure a Section 404 dredged or fill material permit for discharges into their own stormwater control systems. Furthermo re, stormwater impoundments might be interpreted as artificially created “waters of the United States,” imposing additional regulatory burdens on construction site operators and surrounding landowners. This perverse outcome is

inconsistent with the common sense interpretation of the Agencies “waste treatment systems” exclusion.

Additionally, stormwater treatment ponds could be deemed to not be “waters of the United States” because they are settling basins and thereby meet exclusion (b)(5)(ii):

“The following are not ‘waters of the United States’ . . . Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins , or rice growing.” 292

Stormwater ponds and other stormwater management techniques function to slow down the flow of water from a development, parking lot, roadway, etc., by collecting the water in a basin and governing outflow to the stream network to better mimic natural stream hydrology. In the process, runoff is slowed down, and pollutants, including sediment and sorbed nutrients (e.g., phosphorus, organic matter) and contaminants (e.g., heavy metals) that enter the pond or other treatment facility, settle out. Additionally, biota (e.g., plants, animals, microorganisms) within the stormwater ponds can account for biological uptake of excess nutrients and dissolved contaminants. EPA notes, “[w]et [stormwater] detention ponds provide both storm water quantity and quality benefits, and provide signi ficant retrofit coverage for existing development. Benefits include decreased potential for downstream flooding and stream bank erosion and improved water quality due to the removal of suspended solids, metals, and dissolved nutrients.” 293 What’s more, satur ated stormwater pond soils can enhance the reduction of nitrate, otherwise responsible for

290 West Virginia Coal Ass’n , 728 F.Supp. at 1,279.

291 Id . at 1,283. See also Ohio Valley Environmental Coalition v. U.S. Army Corps , 2007 WL 2200686, at 12 (S.D.W.Va.) (rejecting the Corps position that construction of treatment ponds in stream segments previously

classified as “waters of the United States” cause protected waters to temporarily lose that status and qualify for the “waste treatment system” exception because they assist in the discharge of pollutants).

292 79 Fed. Reg. at 22,263 (emphasis added).

293 EPA, Storm Water Technology Fact Sheet: Wet Detention Ponds. Office of Water. EPA 832

- F

- 99

- 048. (Sept. 1999) at 1, 2, available at http://water.epa.gov/scitech/wastetech/upload/2002_06_28_mtb_wetdtnpn.pdfClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

304 downstream eutrophication and algal blooms, to inert gaseous nitrogen via

denitrification. 294

According to case law and lacking an explicit exclusion, these ubiquitous treatment ponds would not meet the existing waste treatment exclusion. Similarly, because exclusion (b)(5)(ii) includes the phrase “used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing,” a stormwater pond used for any other purpose (e.g., recreation, aesthetics) may not meet the artificial lakes or ponds exclusion. At a minimum, the word “exclusively” must be removed from this exclusion for it to have any practical application.

The vast majority of stormwater s ystems used to control both the quality and quantity of stormwater discharges from construction sites form waste treatment systems and function as settling basins. These systems are specifically “designed” to be incorporated in an NPDES permit as detailed in a site

- specific SWPPP. They are man

- made, typically constructed separate and apart from existing waters of the United States, and do not

themselves create new waters of the United States.

Conversely, as “waters of the United States,” stormwater ponds wo uld be subject to all CWA programs (see Section VII. a.), and routine maintenance would require expensive and burdensome CWA permits (e.g., dredging sediment would require a Section 404 permit and application of mosquito pesticides would require a Section 402 permit). This would create regulatory headaches with no ecological benefits.

For these reasons, the Agencies must explicitly exclude stormwater systems from the definition of “waters of the United States.” (p. 112

- 114)

Agency Response: The agencies have identified an e xclusion for stormwater control features created in dry land

-- please see summary response at 7.4.4. Also see the discussion about the waste treatment system exclusion at 7.1. Please note that the Agencies’ adoption of a specific exclusion for stormwater control features built in dry land does not alter the outcomes of the cases cited by the commenter or any

other court case.

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)

7.465 Constructed Wetlands . There is language in the Proposed Rule that would appear to make a large number of constructed stormwater ponds and constructed wetlands fall under the "tributary" definition. "In addition, wetlands, lakes, and ponds are tributaries (even if they lack a bed and banks or ordinary high water mark ) if they contribute flow, either directly or through another water to a water identified in paragraphs (a)(l) through (3) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, fo r any length, there are one or more man

- made breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands at the head of or along the run of a stream, debris piles, boulder fields, or a

294 See Groffman, P.M., E.A. Holland, D.D. Myrold, G.P. Robertson, and X. Zou. 19 99. Denitrification. In: Standard soil methods for long

- term ecological research (Robertson, G.P., D.C. Coleman, C.S. Bledsoe, and P. Sollins, eds.). Oxford University Press, New York. Soil saturation creates anaerobic conditions that promote

facultative m icrobial reduction of nitrate

- N to gaseous N (NO, N2O, and N2) in a process called denitrification.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

305 stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A tributary, including wetlands, can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, lakes, ponds, impoundments, c anals, and ditches not excluded in paragraph (b)(3) or (4) of this section." (Proposed Rule at 40 CFR 230.3(u)(S)) It seems inappropriate and undesirable to have a large number of constructed stormwater ponds and constructed

wetlands fall under the "tribut ary" definition and be considered WOTUS.

Northglenn requests that the Proposed Rule clarify the rule language and/or provide a categorical exclusion for most types of constructed stormwater ponds and constructed wetlands. (p. 4)

Agency Response: The agencies have identifie d an exclusion for stormwater control features created in dry land

-- please see summary response at 7.4.4.

7.4.2. Groundwater Recharge Ponds

Summary Response

Overall, commenters expressed their desire for the Agencies to include exemptions for infiltration and gr oundwater recharge basins. Several commenters requested that recharge facilities be included in specific exclusion categories such as groundwater or artificial lakes or ponds.

Additionally, three commenters expressed concerns about any interpretation of t he rule that might include infiltration basins as waters of the U.S., particularly within the definition of "adjacent waters". Another commenter specifically requested that shallow aquifers be exempt

from the definition of waters of the U.S. One other comm enter recommended that waters in a watershed in which there is no connection to a traditional navigable water, interstate water or the

territorial seas not be included in the definition of waters of the U.S.

To address the concerns raised by many of the c ommenters and to clarify the Agencies’ intent with respect to groundwater recharge features, the Agencies developed a new exclusion for “Wastewater recycling structures created in dry land” from the definition of “waters of the U.S.” at paragraph (b)(7). The following summary describes this new exclusion and addresses the many comments related to a wastewater exclusion. Some issues raised in connection with wastewater control are also addressed in other compendiums as well, such as the Implementation

comp endium, the Legal compendium, and the Miscellaneous compendium.

Specifically, the Agencies specifically excluded constructed detention and retention basins created in dry land that are used for wastewater recycling, including groundwater recharge basins

a nd percolation ponds built for wastewater recycling. Infiltration basins are among the features covered by the exclusion. The new exclusion also covers water distributary structures that are built in dry land for water recycling. The Agencies have not considered these water distributary systems jurisdictional where they do not have surface connections back into, and contribute flow to, “waters of the United States.” The exclusion in paragraph (b)(7) codifies the long

- standingClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

306 agency practice that water reuse and recycling structures are important and beneficial in protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

As identified in Section 7.3.6. of this compendium (Groundwater, including Groundwater

Drained through Subsurface Draining Systems), the final rule continues to identify as excluded “Groundwater, including groundwater drained through subsurface drainage systems” reflecting the agencies interpretation of “waters of the United States.” This exclusion applies to all groundwater, including shallow subsurface flow and shallow aquifers as identified above

. Nothing in this rule limits or impedes any existing or future state or tribal efforts to further protect their waters. Please note that this exclusion d oes not apply when groundwater emerges on the surface and contributes baseflow to streams and spring

- fed waters. At this point, when groundwater emerges on the surface, it is surface water, and thus potentially regulated under the

Clean Water Act.

Finally , although the rule does not include an explicit exempt ion for waters in a watershed in which there is no connection to a traditional navigable water, interstate water or the territorial seas, waters can only be jurisdictional where they meet one of the ju risdictional categories listed in the rule, and these require a significant nexus to traditional navigable waters, interstate waters

or the territorial sea. In some cases where a case

- specific significant nexus is performed the absence of a connection may be a sign of the water’s function in relationship to the traditional navigable water, interstate water, or the territorial seas. These functional relationships include retention of floodwaters or pollutants that would otherwise flow downstream to the trad itional navigable water, interstate water, or the territorial seas. But in all cases, there must be a significant nexus to a traditional navigable water, interstate water, or territorial sea.

Specific Comments

Board of County Commissioners, White Pine C ounty, Nevada (Doc. #9975)

7.466 [The Rule] Claims to exclude groundwater, but includes certain waters based on a subsurface groundwater connection (p. 2)

Agency Response: See the summary response of 7.3.6 Groundwater, Including Groundwater Drained through Subsurface Drainage Sy stems.

Flood Control and Water Conservation District , Riverside County, California (Doc. #14581)

7.467 IV. NEED TO EXCLUDE BASINS USED TO RECHARGE GROUNDWATER

Riverside County, like many counties in California and the Southwest, has an extensive program of groun dwater recharge to support drinking water supplies. Central to this program are "spreading basins", basins located adjacent to flood control channels (which may be designated as WOTUS) which collect and percolate water into underground aquifers.

The need to recharge the aquifers with local stormwater, as well as recycled water, is becoming even more vital in time of drought. The infiltration basins must be rigorously maintained to ensure that they continue to support their infiltration purpose.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

307 The Distric t is very concerned about any interpretation of the rule that might include infiltration basins as WOTUS, particularly the definition of "adjacent waters". The Proposed Rule expands the scope of "adjacent" from "wetlands" to all waters. 79 Fed. Reg. 22206. "Adjacent" waters are waters which are "bordering, contiguous or neighboring", including waters "separated from other [WOTUS] by man

- made dikes or barriers, natural river berms, beach dunes and the like". 79 Fed. Reg. at 22263. Additionally, waters which are "neighboring", defined to be "waters located within the riparian area or flood plain of a[WOTUS], or waters with a shallow subsurface hydrologic connection or confirmed surface hydrologic connection to such a jurisdictional water" also meet this defini tion and would be considered WOTUS. Id. As discussed, many infiltration basins are adjacent to channels that are considered WOTUS. Basins may also be located within the floodplain of the adjacent channels. Also, the exclusion for artificial lakes or ponds in Section b(5)(ii) is limited to specified uses, which currently do not include infiltration basins. 79 Fed. Reg. at 22218. Thus, under the Proposed Rule, the infiltration basins could be classified as WOTUS (though, as noted above, the District opposes t he designation of "adjacent" waters based on a subsurface hydrologic connection).

However, as the Proposed Rule indicates, "adjacent waters" are distinguished by the fact that they "provide similar functions which have a significant nexus to [WOTUS]". 79

F ed. Reg. at 22207. Infiltration basins do not provide a similar function to the adjacent channels. The channels are designed to rapidly convey floodwaters so that they do not threaten lives and property. The infiltration basins, by contrast, are designed a nd maintained to percolate waters into groundwater, which is not a WOTUS. This characteristic distinguishes infiltration basins from other waters adjacent to a WOTUS, such as a wetland, which can influence the character of waters in the WOTUS.

The District supports language in the final rule exempting the designation of infiltration basins as WOTUS. (p. 11

- 12)

Agency Response: See summary response . Infiltration basins created in dry land that recharge groundwater are excluded

.

City of Glendale, Arizona (Doc. #15054)

7.468 Basins at Aquifer Recharge Facilities

The City of Glendale operates the West Area Aquifer Recharge Facility to store effluent produced at the West Area Water Reclamation Facility for future beneficial use. The recharge facility consists of a series of basins wh ere effluent is discharged to soak into the ground for storage. Although groundwater, including groundwater drained through subsurface drainage systems, is excluded in the proposed rule, it is unclear whether recharge facilities would qualify for this exem ption.

... Recharge facilities should be excluded from the definition of Waters of the United

States. Recharge facilities are regulated by state laws to protect groundwater quantity and quality. The Arizona Department of Water Resources requires extensive s tudies prior to permitting a recharge facility and routine monitoring and reporting of the volume of water recharged. The Arizona Department of Environmental Quality requires an AquiferClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

308 Protection Permit for the facility with permit

- specific water quality standards to be met for discharges into the recharge basins. Without a specific exclusion for recharge basins, additional permits would be required in order to perform routine maintenance (discing/blading the basins and removal of sediment and vegetation t o improve infiltration). The City of Glendale's limited financial resources would be spent on permits without additional benefit to the environment. (p. 1

- 2)

Agency Response: Basins created in dry land that recharge groundwater are

excluded. See summary response.

County o f Los Angeles and Los Angeles County Flood Control District, California (Doc. #15620)

7.469 1. Groundwater Infiltration Basins

The LACFCD owns and operates numerous groundwater infiltration basins, designed to recharge underground aquifers with stormwater, recycled water, and imported water. Each year the basins recharge an average of 290,000 acre

- feet of water, which is equivalent to the annual water needs of 2.3 million people. The basins represent a vital part of the drinking water portfolio in Los Angele s County, where many communities obtain the majority of their drinking water (in some communities as much as 80 percent) from underground aquifers. A reliable local water supply, whether recycled or from rain, is more important than ever as California cont inues to face one of the most severe droughts on record.

The construction of groundwater infiltration basins first began in the early 1930s and continued into the 1960s. Modernization and operational enhancements continue today under funding partnerships with local water supply entities and the California Department

of Water Resources. The basins

- either excavated or converted from old gravel pits

- are typically located next to engineered channels (which are considered to be WOTUS) and are separated from those channels by levees. Although located adjacent to flood control channels, the infiltration basins serve a very different function

- to percolate water into underground aquifers. Water is diverted from the flood control channel to the basins via a

hea dwaters structure and then allowed to percolate into the groundwater aquifer typically 100 to 200 feet below the ground surface. Optimal percolation capacity is achieved through regular and rigorous maintenance, which includes vegetation clearing, debris a nd sediment removal, vector control, and “ripping” of the basin floor to loosen compacted soils. Some or all of these activities potentially would require a CWA 404 permit and 401 certification if conducted in a jurisdictional waterbody. Any interference i n such maintenance (for example, due to a delay in obtaining a 404 permit or 401 certification, or resulting from the permit conditions themselves) can seriously and irreversibly degrade a basin’s percolation capacity.

The County and LACFCD are very concer ned about any interpretation of the rule that might include infiltration basins as WOTUS, particularly the definition of “adjacent waters.” The Proposed Rule expands the scope of “adjacent” from “wetlands” to all waters. 79 Fed. Reg. 22206. “Adjacent” wate rs are waters which are “bordering, contiguous or neighboring,” including waters “separated from other [WOTUS] by man

made dikes or barriers, natural river berms, beach dunes and the like.” 79 Fed. Reg. atClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

309 22263. Additionally, waters which are “neighboring ,” defined to be “waters located within the riparian area or floodplain of a [WOTUS], or waters with a shallow subsurface hydrologic connection or confirmed surface hydrologic connection to such a jurisdictional water” also meet this definition and would b e considered WOTUS. Id. As discussed, the LACFCD’s infiltration basins are adjacent to channels that are considered WOTUS. The basins may also be located within the floodplain of the adjacent channels. Also, the exclusion for artificial lakes or ponds in s ection b(5)(ii) is limited to specified uses, which currently do not include groundwater recharge. 79 Fed. Reg. at 22218. Thus, under the Proposed Rule, groundwater infiltration basins could be classified as WOTUS, even though they are not currently consid ered as such.

However, as the Proposed Rule indicates, “adjacent waters” are distinguished by the fact that they “provide similar functions which have a significant nexus to [WOTUS].” 79 Fed. Reg. at 22207. Infiltration basins do not provide a similar func tion to the adjacent channels. The destination of the water in infiltration basins is underground aquifers,

which is not a WOTUS. 295 Since the water in the infiltration basins is being rapidly percolated into underground aquifers (a process which takes appro ximately one week from entry into the basin), there is not sufficient detention time for the water to make a hydrologic connection with adjoining channels. This characteristic distinguishes infiltration basins from other waters adjacent to a WOTUS, such as a wetland, which can

influence the character of waters in the WOTUS.

Therefore, to avoid ambiguity, we request that Provision b(5)(ii) of the Proposed Rule be revised (as shown in Comment 2 below) to include an express exemption for groundwater infiltrat ion basins. (p. 6

- 7)

Agency Response: Groundwater infiltration basins created in dry land are

excluded. See summary response.

Southeast Florida Utility Council (Doc. #11879)

7.470 SEFLUC understands there is an exemption for groundwater, including groundwater drained through su bsurface drainage system. However, it is concerned shallow subsurface connections referenced in the definition of adjacent waters may be used to establish jurisdiction despite this exemption. Arguably, if the groundwater exemption was intended

to exclude a ll groundwater, including shallow aquifers, then the adjacent water definition would not specifically reference shallow subsurface hydrology connections as being included within the definition. Therefore, there must be some reconciliation of the

exclusion of all ground waters in one section of the Proposed Rule and the inclusion of shallow subsurface waters in another. Given the uncertainty with future interpretations of this exemption, SEFLUC requests the Proposed Rule specifically exempt shallow aquifers from the WOTUS definition. (p. 4)

295 In California, groundwater is a “water of the State” (California Water Code § 13050(e)) (“’Waters of the state’ means any surface water or groundwater . . . within the boundaries of the state”) and the Los Angeles Regional Water Quality Control Board has jurisdiction over groundwater basins in Los Angeles County.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

310 Agency Response: See summary response. See also the summary response of 7.3.6 Groundwater, Including Groundwater Drained through Subsurface Drainage Systems.

San Gabriel Basin Water Quality Authority, California (Doc. #17049)

7.471 WQA respectfu lly requests that groundwater recharge basins be excluded from jurisdiction under the proposed rule . We note that the proposed rule definition of "waters of the United States" now includes, "... all waters, including wetlands, adjacent to traditional naviga ble water ..." Although EPA has also listed several exceptions, we believe the definition should be modified to also allow an exception for groundwater recharge basins created specifically for the discharging, capturing and infiltrating of groundwater, stor m water and non

- storm water runoff. Such an exception would allow for the efficient discharge and reuse of water in infiltration basins without additional layers of onerous regulatory reviews

— a scenario, which WQA envisions, could apply to discharges thr oughout the San Gabriel Valley regardless of whether or not the discharges are coveted by an NPDES permit. (p. 2)

Agency Response: See summary response.

Center for Water Advocacy et al. (Doc. #15225)

7.472 The Definition of Navigable Waters Should Include Groundwater. While we a ppreciate that the Proposed Rule would restore protections to most streams, regardless of size or frequency of flow, and to all wetlands inside of floodplains, we are concerned that it does not go far enough. For example, the rule specifically excludes “gr oundwater, including groundwater drained through subsurface drainage systems” [1] from the definition of “Other Waters”. This is regardless of the fact that groundwater is often hydrologically connected to navigable waters to the same extent, if not more, i n some cases then waters which the Proposed Rule has included in the definition.

In addition, while we appreciate that, in many cases, ground water does not contain the proper nexus to with navigable waters as to be defined as “Other Waters” under the

Pro posed Rule, the Rule has built in mechanisms that resolve this issue. For example,

Under the proposed rule, these ‘other waters’ (those which do not fit within the proposed categories of waters jurisdictional by rule) would only be jurisdictional

upon a c ase

- specific determination that they have a significant nexus as defined by the proposed rule. Waters in a watershed in which there is no connection to a traditional navigable water, interstate water or the territorial seas would not be

‘waters of the Unit ed States’. [2]

This same analysis could be applied to ground water so as to eliminate ground water

when it does not fit under the definition of Other Waters but to include it when it is hydrologically connected and retains a nexus to Waters of the US. Ind eed, this same rational applies to wetlands which are included in the definition by the Proposed Rule:

[1] https://www.federalregister.gov/articles/2014/04/21 /20 14

- 07142/definition

- of

- waters

- of

- th e

- united

- statesunder

the

- clean

- water

- act#h

- 13.

[2] Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

311 “On a case

- specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, in cluding wetlands, located in the same region, have a significant nexus to a traditional navigable water, interstate

water or the territorial seas.” [3]

Finally, in many cases groundwater, clearly, falls under EPA’s/CORPS’ description of “significant nexus”:

“Significant nexus” is not itself a scientific term, The relationship that waters can have to each other and connections downstream that affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the

ter ritorial seas is not an all or nothing situation. The existence of a connection, a nexus, does not by itself establish that it is a “significant nexus.” There is a gradient in the relation of waters to each other, and this is documented in the Report. The agencies propose a case

- specific analysis in establishing jurisdiction over these “other waters” as consistent with the current science, the CWA, and the

caselaw. A case

- specific analysis allows for a determination of jurisdiction at the point on the gradi ent in the relationship that constitutes a “significant nexus.” [4]
(p. 6

- 7)

Agency Response: See also the summary response of 7.3.6 Groundwater, Including Groundwater Drained through Subsurface Drainage Systems.

7.4.3. Agricultural

Summary Response

Several commenters addressed exclusions for agriculture from the definition of “waters of the United States,” both exclusions in the proposed rule and additional exclusions commenters would recommend. Note that these comments are in addition to those received on prior converted cropl and, addressed earlier in this compendium.

Issue: Jurisdiction over discharges into farm or stock ponds, and irrigation features

Several commenters expressed concern that the rulemaking would limit or eliminate current exemptions from permit requirement s for construction of farm or stock ponds, and construction and maintenance of agricultural irrigation features, by extending jurisdiction to cover such features. Others called for farm and stock ponds, irrigation ditches, and maintenance of ditches

be id entified as beyond the scope of “waters of the United States.”

In response, the agencies note the proposed and final rules make no change to the permitting exemptions under CWA section 404(f)(1) and associated regulations. As a result, construction

of fa rm or stock ponds, construction and maintenance of irrigation ditches, maintenance of drainage ditches, and other activities addressed under 404(f) will be treated under the final rule

[3] Id.

[4] Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

312 exactly as they have been treated for many years: exempt from 404 perm itting requirements unless recaptured under 404(f)(2). Note that these permitting exemptions apply to discharges of dredged or fill material into a water of the U.S. that would otherwise need a section 404 permit; they do not speak to the scope of jurisdi ctional waters.

The proposed and final rule does speak to the jurisdictional status of upland farm or stock ponds, and artificially irrigated areas. This rulemaking adds exclusions to the regulatory definition for the first time under (b)(4)(B) for ar tificial lakes and ponds created in dry land for uses such as stock watering, irrigation, settling basins, rice growing, or cooling ponds, and under (b)(4)(B) artificially irrigated areas that would revert to dry land should application of water to that ar ea cease. In response to public comments, and discussed in section 7.3 above, the final rule preamble explains that these exempted areas need not be used exclusively for such purposes rather. As a result of these provisions, the agencies believe the fina l rule helps provide important clarity to the scope of excluded waters. For more discussion of these and other exclusions from the definition of waters of the US, see section 7.2 of this compendium, the preamble, and the Technical Support Document. In ad dition, Compendium 6 focuses on public comments and responses regarding ditches.

Issue: Jurisdiction over ditches, irrigation canals and other water distribution systems

Some commenters indicated an exclusion for ditches wholly in uplands or that do not discharge into tributaries is trivial because water inevitably goes somewhere. If the use of drains is impaired by this perceived regulatory overreach, commenters assert it would cause unnecessary expense for farmers. The cumulative effect of drains on navigable interstate waters should be subject to state

- based requirements at discharge points that focus on a pollution problem. Commenters also noted the Proposed Rule does not expressly exempt irrigation canals, but instead defines “tributary” to includ e canals, and ditches not excluded in paragraph (b). They are concerned that many irrigation canals and water detention or delivery systems could become newly jurisdictional. Some commenters were concerned that the final rule would create a bias against irrigation projects on tribal lands, which (unlike most non

- Indian irrigation projects) were created since the enactment of the CWA. They recommended the final rule should clearly exclude Indian irrigation projects from the definition of WUS.

In response , the agencies note that longstanding agency practice has regulated many but not all ditches, and that the agencies are for the first time excluded certain ditches by rule. The agencies do not agree the final rule e xpan d s jurisdiction over ditches

. The a gencies have considered ditches to be generally non

- jurisdictional when they were excavated wholly in uplands, drain ed only uplands, and had less than intermittent flow. This approach is, for example, reflected in the

2008 Rapanos Guidance. The final ru le refines the approach to ditches, by clarifying for the first time in rulemaking which ditches are excluded from jurisdiction. The final rule is also clear that ditches that do contribute flow directly or through another water to a water identified in

p aragraphs (a)(1) through (a)(3) are not jurisdictional. See Compendium 6 on ditches for more discussion, as well as the preamble and Technical Support Document.

With respect to commenters’ suggestion that ditches and drains should be addressed as a point source and not as jurisdictional waters, the final rule is unchanged from the proposal. TheClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

313 approach that ditches can be considered both reflects the CWA itself as well as longstanding policy. See the final rule preamble and Technical Support Document fo r more discussion.

The final rule does not exclude all canals from jurisdiction, and as indicated in the preamble and rule text, some canals may be waters of the United States where they meet the definition of tributary. The agencies do recognize, howeve r, the importance of water reuse and recycling, and therefore paragraph (b)(7) clarifies that wastewater recycling structures created in dry land are excluded, including water distributary structures built for wastewater recycling. Paragraph (b)(7)

of the final rule specifically excludes constructed detention and retention basins created in dry land used for water recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they also often are located in close proximity to tributaries or other larger bodies of water.

The exclusion also covers water d istributary structures that are built in dry land for water recycling. These features often connect or carry flow to other water recycling structures, for example a channel or canal that carries water to a percolation pond. The agencies have not

consider ed these water distributary systems jurisdictional where they do not have surface connections back into, and contribute flow to, waters of the United States. In contrast, the agencies have consistently regulated aqueducts and canals as waters of the Unite d States where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The exclusion in paragraph (b)(7) codifies longstanding agency practice and encourage water management practices that the agencies ag ree are important and beneficial.

The purpose and intended effect of the final rule is not to create a bias against irrigation facilities developed on tribal lands. As mentioned above, the final rule policies are intended to encourage

beneficial water ma nagement practices with all waters of the United States, including on tribal lands. As discussed in the preamble, tribes play a vital role in the implementation of the CWA and achievement of its goals.

Specific Comments

Gila River Indian Community (Doc . #13619)

7.473 By far the most significant impact that the Proposed Rule could have is on the Community’s ongoing effort to develop and revamp our irrigation system to convey water throughout Community lands. This program, called the Pima

- Maricopa Irrigation Project (“P

- MIP”), has been ongoing for over a decade, and is intended to modernize and expand the on

- Reservation irrigation system based upon the blueprint of complex agricultural waterways that were built by our ancestors. The Community is developing

the P

- MIP system to deliver water throughout the Community through an expansive 2,400 mile irrigation canal system. The Community’s plans to expand agricultural production are directly tied to efforts to restore our traditional way of life and fight many

of t he alarming public health trends in our community. However, additional permitting requirements significantly hamper these efforts by additional permitting requirements for

on

- Reservation activities that have not required a CWA permit in the past. The Propo sed Rule’s broad definition of “waters of the United States” is comprehensive and has theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

314 potential to encompass and extend Agency jurisdiction over the entire P

- MIP system, which is currently exempt from jurisdiction.

The expansive assertion of jurisdicti on that the Agencies’ propose appears to run contrary to Congress’ intent in enacting the CWA, at least with respect to agricultural projects, such as the Community’s. The legislative history and text of the CWA clearly evince Congress’ intent to specifica lly exempt from permit requirements the construction of farm or stock ponds, as well as the construction and maintenance of agricultural irrigation

features. 296 The Community is concerned that the Proposed Rule contravenes Congressional intent

– a power that regulatory agencies lack

- and improperly extends agency jurisdiction over these types of features, which are extremely prevalent on the

Reservation and critical to P

- MIP.

The Proposed Rule does not expressly exempt irrigation canals, but instead defines “tributary” to include “canals, and ditches not exempted in paragraphs (b)(3) or (4)” of the proposed definition of “waters of the United States.”13 These sections define ditches but do not define or describe canals. Under this approach, the P

- MIP canal sy stem could become jurisdictional under a broad interpretation of the Proposed Rule, even if this is not the Agencies’ intent at this point in time. This would have deleterious impacts on the Community in general and P

- MIP canals in particular, and runs con trary to Congressional intent underlying the CWA. (p. 3

- 4)

Agency Response: See summary response above

.

7.474 The federal agencies seek input as to which waters “should be determined non

jurisdictional.” 297 Below are the Community’s recommendations.

1. The Final Rule should includ e unambiguous exemptions for all existing irrigation projects. These exemptions should clearly confirm that the proposed rulemaking does not apply to existing irrigation systems and that irrigation

- related canals are not extensions of

the waters of the U.S

. 2. The expansion of these CWA rules discriminates against Indian irrigation projects.

Most non

- Indian irrigation projects were constructed in the latter 19th and first part of the 20th centuries before such regulations existed. By the latter 20th and ear ly 21st centuries, as tribal nations engaged in nation

- building by putting their hard

- earned water resources to use, a plethora of regulations govern, restrict, and unnecessarily add expense to these

tribal efforts to make beneficial use of their trust wat er resources. The Final Rule should make clear that Indian irrigation projects are exempt from the definition of “waters of the United States” and specify that the Agencies’ jurisdiction under the CWA does not extend to Indian irrigation projects.

...
4. Th e rulemaking should clearly confirm that “canals” related to irrigation are not jurisdictional. Absent this clear definition, there appears to be great discretion on the part of the EPA and Corps to misapply and misappropriate jurisdiction by declaring

296 S. Rep. 95

- 370, at 76 (1977); 33 U.S.C. § 1344.

297 Id . at 22193

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

315 jur isdictional all or parts of the P

- MIP system, and thus requiring permits for maintenance of the system

. (p. 9)

Agency Response: See summary response above

.

North Carolina Forestry Advisory Council (Doc. #14123)

7.475 There is a list in the proposed rule of features that are not "waters of the US." Farming and silvicultural activities are not included on this list, but we feel they should be. Agriculture and forestry practices are already exempt under Section 404 of the Clean Water Act. It appears that this proposed rule seems to limit and possibly restrict activities covered in Section 404. (p. 1)

Agency Response: See summary response above , particularly section discussing the 404(f) exemptions from permitting requirements and their relationship to waters

of the United States.

North Dakota Office of the Governor, et al (Doc. #15365)

7.476 Agriculture drains should not be regulated as WOTUS; rather, states jurisdiction should address pollution concerns.

The agriculture drainage exemption conflicts with the inclusion of ditches as tributaries. Similarly, exemptions of drains wholly in uplands or that do not discharge into EPA’s expansively defined tributaries are trivial. Agricultural waters flow into drains that invariably go somewhere. For example, the exemption of subsurface drains as claimed by

EPA is trivial because subsurface drains generally flow directly into surface drains that are claimed jurisdictional in the proposed rule. Very seldom do drains, including tile drains, flow into a waterbody that would not be considered tributary under the propos ed expansive definitions. If use of the drains themselves is impaired by regulatory overreach by EPA or others with respect to drains, exemption of water removal at the land location will have little meaning

Agricultural drains should not be regulated as WOTUS. While the cumulative effect of drains on navigable interstate waters at discharge points should be subjected to state

based requirements, the oversight should not be on the drain. Instead, states should be allowed to focus on the receiving waterbody if there is a pollution problem. (p. 12)

Agency Response: See summary response above.

7.477 The storm water runoff exemption is ill

- defined.

EPA needs to clarify if the stormwater runoff exemption refers to tile and surface drainage practices that remove those waters. If not, the exemption provides little protection to agriculture producers. It is important to understand that EPA’s definition of tributary would not only authorize it to regulate water quality or limit discharge of agricultural chemicals (as with a TMDL) into a m ajor natural waterway affecting downstream interests, but within the drain itself

– within which waters would be under direct EPA jurisdiction. This offers an opportunity for micromanagement of the land itself at the field exit point, discounting downstrea m dissipation factors within the ditch or intervening wetlands.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

316 North Dakota is particularly concerned with the impact to farmers during the current wet cycle. Within the wet climate scenario, many depressional areas flood. North Dakota is currently dealin g with situations that involve the expansion of waters into farmsteads, farm fields, and towns. Many of these would be connected naturally under some scenarios; others would need to be artificially connected (drained) to protect the flooded parties. This a uthority would offer a powerful tool for federal interests to interfere with farmland water management, causing farmers hardship and delay as they are forced to spend more money and time on the permitting process. (p. 12

- 13)

Agency Response: See summary response above. In addition, it is important to

note that the final rule includes clarifications made in response to public comments

on stormwater

- related features. Comments on regulation of stormwater management features and associated responses are discussed in 7.4.4 , an d in the final rule preamble.

Department of Public Health and the Environment, State of Colorado (Doc. # 16342)

7.478 Agricultural Exemptions:

The agencies have stated that the proposed rule does not change or limit any of the multiple exclusions and exemptions from jurisdiction and permit requirements provided by the CWA and its regulations. Colorado supports the agencies' decision to retain int act all of the CWA agricultural exemptions. Agriculture is one of the largest economic sectors in our state; our farmers and ranchers feed the people of Colorado and beyond while conserving environmental resources. It is essential that any revisions to the provisions defining the scope of CWA jurisdiction and its exemptions not create any confusion for the agricultural sector, and that the proposed definitions do not impact the scope of the agricultural exemptions. Compliance with the CWA must be straightfo rward

and reasonable.

Furthermore, to provide clarity to the regulated community, the exemptions in CWA sections 402, 502, and 404 should be specifically included as exemptions in the proposed rule to expressly identify what is meant by the statement 9n t he Fed. Reg. notice (page

22193

- 4) that all statutory exemptions for agriculture from CWA jurisdiction will be

retained. (p. 2)

Agency Response: See summary response above. T he final rule preamble expressly indicates that permitting exemptions are unchanged by this rulema king.

State of Idaho (Doc. # 16597)

7.479 3. Exclusions

The Proposed Rule should specifically exclude additional waters and features generally considered to be outside the scope of CWA jurisdiction, including: a. Farm ponds, stock ponds, irrigation ditches, an d the maintenance of drainage ditches, as currently excluded under the CWA's agricultural exemption;

b. Man

- made dugouts and ponds used for stock watering or irrigation in upland areas that are not connected to surface waters; and c. Dip ponds that are exc avated on a temporary, emergency basis to combat wildfires and

address dust abatement. (p. 5)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

317 Agency Response: See summary response above. See response 7.3.2 regarding artificial lakes and ponds created in dry land.

Pyramid Lake Paiute Tribe (Doc. # 17472)

7.480 6. Specific e xamples of agriculture exemptions should be addressed in § 328.3

Definitions. (p. 2)

Agency Response: See summary response above. Specific examples of agricultural activities exempted from permitting requirements typically are addressed under program permitting regulation s, and thus are outside the scope of this rulemaking. However, several types of water features often found on agricultural lands are excluded from the definition of waters of the United States under this rule, as noted in the preamble, Technical Support D ocument, and several compendiums in the Response to Comments (including this one).

Board of County Commissioners, Clermont County, Ohio (Doc. #4581.2)

7.481 We are also concerned that certain agricultural best management practices, including grassed waterways and constructed vegetated beds or wetland treatment systems, could be regulated under the proposed definition. Local soil and water conservation districts and USDA Natural Resources Conservation Service agents are hard at work to encourage

local farmers to voluntarily adopt these practices. If there is any possibility that a practice might result in the creation of a regulated “Waters of the U.S.,” farmers across the country will stop utilizing these practices, which in turn would result in higher nutrient and sediment loadings to local streams. We recommend that any agricultural best management practice approved by the U.S. Department of Agriculture should be excluded from the proposed definition. (p. 2)

Agency Response: The agencies agree that encouraging USDA best managem ent practices is desirable. The i nterpretive r ule issued in April 2014 address ing the relationship between USDA best management practices and CWA permitting requirements has been withdrawn. USDA best management practices and the Interpretive Rule are dis cussed in Compendium #14 at section 14.2.

Land Improvement Contractors of America (Doc. #8541)

7.482 While EPA’s efforts to preserve the agricultural exemptions are critical and well

intentioned, the combined effect of the expansion of jurisdiction, and the fram ework to implement the agricultural exemptions, creates the following legal uncertainties and risks: (1) the potential that current non

- jurisdictional features, such as on

- farm wetlands, ditches and ponds will be deemed jurisdictional (e.g., those located in natural streams or connected to downstream jurisdictional waters), (2) discharges or fill and dredge activities affecting such previously non

- jurisdictional features may require a 402 or 404 CWA permit; and (3) failure to obtain a CWA permit may subject a farmer to CWA enforcement, including a citizen suit. (p. 2)

Agency Response: See summary response above, as well as the final rule preamble and Technical Support Document.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

318 Annette Schafer (Doc. #2743)

7.483 I oppose the rule for the following reasons:

1: The rule does not explicitly exempt waters that have no potential to directly impact human health. 2: The rule does not exempt farm

- use water that does not flow into or return to navigable waters, aquifers with no potential to be impacted by chemical application, surface st reams and rivers. 3: Water used for irrigation, supplied through canals and ditches that does not return to rivers, streams, and potentially impacted aquifers should be exempted. 4: The distribution systems used to convey irrigation waters

should also be e xempted. (p. 1)

Agency Response: See summary response above, particularly the subsection addressing j urisdiction over ditches, irrigation canals and other water distribution
systems . An earlier section of this compendium addresses the fact the final rule excludes groundwa ter from the definition of waters of the United States. As discussed in the Technical Support Document, CWA jurisdiction is not based on the potential for such waters to directly impact human health.

Grower

- Shipper Association of Central California (Doc. #4710.2)

7.484 The EPA has stated that the proposed rule will NOT apply to wet areas on fields or erosion features on fields. We are concerned that in the future, the broadening of the definitions and jurisdictions of “wetlands”, “ephemeral streams” and “ditches ” in this document could lead to regulation of retention ponds, a water quality measure that’s been widely adopted in our area, to the benefit of our lakes and streams. (p. 2)

Agency Response: See summary response above, particularly the subsection on jurisdiction over dit ches, irrigation canals and other water distribution systems

.

Adams Ranch, Inc. (Doc. #4978.2)

7.485 While agricultural operations have listed exemptions, there are situations that may not be considered. As an example, water retention has been identified as a " Best Management Practice," or an income source with "Dispersed water storage," In either case, agricultural lands may take on wetland characteristics. This could be detrimental to the lands under lying value, if they could not be converted back to an uplan d use (prior use). (p. 1)

Agency Response: See summary response above

.

National Farmers Union (Doc. #6249)

7.486 The agencies can alleviate agriculture's concerns by noting that waters not listed under section (b) of the proposed rule are not jurisdictional by default and will not be considered within CWA jurisdiction unless they fall into one of the categories listed in sections (a)(l) to (a)(7). (p. 8)

Agency Response: Under the final rule, all waters and features identified in paragraph (b) as excluded will not be waters of the United Stat es, even if they otherwise fall within one of the categories in paragraphs (a)( 4 ) through (a)(8).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

319 Minnesota Agricultural Water Resource Center (Doc. #14284)

7.487 In agricultural settings, we recommend... Farm fields should also be defined as always

non

- jurisdicti onal. (p. 2)

Agency Response: The CWA and the final rule defining waters of the United States only address waters, not dry land in farm fields. As discussed in many of the Response to Comments compendiums, the final rule preamble, and Technical Support Document, many wate r features on farm fields are non

- jurisdictional. In addition, longstanding permitting exemptions for agricultural activities in jurisdictional waters are unchanged by the final rule.

Peltzer & Richardson, LC (Doc. #16360)

7.488 ...the exclusion should be expan ded to include agricultural ponding basins that are not connected to any other water body. Agricultural operations often have need for temporary ponding of irrigation or tail water, and basins for these purposes have no logical or

functional connection to any navigable waterway, and should simply be excluded by rule. Currently, such basins can trigger the need for a full jurisdictional determination, requiring costly and lengthy review by USACE. Again, such processes have little to no value in meeting the c ore intent of the CWA (the preservation of the nation’s navigable waterways), and therefore a simple exclusion for these basins would serve the public interest. (p. 6)

Agency Response: S ee summary responsive above, as well as responses regarding artificial lakes and ponds and wastewater recycling structures

.

Glenn

- Colusa Irrigation District (Doc. #16635)

7.489 The Proposed Rule intends to maintain current exclusions contained within the definition of WOTUS, and to also incorporate other exclusions that have been implemented throu gh longstanding practices of the Agencies. However, the current exclusions and proposed new exclusions do not specifically address constructed facilities used to convey and deliver irrigation supply water, and irrigation and drainage ditches used in agricu lture.

... With respect to constructed facilities used to convey agricultural supply waters, the Proposed Rule is silent and arguably no exclusion exists to protect such facilities from falling within the definition of WOTUS. Considering the intent and purpo se of such facilities, and the fact that such facilities were constructed for this sole purpose, it is inappropriate for them to be WOTUS by virtue of some “controlled” connection to a traditional navigable water. To avoid this result, GCID recommends that a new exclusion be created for constructed facilities that convey agricultural supply water. Accordingly, we recommend the following new category be added to the list of exclusions:

Constructed facilities that are used solely to convey agricultural supply waters. (p. 7, 9)

Agency Response: See summary response above , particularly subsection on j urisdiction over ditches, irrigation canals and other water distribution systems.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

320 Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.490 Irrigation Facilities. The Proposed Rule has significant impacts on irrigation facilities, particularly in the western states. The Proposed Rule could be interpreted to allow the Agencies or third parties to assert that features such as irrigation and drainage ditches,

stormwat er ditches, and water storage or treatment ponds and reservoirs are jurisdictional tributaries, which would put the burden on irrigation water purveyors, farmers, and ranchers to prove that their facilities are exempt from CWA jurisdiction.

The irrigation facilities of the WWG member irrigation districts which receive Central Arizona Project (CAP) water cross many dry washes and streams within the Gila River Watershed, which ultimately drains into the Colorado River several hundred miles away.

In construct ing, operating, and maintaining its irrigation and electrical systems, the CAP Irrigation Districts are constantly crossing and occasionally working in these dry stream beds which are often located in flood plains. The CAP’s Irrigation Districts have their own irrigation water distribution systems which consist of multiple reasonably large canals and concrete lined ditches, which deliver irrigation water to the individual farms within the districts and are constructed pursuant to Bureau of Reclamation (BOR) designs and remain subject to BOR inspection and ownership. The CAP Irrigation Districts deliver only irrigation water through these systems to the individual farms of landowners,

and to a few Indian reservations. Most of these individual farms include ma n

- made dirt ditches for irrigation purposes, and tail water or excess flows often drain into one or more of the dry washes that the rule would likely treat as “ephemeral tributaries” to the Gila River Watershed. In addition, the natural drainage features h ave been enhanced to support flood control channels, which protect fields and irrigation facilities from flash flood events. In the very occasional major flood event, these flood control channels will divert flood flows into and through the natural drainag e system. Historically, maintenance work on these flood control channels has been performed on short notice and without the need to obtain CWA permits under section 404. The CAP Irrigation Districts also operate and maintain hundreds of irrigation wells wi thin these same areas, which could be treated as impacting “shallow subsurface” water under the Proposed Rule. In short, the Proposed Rule would appear to render most or all of the CAP Irrigation Districts’ systems as potentially jurisdictional.

To date, t he Agencies’ only response to the many concerns expressed by the irrigation community is to state that the rule “keeps intact all [CWA] exemptions and exclusions for agriculture that farmers count on,” 298 but the Agencies fail to recognize that the Proposed Rule would limit the effect of existing exemptions and exclusions by asserting jurisdiction over a much wider range of irrigation facilities, and fail to recognize that CWA permitting exemptions do not cover many routine activities necessary for irrigation . In particular, as noted above, the scope of the proposed jurisdictional exclusions for artificially

- irrigated areas and irrigation ponds is unclear. Moreover, even supporters of the Proposed Rule have admitted that “it is true that certain exemptions

298 Nancy Stoner, Setting the Record Straight on Waters of the US , EPA CONNECT BLOG (Jul. 7, 2014), http://blog.epa.gov/epaconnect/2014/06/setting

- the

- record

- straight

- on

- wous/.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

321 onl y apply to discharges of dredged or fill materia l, as opposed to pesticides.” 299 For these reasons, rather than subjecting water purveyors and users to a patchwork quilt of vague and narrow jurisdictional exclusions and permitting exemptions, the Agencies

sh ould categorically exclude all artificial irrigation facilities, as proposed in Section IV above. (p. 30

- 31)

Agency Response: See summary response above, particularly subsection on j urisdiction over ditches, irrigation canals and other water distribution systems.

With res pect to jurisdiction over ephemeral streams and certain ditches, see Compendium #8 on tributaries. With respect to the CWA section 404(f) permitting exemptions applying only to discharges of dredged or fill material, the CWA itself limits the exemption to dredged and fill material.

Castaic Lake Water Agency, Santa Clarita, California (Doc. #17061)

7.491 The proposed definition of tributary includes "A tributary, including wetlands, can be a natural, man

- altered, or man

- made water (emphasis added) and includes.. .canals and

ditches...". This definition is so broad that numerous man

- made non

- stream conveyances would constitute tributaries and become subject to unnecessary permitting. As discussed above, CLWA relies on water banking programs with agricultural water agencies in the San Joaquin Valley. These agencies operate manmade canals, such as the Cross Valley Canal in Kern County, to convey water between water banking facilities and the California Aqueduct. CLWA joins ACWA's requests that water conveyance systems be excluded from the definition of "waters of the U.S." in the proposed rule. (p. 2)

Agency Response: See summary response above.

Kansas Natural Resource Council (Doc. #14599)

7.492 It is understandable that the Kansas agricultural community would be concerned about

the proposed rule, especially if one looks at the available maps of potential playas and tributaries in Kansas. According to Bowen et al. (2010) there are over 22,000 playas in western Kansas. However, approximately 80% of these are less than five acres. It is likely that the majority of playas in Kansas are considered prior converted cropland and are therefore exempt from jurisdiction. The EPA, in an effort to further clarify jurisdictional waters, should attempt to assess the status of playas in this regard. At this juncture it is expected that protection of our remaining playas will come as a result of cooperative efforts such as the Playa Lake Joint Venture rather than through an application of the proposed rule. Cooperative efforts such as the PLJV should b e encouraged and supported. It may be that efforts by groups such as PLJV afford playas greater protection than imposition of “significant nexus” rulings. As for the tributaries, the proposed rule plainly states that there are to be no new jurisdictional w aters. The agricultural activities that currently take place in the ephemeral waters of the agricultural landscape are exempt from regulation. The ephemeral and intermittent tributaries have

299 Natural Resources Defense Council, Analysis of American Farm Bureau Federation Response to EPA Myth Blog
2, available at http://switchboard.nrdc.org/blogs/jdevine/Analysis%20of% 20AFBF%20response%20to%20EPA%20myth%20blog. pdf (last visited Nov. 7, 2014).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

322 always been jurisdictional under the Clean Water Act but have bee n ignored or exempt from protection in our highly altered and agricultural landscape. (p. 1

- 2)

Agency Response: The agencies support state efforts to protect local water

resources

. See also Compendium # 4 on other waters, and Compendium #5 on significant nexus. See also the final rule preamble and Technical Support

Document.

7.4.4. MS4s and other stormwater management features

Summary Response

Background

A municipal separate storm sewer system (MS4) is a conveyance or system of conveyances that is owned or operated by a publi c entity, designed and used to collect or convey stormwater and discharge it to waters of the U.S. This conveyance system includes road drainage systems, catch basins, curbs, gutters, ditches, man

- made channels, or storm drains. An MS4 is often operated by a municipality or county government, but other storm sewer systems, such as large public institutions (e.g., military bases) and State Departments of Transportation operate MS4s. MS4s often rely on a drainage network consisting of jurisdictional waters a s well as constructed conveyance structures to transport stormwater. Where MS4s incorporate creeks and streams, which may be channelized, piped or otherwise modified within their drainage network, the creeks and streams remain jurisdictional waters even if they are considered to be a part of the MS4. As development has intensified and reduced the infiltration capacity of the land, storm sewer systems have become significant pathways for collecting and carrying pollutants to waters of the U.S., often causing significant adverse effects on receiving water. To mitigate impacts on water quality, MS4s may have constructed stormwater “best management practices” (BMPs) to control the volume and/or pollutant loading of stormwater before it is discharged. 300

Stormwate r discharges from certain MS4s to waters of the U.S. are regulated under the National Pollutant Discharge Elimination System (NPDES) permit program under CWA § 402(p). Regulated MS4s include those serving a population greater than 100,000, those within Ce nsus

designated urbanized areas, and others that are designated by the NPDES permitting authority on

a case

- by

- case basis. MS4 permits must require controls to reduce pollutant discharges to the “maximum extent practicable” and may include other appropria te control requirements, such as specific provisions to address water quality. Most states are authorized to implement the NPDES

300 Under the NPDES regulations, “best management practices” or “BMPs” mean schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollutions of “water of the United States.” BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks or drainage from raw material storage. 40 CFR §122.2. In t he stormwater program, a BMP can be structural or nonstructural, and is the term used to describe the varied activities undertaken to administer a stormwater management program in order to meet permit conditions. “Practices” in this

context does not neces sarily mean regulated activities; the term can also refer to physical structures built to manage stormwater, e.g., a stormwater pond or a constructed treatment wetland.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

323 stormwater program and issue MS4 permits. Permitting authorities have considerable flexibility in establishing structural and non

- structural BMPs to control stormwater discharges. MS4 permits typically require implementation of stormwater control practices targeted at reducing pollutants in stormwater before it reaches the MS4, such as controlling sediment and erosion at

construc tion sites, reducing or treating discharges from new development and redevelopment projects, sweeping streets, eliminating illicit discharges to the MS4, and implementing pet waste

control ordinances.

Unlike most other NPDES permits, such as industrial p lants and sewage treatment works permits that establish pollutant limits and monitoring requirements for discharges from each of a facility’s discharge pipes, MS4 permits generally do not have specific provisions requiring end

of

- pipe effluent limitations for specific pollutants or monitoring at each MS4 outfall. CWA § 402(p)(3)( B) ( i ) specifically authorizes the issuance of system

- wide or jurisdiction

- wide permits to MS4. Requirements in MS4 permits typically apply to the entire system without reference to specific outfalls. MS4s typically implement a monitoring program that relies on representative sampling of outfalls and in some cases in

- stream monitoring. Monitoring results are typically used to inform the MS4 and the permitting authority as to how the existing best management or source control practices are performing and how they might be modified to further reduce pollutant discharges.

MS4 NPDES permits require control of discharges to and from their storm sewer systems in several ways. They must prohibit non

- stormwater discharges into the MS4 unless the non

stormwater discharg es have their own NPDES permit coverage. In addition, stormwater discharged from certain industrial or construction sites through the MS4 to the receiving water (or directly to the receiving water) must be covered by an NPDES permit. The MS4s’ programs

al so need to reduce pollutants in stormwater to the MS4 from construction sites during construction and to have controls in place that prevent or minimize water quality impacts from

post

- construction stormwater discharges from areas of new development and re development. Larger MS4s are also required to oversee regulated discharges from industrial sites. All MS4 permits must require reduction of pollutants “to the maximum extent practicable” and may include requirements targeting pollutants of concern to add ress impaired waters and to be consistent with the wasteload allocations from an approved total maximum daily load calculations. Increasingly, “green infrastructure” is used to achieve water quality objectives for urban stormwater and to minimize damage t o the biological, physical and chemical integrity of the receiving water by reducing the volume of stormwater being discharged. While there is no single definition of “green infrastructure,” with respect to stormwater, it generally refers to

stormwater ma nagement systems that mimic nature by infiltrating (and thereby treating), evapotranspirating or storing precipitation and runoff. Examples of green infrastructure include rain gardens, bioswales, and other infiltration devices, permeable pavement, green roofs, tree canopy, and cisterns. Minimizing the creation of impervious surfaces and downspout disconnection are also forms of green infrastructure practices to control stormwater.

A fundamental requirement for operators of all regulated MS4s is to devel op a map of their separate storm sewer systems showing the location of all outfalls and receiving waters. See 40 CFR §122.26(d)(1)(iii(B) (1) and §122.26(d)(ii) for Phase I MS4s and §122.34(b)(3)(ii)(A) for

Phase II MS4s. As has been the case with the NPDE S permit program in general, identificationClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

324 of jurisdictional receiving waters initially is done by the permit applicant by specifying outfall locations and the names of receiving waters, either when they apply for a permit or as part of complying with per mit terms. As noted above, MS4s frequently incorporate existing jurisdictional waters into their stormwater systems, though these jurisdictional waters may not be explicitly identified as such where they lack outfalls. Issues associated with the jurisdic tional status of waters are generally resolved through the permit issuance process, rather than as a separate or preliminary determination before permit coverage is decided. Mapping of outfalls

and jurisdictional receiving waters has been an ongoing effor t for most regulated MS4s.

Whether they are regulated under § 402(p) or not, MS4s are regulated under the § 404 program when the owners/operators undertake activities resulting in the discharge of dredged or fill material to jurisdictional waters that for m part of their drainage networks. Some activities, such as ditch maintenance may be exempt from 404 permit requirements. Other activities may be covered by a Nationwide General Permit issued by the U.S. Army Corps of Engineers, e.g.,

NWP 43 for stormwat er control structures.

Summary of comments

While EPA did not propose to change the jurisdictional status of various components of an MS4,

numerous commenters asserted that the definitions of “adjacent water,” “tributary,” or “other waters” in the propose d rule would encompass various MS4 features and make them jurisdictional waters of the U.S. In some cases, commenters expressed concern that if one component of an MS4 were jurisdictional, then the entire system would be considered jurisdictional. The res ult, commenters argued, is that the universe of waters of the U.S. would be greatly expanded and require significant state efforts to establish water quality standards and TMDLs for these newly created jurisdictional waters, and potentially the adoption of water quality

- based effluent limitations in MS4 permit for discharges to these waters. An oft

- noted

contention was that MS4 owners/operators would need to obtain § 404 permits for routine maintenance of their MS4s even if their systems were already regul ated under § 402 permits. This in turn could cause delays while waiting for § 404 permit coverage, even in time

- sensitive or emergency situations. Other concerns listed by commenters included unspecified conflicts between § 402 permit requirements and § 404 requirements, possibly inconsistent jurisdictional determinations under the two programs, and confusion about the extent to which an MS4 would qualify as an excluded “waste treatment system.” Many commenters asserted that regulation of

MS4s under the § 402 program is sufficient for any waters within their drainage systems and regulation under the § 404 program would not add any additional protection for those waters. In addition, commenters were concerned that the extent to which MS4s fall under the w aste treatment system or other exclusions had not been clearly expressed and requested very clear guidance on which features are jurisdictional and which are not, particularly where natural drainage features had been replaced by or made into engineered dra inage features.

Commenters provided several general and very specific recommendations for exclusions from the definition of waters of the U.S. for stormwater control features. Many questioned how

stormwater facilities fit into the various exclusions li sted in paragraph (b) of the proposed rule, e.g., settling ponds, artificial ponds, etc. A number asserted that an MS4 and its entire system of conveyances and other features, whether currently considered jurisdictional or not, should beClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

325 excluded. Many c laimed that MS4s are waste treatment systems and should be clearly identified as falling within the existing waste treatment system exclusion. Some commenters observed that stormwater control features that do not belong to a regulated MS4 should also be excluded, including MS4s not regulated under 402(p), and stormwater control ponds, conveyances and similar structures located at industrial and commercial sites. Others suggested that an exclusion be only for those MS4s that are permitted, or only MS4s tha t are owned by municipalities. Several commenters supported an exclusion only if the components were not built in waters of the U.S. Specifically, this was the recommendation of the Local Government Advisory Group.

Commenters identified numerous physica l features of an MS4 that should be excluded. Many also expressed concern that green infrastructure and other “natural” practices to improve water quality or reduce runoff would be considered waters of the U.S. under the proposed rule. According to comme nters, making such features jurisdictional would discourage the use of green infrastructure practices, contrary to EPA’s promotion of green infrastructure as a way for municipalities and others to provide multiple benefits for their communities.

Final Rule

To address the concerns raised by many of the commenters and to clarify the Agencies’ intent with respect to stormwater control features, the Agencies have a new exclusion for “stormwater control features constructed to convey, treat, or store stormw ater that are created in dry land” from the definition of “waters of the U.S.” at paragraph (b)(6). The following summary describes this new exclusion and addresses the many comments related to a stormwater

exclusion. Some issues raised in connection wit h stormwater control are also addressed in other compendiums as well, such as the Implementation compendium (12) , the Legal compendium (10)

, the Ditch compendium (6) and the Miscellaneous compendium (14)

.

MS4s often are a complex mix of constructed and natural features. When the EPA first proposed regulations for stormwater management to implement the 1987 amendments to the CWA, it was careful to distinguish between the constructed conveyance structures an d natural (or altered natural) waters that are used as part of the MS4’s drainage system. See 53 Fed. Reg. 49442 (Dec. 7, 1988). Generally, constructed features are not considered jurisdictional, while waters that were jurisdictional in the past retain their jurisdictional status as waters of the U.S., even if they are physically incorporated into the stormwater drainage network through piping, ditching, channelizing, etc. The final rule retains this status quo, but to provide clarity and to respond to

t he considerable confusion expressed by commenters about which stormwater control features are jurisdictional and which are not, and widespread calls for a stormwater component exclusions, particularly for MS4s, the Agencies developed a specific exclusion f or stormwater control features at paragraph (b)(6) of the final rule. EPA’s intent is to provide additional clarity and certainty. Consistent with the other exclusions in the final rule, as long as a feature qualifies

for the stormwater control exclusion , i.e., constructed to convey, treat, or store stormwater and built in dry land, it cannot become a jurisdictional water by virtue of the definitions of jurisdictional waterbodies, such as “adjacent waters,” “tributaries” or “other waters.”

The new stor mwater control exclusion covers all stormwater control features that are built in dry

land (with one exception noted below) . The exclusion is broadly defined to cover stormwaterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

326 control measures that are constructed to convey, treat, or store stormwater b uilt in dry land, and does not specify particular control measures that qualify for the exemption. Stormwater professionals and NPDES regulation refer to stormwater control features as Best Management Practices or BMPs. The Agencies decided not to list spe cific measures or features because the lack of uniform definitions for many of the features could miss some features and fail to anticipate future control features that should be captured by the exclusion. While the Agencies understand the desire to speci fy the exact features that qualify for the exclusion in the rule language itself, they determined that the better course of action would be to provide a more general category of excluded features. Some of the most common stormwater control measures

includ e traditional stormwater control structures such as pipes, street gutters, retention basins, detention basins, and ponds, as well as the newer types of control that fall generally into the category of “green infrastructure” such as rain gardens, bioswales, cisterns, and constructed

wetlands. Stormwater control features are designed to address runoff that occurs during and shortly after precipitation events; as a result, stormwater features that convey runoff are expected to only carry ephemeral or intermitt ent flow. The Agencies also note that the stormwater control exclusion applies to all covered stormwater control features, with one exception , regardless of whether an NPDES permit for the stormwater discharge from the control feature is required. Thus, i t covers municipal (regulated and unregulated), industrial, commercial, institutional, and

residential stormwater control features that are built in dry land. This exclusion does not cover transportation ditches; those ditches are addressed under paragraph (b)(3) of the rule For ease of implementation, the agencies want water features to be dealt with under only one provision of the rule; the agencies do not expect the scope of ditches excluded to be different under (b)(3) and (b)(6).

Commenters suggeste d that stormwater ponds could be covered by the exclusion for ““[a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing . . . .” Other commenters questioned whether st ormwater retention or detention ponds built at NPDES regulated construction sites would qualify for the exclusion for “water

- filled depressions created in dry land incidental to ... construction activity.” By creating a separa te exclusion that covers

stormwater control measures not built in dry land , the Agencies avoid uncertainty about interpreting other exclusions and enhance consistency in the application of the exclusions. Many commenters promoted the idea of using the wast e treatment exclusion as the best means for excluding stormwater control devices. As others noted though, the waste treatment exclusion has limitations, such as being available only for waste treatment systems built to meet Clean Water Act (CWA) requireme nts. Since the CWA only regulates some MS4s, any stormwater control measures constructed and used for purposes other than meeting CWA requirements would not have qualified for this particular exclusion. This could cause confusion since unregulated MS4s o ften use the same types of stormwater control measures as regulated MS4s, but are not building them for purposes of meeting the CWA. In addition, conventional stormwater collection control measures may be designed simply to provide flood control and

storm water transport, rather than pollutant removal. While some stormwater control features, such as bioretention basins and constructed wetlands, clearly provide treatment of pollutants, it would be difficult to assert that treatment was actually occurring in some MS4 components, such

as street gutters

. Historically, EPA has considered constructed treatment wetlands that are not built in waters of the U.S. to be covered by the waste treatment system exclusion. EPA notesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

327 that regardless of which exclusion und er paragraphs (b)(1)

– (b)(7) is applied, the effect is the same under the final rule. Any feature that qualifies for an exclusion cannot be a water of the U.S., even if it otherwise would fit into the categories of jurisdictional waters specified in

para graph (a) (4)

– (a)(8)

.

The Agencies do not agree with commenters who stated that jurisdictional waters incorporated into the drainage or stormwater conveyance system should be excluded by virtue of the fact that they are part of the larger stormwater con trol system. A water does not lose its jurisdictional status if it is piped, channelized, ditched or otherwise modified. This has been the case historically under the rules that applied prior to today’s action and continues to be the case under

the final rule. The Agencies note that the Local Government Advisory Council specifically recommended not excluding “natural waters.” The Agencies recognize that this means highly engineered MS4s that may have replaced natural drainage features with engineered st ructures will likely have jurisdictional waters within their systems. Urban waters provide important amenities to communities and aquatic life. Maintaining the jurisdictional status of streams that have been piped or altered will encourage stream restorat ion in urban areas, which has been vital in improving water quality. If a stream that has been enclosed in a pipe is jurisdictional only in its natural state, becoming a jurisdictional water when it is restored would most likely discourage important resto ration efforts. By acknowledging through the exclusion that urban stormwater drainage systems can contain jurisdictional waters within them even if they have been modified or engineered over time, communities may be more likely to appreciate the importance of these waters within the larger system and to undertake efforts to restore these waters over time to restore water quality.

The Agencies also do not agree with some commenters that “waters of the U.S.” and “point sources” are mutually exclusive terms under the CWA. As noted in the preamble, EPA’s longstanding position as a legal matter, is that one feature can be both a point source and a jurisdictional water. This position is discussed more thoroughly in the Technical Support Document. As a practic al matter, commenters seem to use the term “MS4” in varying ways. Some MS4 owners/operators recognize that certain waters within the drainage network are jurisdictional and serve to convey stormwater collected elsewhere in the system further downstream; s tormwater may enter and leave numerous constructed conveyance features along its pathway to a water of the U.S. Other MS4 owners/operators consider all waters within their drainage structures to be part of their MS4s because they form a continuous route fo r channeling stormwater to receiving waters. Stating that MS4s can contain waters of the U.S. is not only a long

- standing position, but also recognizes that different perspectives exist on describing the scope of an MS4.

Several commenters stated that having jurisdictional waters within their regulated municipal separate storm sewer systems would cause confusion, especially with respect to the application of water quality standards and TMDLs in their NPDES permits. Jurisdictional waters have always bee n subject to requirements for WQS and TMDLs and this is unchanged by the final rule. Furthermore, MS4 permits are written on a system

- wide basis and do not typically require compliance with end

- of

- pipe numeric effluent limitations at each outfall. Permit writers have a great deal of flexibility in how MS4 permits can be written to protect receiving waters from stormwater discharges. In addition, states have flexibility to identify the designated use of aClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

328 jurisdictional water and to establish what water qu ality criteria are necessary to meet that use. For example, some states have used narrative criteria rather than numeric criteria to protect certain jurisdictional waters within MS4 drainage networks. The final rule does not change these existing flexibil ities. The Agencies do not share the view that the final rule greatly expands the universe of waters requiring the need for states to establish water quality standards and TMDLs. As an overall matter, the Agencies have worked diligently to ensure that the final rule does not change the jurisdictional status of various components of stormwater systems by creating new categories of jurisdictional waters.

Several commenters cited a policy against using jurisdictional waters for in

- stream treatment and the p rohibition in 40 CFR §131.10 (a) against designating waste transport or waste assimilation as a use as reasons against retaining jurisdiction over waters that are part of the overall drainage network to manage stormwater. T he agencies do not want jurisdic tional waters to become receptacles for waste. However, on the rare occasions that in

- stream treatment is the only feasible alternative, usually due to geographical restraints, a permit applicant may apply for a § 404 permit to create a waste treatment sy stem in a jurisdictional water, thereby converting that

water to non

-

jurisdictional status

. That a jurisdictional water may transport stormwater along with other flows, such as base flows, does not mean that a water cannot have beneficial use other

than “w aste transport.” States are required to designate uses and adopt criteria consistent with Clean Water Act requirements. There, the agencies disagree with the commenters’ point that waters that a part of a stormwater drainage network cannot be jurisdictio nal. . MS4 permits rarely specify numeric water quality based effluent limits for specific outfalls; more likely, the permit would have requirements to use best management practices (BMPs). In those instances where an NPDES permit establishes a numerical effluent limitation for a particular MS4 outfall and the MS4 is not able to achieve that limitation, further off

- stream treatment would need to occur. It is important to keep in mind that not every change in a conveyance structure (e.g.,

channelized in con crete to unchannelized) means there is a discharge that would need an NPDES permit. See §122.26(b)(9), which explains that in the context of MS4s, open conveyances that connect segments of the same stream or other jurisdictional waters that transport wat ers of the U.S. are not outfalls for purposes of MS4 NPDES permits.

As a general matter, the agencies do not agree that regulation under both § 402 and § 404 of the CWA provides redundant protection. These CWA sections protect the nation’s water resourc es in different ways, and standards for determining permit terms and conditions differ under the two programs. Permits for “traditional” NPDES discharges (e.g., POTWs and industrial plants) contain effluent limitations for pollutants in discharges that are based on the level of pollutant control achieved by specified levels of technology, with more stringent effluent limitations imposed when they are necessary to attain water quality standards in the receiving water body. Permits for MS4 stormwater discharg es differ in the applicable standards for permit terms and conditions issued for MS4 in that the permit “shall require controls reduce the discharge of pollutants to the maximum extent practicable, . . . including such other provisions as the

Administrato r or the State determines appropriate for the control of such pollutants.” § 402(p)(3)(B)(iii). Permits typically require source control BMPs, rather than end

- of

- pipe effluent concentration limitations. Under the § 404 program, permit conditions may be de rived from § 404(b)(1) guidelines and may involve an analysis of alternatives to the discharge to minimize environmental harm. There may be some overlap between the two programs in termsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

329 of sites and facilities regulated, but the protections and actions of fered by each program differ. The two programs are not interchangeable in how they protect waterbodies or in how they are implemented.

Many commenters said that having jurisdictional waters within an MS4 drainage network would mean that discharges to the MS4 would also have to be regulated, implying that this would change the current situation. To support this assertion, some commenters cited a discussion in the preamble to the 1990 Phase I stormwater regulations that covers large/medium MS4s and

stormwa ter discharges associated with industrial activity. This discussion distinguishes between direct discharges to a Waters of the U.S. and discharges through an MS4. EPA notes that while not every source of pollutants that enter an MS4 is regulated under fed eral law, controlling sources and preventing pollutants from entering the MS4 has always been a significant focus of the MS4 program. CWA § 402(p)(3) (B )(ii) requires that permits for MS4s “shall include a requirement to effectively prohibit non

- stormwater discharges into the storm sewers.” In addition, stormwater discharges associated with certain industrial activity must be covered under an NPDES permit regardless of whether they discharge directly to waters of the U.S. or through an MS4. For this reason, the preamble to the 1990 Phase I regulation explained that discharges to waters of the U.S. via an MS4 are still discharges subject to the NPDES permi t program. EPA’s explanation of discharges through an MS4 does not support a conclusion that MS4s cannot have jurisdictional waters within their systems and has nothing to do with the location of jurisdictional waters. The permitting authority may designat e additional stormwater discharges that are discharged via an MS4. It is also important to note that the MS4 owners/operators must develop and implement controls for certain stormwater discharges like sediment from

construction sites and controls related t o post

- construction stormwater in new and redevelopment. Contrary to the assertions made by these commenters, the NPDES program for stormwater discharges does regulate discharges of pollutants that enter an MS4. Implementation of the stormwater program u nder CWA § 402(p) does not change as a result of the final rule. The stormwater control feature exclusion is designed to reflect the status quo with respect to MS4 components. Commenters raised a number of questions about implementation

of the rule with respect to stormwater, but implementation issues are outside the scope of this rulemaking. These types of issues may be addressed in outreach materials.

Specific Comments

State of Hawaii Department of Transportation (Doc. #10184)

7.493 The State of Hawaii Department of Transportation (HDOT) respectfully recommends the following changes to the Proposed Rule at 33 CFR Part 328.3 (Federal Register Vol. 79,

No. 76 p. 22263 column I paragraph 3) and similar sections in 40 CFR Parts 110, 112, 116, 11 7, 122, 230,2 32,300, 302, 401, and Appendix E to Part 300 as follows:

[Note: underlined section is to be added and bracketed section with strikeout is to be deleted]

"(b) The following are not 'waters of the United States' notwithstanding whether they meet the terms of paragraphs (a)(I ) through (7) of this definition

-

" ( 1 ) Waste treatment systems, including treatment ponds, lagoons , or Clean Water Act regulated municipal separate storm sewer s y stemsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

330 and the component convey anc es within such systems." [design ed t o

meet the requirements of the Clean Water Act.]”

Rationale

Since stormwater management activities are not explicitly exempt under this proposed rule, HDOT is concerned that its Municipal Separate Storm Sewer System (MS4s)

infrastructure could now be classified as a "water of the U.S." This infrastructure includes many HDOT MS4 conveyances, including ditches, channels, pipes and gutters that flow into a water of the U.S. and are already regulated under the Clean Water Act (CWA) Section 402 stormwater permit progr am...(p. 1)

Agency Response: Please see summary response to 7.4.4.

Py ramid Lake Paiute Tribe (Doc. # 17472)

7.494 The rule explains that connectivity to a traditional navigable water is considered criteria for waters of the United States. There isn't any language in the rule that defines geographic limit. The rule states that tributaries have a significant nexus to traditional navigable waters, but the nexus test is inapplicable to MS4s, since they are already regulated under CWA Section 402. To address this matter, we suggest tha t the rule clearly delineates that components of the MS4 are not waters of the United States. MS4s should be specifically defined as exempt from waters of the United States. (p. 2)

Agency Response: Please see summary response at 7.4.4.

State of Alaska (Doc. # 19465)

7.495 Finally, further clarity is needed in a newly proposed rulemaking that explicitly excludes stormwater collection and treatment systems from broad CWA jurisdiction. EPA already regulates discharges from certain stormwater systems to navigable waters under C WA

402. (p. 32)

Agency Response: Please see summary response at 7.4.4

California Department of Transportation, Division of Environmental Analysis (Doc. #19538)

7.496 3) Caltrans requests that the exclusions listed in section (b) of the proposed rule specifically exclude stormwat er facilities created in uplands, and designed to meet the requirements of an MS4 program, from jurisdiction under the CWA. (p. 2)

Agency Response: Please see summary response at 7.4.4

Florida Depar tment of Transportation (Doc. # 18824)

7.497 Jurisdictional Status of Stormwater M anagement Systems

The proposed rule identifies as non

- jurisdictional “waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act." However, the agencies do not provide an explanation of this excl usion, so it is not clear how or if this exclusion would apply to stormwater management systems that are constructed as part of transportation facilities to meet requirements of the Clean Water Act (CWA).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

331 The rule should clarify that the exclusion for “wa ste treatment systems, including treatment ponds or lagoons" specifically applies to stormwater management systems that are constructed as part of transportation facilities to meet state and federal regulatory requirements of the National Pollutant Dischar ge Elimination System (NPDES) pursuant

to Section 402 of the CWA . The exclusion should specifically extend to all stormwater management facilities, including stormwater collection, conveyance, treatment and discharge systems that are or may be regulated as Municipal Separate Storm Sewer Systems (MS4s) under the NPDES permitting program pursuant to Section 402 of the CWA. Without such exclusion for stormwater management systems, many MS4 regulated entities, including state transportation agencies such as FDO T, will no longer be able to appropriately manage and treat stormwater consistent with CWA requirements prior to discharge to Waters of the United States (WOTUS) as the MS4 itself would likely be deemed WOTUS under the proposed rule.

Even though USACE and USEPA do not propose to make conforming changes to the existing definitions of WOTUS for the various CWA programs to have the same language with respect to the "waste treatment system" exclusion, there is uncertainty as to whether canals, ditches and or an y feature that may be part of a permitted facility will now be deemed a WOTUS and subjected to additional permitting. In transportation facilities, linear flow features such as swales, ditches, canals and culverts provide

additional treatment to stormwater . Extending WOTUS jurisdiction within the treatment train of a stormwater management system may have the unintended consequence of giving stormwater management systems a regulatory status that is at best unclear. This is a chance to clarify that uncertaint y by expressly exempting these facilities. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4. Also please note that the proposed rule made changes to the definition of “waters of the U.S.” for all affected CWA programs, as does the final rule.

Lee County, Flo rida (Doc. #1346 .1 )

7.498 Without further guidance, by defining ditches and their contents to be “Waters of the US,” local governments will lose the ability to use existing ditches for treatment to improve water quality. Under existing MS4 permits, stormwater sy stems are authorized to accept and treat pollutants in the system as a whole which allows an opportunity for the pollutants to be assimilated prior to the stormwater being discharged into “Waters of the US.” These conveyance systems provide “treatment trai ns” which reduce nutrient loading and are physically separated from what has historically been considered “Waters of the US.” This loss will place a much greater burden of achieving water quality on the system operator in treating the source, as there is n o provision for treating in “Waters of

the US.” (p. 2)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, Clermont County, Ohio (Doc. #4581.2)

7.499 We are concerned that the “adjacent waters” definition could be interpreted to include

stormwat er retention ponds. To maintain their functionality, accumulated sediment must be cleaned from these ponds over time. This standard maintenance item would become exceptionally difficult to complete if retention ponds were to be regulated under theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

332 proposed Waters of the U.S. definition. Clermont County recommends that the definition specifically exclude stormwater management basins, as the more appropriate place to regulate these is under EPA’s municipal separate storm sewer system (MS4) regulations. (p. 2)

Agency Response: Please see summary response at 7.4.4.

New Hanover County, North Carolina (Doc. #5609)

7.500 Under section Ill. A. Summary of Proposed Rule, the list of specific waters excluded

under the Clean Water Act does not include man

- made, engineered stormwater systems. Irrigation, artificial water bodies, swimming pools, waters created for aesthetic reasons, depressions, groundwater and erosional features were addressed. Ditches, swales, retention ponds, piping, infiltration areas, Low Impact Development (LID) techniques and all other stormwater management systems for the control of runoff were not specifically excluded. These integral parts of stormwater systems perform water quality and quantity functions prior to discharging to downstream waters but should not by

thems elves be considered under the Clean Water Act. The presence or absence of a significant nexus for waters, especially those that do not have a hydrologic connection, appears to lump all waters together within a watershed. Once a significant nexus is made

wi thin a watershed, all other similarly situated waters could also be found to have a significant nexus. Ditches could also be considered subject to the Clean Water Act under this proposed legislation even when not declared jurisdictional water. Most of the stormwater conveyances in New Hanover County are maintained by the property owner of record so numerous permits would have to be issued to maintain them. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Carroll County Department of Land Use, Planning & Develop ment, Maryland (Doc. #6266.1)

7.501 County

- maintained, man

- made conveyances and ditches, used to treat or mitigate stormwater in particular, should not be subject to a Section 404 permit. Ephemeral flows in these ditches are already captured through the CWA Sect ion 402 NPDES MS4 permit

process... All local streets, gutters, man

- made ditches, and any other facilities covered under the NPDES MS4 permit should be explicitly excluded from the

definition of waters of the U.S. If this recommendation is not taken, at the very least, the federal agencies should clarify whether ditches will be considered in segments or only in

whole.

Since stormwater activities are not explicitly exempt under the proposed rule, we are

concerned th at MS4 ditches could be classified as “waters of the U.S.” If these facilities flow into a “water of the U.S.,” they are already regulated through the Section 402 NPDES MS4 permit process. Doubling up on the permit coverage and requirements will just creat e a more cumbersome, expensive, and lengthy process for local jurisdictions, with greater cost to taxpayers and slower progress toward Bay clean

up. In addition, the implementing agencies would be in a potential position of enforcing conflicting conditions or overlapping responsibilities. Even if this is not the current intention of the agencies, they may be forced to do so through citizen and interest group lawsuits. These additional requirements in the process will also create a need for

additional staff for the federal agencies. For these reasons, stormwater managementClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

333 activities, as well as green infrastructure, should be explicitly exempt from the Section 404 permit requirements. These facilities already provide a water quality function to mitigate or e liminate the impacts of ephemeral flows to "waters of the U.S." (p. 2

- 3)

Agency Response: Please see summary response at 7.4.4.

City of Westminster, Colorado (Doc. #7327.2)

7.502 Under the existing rules, the 2012 Nationwide Permit 43: Stormwater Management

Facilities states tha t these facilities could be excluded by USACE determination. However, the proposed rule is vague about the exemption. The City possesses numerous stormwater management facilities for flood control and water quality purposes. The City

feels these facilities are in compliance with the CWA, and should be exempt from USACE jurisdictional rule. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Transportation and Storm Water Department, City of San Diego, California (Doc. #7950.1 and

#7950.2 )

7.503 Key implications of the P roposed Rule that cause concern for the City are summarized below and specific comments are found in the attached table:

...

 Storm water facilities, storm water basins , and capture and treatment systems may or may not be subject to the Proposed Rule. Water b odies that are waste treatment systems designed to comply with the Clean Water Act are still categorically exempt. However, it is unclear how much of the MS4 infrastructure would be considered as "waste treatment". In California, waters designed to store o r infiltrate water that could be discharged to surface water or land without further treatment as part of a municipal wastewater treatment plant are not considered part of the treatment train and are not exempt.

 The language specifying other WOTUS definit ion exclusions (both old and new), such as that for swales and ditches, does not clearly exclude MS4 conveyance

facilities and other storm water related facilities.

Because of these issues, the City requests that the US Environmental Protection Agency and US Army Corps of Engineers (together referred to as the Agencies) incorporate a clear categorical exemption for MS4 systems into the final rule. The Agencies must

en sure that the definition of MS4s and the explicit exclusion for MS4s included in the pertinent sections of CFR 33 and CFR 40 are broad enough to exempt the full range of conveyances, green infrastructure, and treatment, storage, and infiltration facilities contemplated in California to achieve compliance with MS4 permits and integrated planning for storm water management and water supply reliability. The definitions and exclusions must ensure that the design and siting of storm water BMPs can remain

consist ent with the goals of storm water management, and not be compromised by the need to avoid federal jurisdiction. ( Doc. #7950.1, p. 2)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

334 7.504 Comment Number: 2

Section: 22201

- F

Topic: Tributaries

Comment: The proposed rule sta tes that some channels would not be considered “waters of the U.S.” if the channels are excavated wholly in uplands, drain only uplands and have less than perennial flow or channels that do not contribute flow either directly or through

water.

ACOE dredge and fill policies would be applicable in WOTUS. Therefore, storm water attenuation ponds (with no water quality treatment) and drainage ditches that are in the floodplain would be required to meet jurisdictional requirements

– even during routine

maintenan ce activities, unless an exemption is granted by the ACOE. This will lead to significant permitting and possibly mitigation costs for routine maintenance of essential public infrastructure (e.g. ditches, MS4).

Recommendation: Identify exemptions for storm water infrastructure maintenance activities. (Doc. #7950.2, p. 1)

Agency Response: Please see summary response at 7.4.4. Also, please note that the final rule concerns the definition of which waterbodies are protected by the

Clean Water Act.

7.505 Comment Number: 5

Section: 22206

Topic: Exemptions

Comment: Since, storm water management activities are not exempt under the proposed rule, the man

- made conveyances and facilities for storm water management could potentially be classified as a “water of the U.S.” This broad term an d reach has implications for adding increased cost for maintenance operations in the form of permits and required studies to prove the jurisdiction of the conveyance structure.

Recommendation: Provide exemption for storm water conveyance system. (Doc.

#795 0.2, p. 2)

Agency Response: Please see summary response at 7.4.4.

Office of Environmental Programs, City of Phoenix, Arizona (Doc. #7986)

7.506 Stormwater Infrastructure (MS4)

The Municipal Separate Storm Sewer System (MS4) is the city's stormwater conveyance system to the WOTUS, and has water quality compliance points where the MS4 discharges into the WOTUS. The proposed rule includes a very broad definitional of "tributary", which could be interpreted to include the City's entire MS4 infrastructure, including constructed d itches, pipes, storm water basins, water infiltration basins, up

gradient interceptor ditches or channels, and other facilities. The rule could be interpreted to include the rainwater collecting and running in the city streets, which could change the

water quality compliance points from MS4 discharges to the MS4 itself, making it almost impossible to meet water quality standards. Therefore, we respectfully request theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

335 inclusion of the "MS4" in the list of features identified as "not waters of the United

Sta tes" in §328.3 (b). (p. 2)

Agency Response: Please see summary response at 7.4.4.

Board of Douglas County Commissioners, Colorado (Doc. #8145)

7.507 MS4 facilities can include ditches, swales, ponds and other features which are authorized

under Section 402 of the CWA to treat an d discharge concentrated stormwater. The extent of Waters of the U.S. is relevant to MS4 permittees because there are a variety of regulatory requirements that may be triggered when MS4 facilities are located adjacent to, or within, Waters of the U.S. For example, MS4 facility maintenance required under CWA Section 402 which results in a change in the elevation of the ground within a jurisdictional area (through sediment and vegetation removal, regarding to restore flow, etc.) may trigger regulatory permitt ing requirements under Section 404 of the CWA.

Currently, stakeholders and regulators evaluate Waters of the U.S. using an EPA and USACE joint agency guidance title Clean Water Act Jurisdiction following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States (2008), hereafter referred to as “Current Guidance”. Under the Current Guidance, hydrologic features may be considered Waters of the U.S. depending on a variety of factors, including connectivity to downstream Traditiona l Navigable Waters (TNW), presence of wetlands or an Ordinary High Water Mark (OHWM), and possibly qualification for a waste treatment facility exclusion (Waste Treatment Exclusion), to name a few.

If adopted, the Proposed Rule would obviate the Current Gu idance (which is not a law but rather a guidance document that provides recommended practices based on law). Although the Proposed Rule includes a variety of changes and clarifications, the most relevant changes to MS4 facilities appear to include the requ isite connectivity to downstream TNWs and the definition provided for tributaries. Also relevant to MS4 permittees is that the Proposed Rule maintains (without substantial revision) an exclusion which states that waste treatment systems that are constructe d to meet other CWA requirements (e.g., MS4 permitting requirements) are not Waters of the U.S. (Waste Treatment Exclusion). Although the Waste Treatment Exclusion is not proposed to be changed substantially under the Proposed Rule, its current interpretat ion by EPA and USACE staff is variable and WWE has encountered resistance in having this exclusion applied to MS4 facilities in various parts of the United States. Based on this, the Waste Treatment Exclusion is evaluated alongside the Proposed Rule. Appli cation of the Waste Treatment Exclusion to different types of MS4 facilities is a topic that should be discussed with the USACE and EPA to gain an understanding of how it will be applied to

MS4 features. (p. 21

- 22)

Agency Response: Please see summary response at 7.4.4

Auro ra Water (Doc. #8409)

7.508 3. Since stormwater activities are not explicitly exempt under the proposed rule, temporary Best Management Practices (BMPs), such as diversion ditches and sedimentation basins, and constructed green infrastructure used to comply withClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

336 Municipal Separate Storm Sewer System (MS4) permits could now be classified as a

"WOTUS".

Since many of these temporary BMPs are often constructed adjacent to a "tributary" of a WOTUS, the proposal could be interpreted to now include these features as a W OTUS. As a result, maintenance activities to ensure continued effectiveness of the BMP may require permitting under CWA Section 404. Some counties and cities, such as Aurora, own MS4 infrastructure including ditches, channels, pipes and gutters that flow i nto a WOTUS and are therefore regulated under the CWA Section 402 stormwater permit program. Additional water quality standards (including total maximum daily loads) would apply should these stormwater ditches become classified a WOTUS. Not only

would the discharge leaving the system be regulated, but all flows entering the MS4 infrastructure could be regulated under NPDES as well.

In addition, "green" infrastructure is not exempt under the proposed rule. A number of local governments are using green infras tructure as a stormwater management tool to lessen flooding and to protect water quality by using vegetation, soils and other natural processes. The proposed rule could inadvertently impact a number of these sites by requiring Section 404 permits for non

- M S4 and MS4 green infrastructure construction projects. It is unclear under the proposed rule whether a Section 404 permit will be required for maintenance activities on green infrastructure once established.

Recommendation: MS4 stormwater features, such as related Best Management Practices and constructed green infrastructure should be clearly exempted from the definition of

WOTUS. (p. 3)

Agency Response: Please see summary response at 7.4.4

Alameda Countywide Clean Water Program, California (Doc. #8417)

7.509 Our concern is that the Proposed Rule’s suggestion that some types of storm water facilities, infrastructure projects and associated facilities could be regulated within the scope of a definitional WOTUS poses significant uncertainty and potential confusion among the regulat ed entities, and may increase the regulatory burden associated with implementation of MS4 permit requirements.

We concur with and support the comments filed by the California Stormwater Quality Association (CASQA) in this regulatory water docket process wh ich 1) recommends that the Agencies revise the Proposed Rule to clarify that MS4s are not WOTUS; 2) that the new definition of “Tributary” could improperly include MS4 facilities; 3) that the new definition of “Adjacent” could improperly include MS4 and ot her water resources facilities; ... and 5) that certain types of storm water related facilities discussed in the CASQA comments are also not considered to be WOTUS. Specifically, we concur with the CASQA recommendation that certain exclusions within the Prop osed Rule be expanded to include MS4 conveyance facilities and other related facilities. Exclusions needing expansion include: waste treatment system, artificial lakes, ditches, andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

337 swales. 301 We specifically refer to and support the revisions to the Propose d Rule that are provided in section II of the CASQA comments. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Southern California Association of Governments, et al (Doc. #8534.1)

7.510 The Proposed Rule will have real impacts for transportation and other critical

i nfrastructure. Road cuts and underpasses can impact high water tables that keep storm drains perennially wet. These drains are not natural in any sense and Congress did not intend them to be subject to the Clean Water Act's fishable, swimmable standards.

L ikewise, at the encouragement of EPA and its sister agencies at the state level, our agencies are installing structural treatment controls that mimic natural wetlands. These treatment controls are installed within the stormwater discharge system and ultima tely drain to traditional navigable waters. They are likewise planted with wetland plant species and if they are working properly, will provide habitat for various aquatic and wetland species.

Under the Proposed Rule this infrastructure that provides a sub stantial environmental

benefit will now be classified as a Water of the United States. As such these treatment controls would require 404 permits for maintenance and could be subject to Total Maximum Daily Loads (TDML).

This was not the intent of Congress and the EPA and Army Corps need to draft specific exclusions for this type of infrastructure into the Proposed Rule. (p. 3

- 4)

Agency Response: Please see summary response at 7.4.4.

Anne Arundel County, Maryland (Doc. #8574)

7.511 Where these roadside ditches to come under the de finition of a Water of the US, it would severely curtail the ongoing maintenance of roadside ditches and other manmade conveyances. Similarly, though there is an exemption for "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act," the revised definition of "waste treatment systems" should include explicit language indicating that stormwater management facilities (e.g., ponds, constructed wetlands, bioretention facilities, etc.) constructed as part of development projects or as part of a local jurisdiction's restoration requirements associated with its MS4 are categorically excluded from coverage as a Water of the US. There is a broad

- based acknowledgement that the aforementioned storm draina ge and stormwater quality features require regular maintenance and adaptive management, and that any regulatory hurdles placed in the way of accomplishing that important, ongoing work, are only like to

result in their eventual deterioration and failure to function properly. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4.

301 The exclusion should be revised to include gullies and rills, and non

- wetland and man

- made swales, and other

storm water treatment measures

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

338 City of Portland, Maine (Doc. #8659)

7.512 While we support the goals of the proposed rule

- making and as we continue to better understand the objectives by EPA with the Waters of the US, we have t he following questions and concerns:

- The final rule must clarify that municipal separate storm sewer systems (MS4's) are covered by the waste treatment system exemption and will not be jurisdictional under the CWA above any existing point of permitted disc harge, including any ditches that are part of MS4.

- EPA has verbally stated that the proposed rule is not intended to make green infrastructure (GI) installations jurisdictional, indicating that any Gl installation or Gl practice designed to meet CWA oblig ations or achieve water quality goals is not meant to be included. However, EPA and the Army Corp of Engineers need to specifically clarify this in the final rule. The City of Portland is expanding plans for green infrastructure projects as a means to enha nce water quality as part of our approved Tier III LTCP for CSO abatement projects, and does not want added regulations under the new proposed Rule as a means to mandate CWA results.

- The rule fails to provide intended level of clarity, certainty and predictability. Appears to increase the EPA's reach in an unpredictable way. Are drainage ditches, catch basins, swales, and other man made Ponds (such as the Deering Oaks Pond) exempt from the Rule?

...

- Waste treatment systems are excluded so clarity is needed if MS4's are covered under “systems" and thus exempt? (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4. In this response to comments, the Agencies cannot address whether or not a particular feature (Deering Oaks Pond in this instance) is a jurisdictio nal water of the U.S. Please consult the relevant permitting authority

Carroll County Board of Commissioners, Maryland (Doc. #8667)

7.513 All local streets, gutters, man

- made ditches, and any other facilities covered under the NPDES MS4 permit should be explic itly excluded from the definition of waters of the U.S. (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Chesapeake, Virginia (Doc. #9615)

7.514 2. The Rule states that a tributary, including wetlands, can be a man

- made water and includes waters such as impo undments and ditches. The City of Chesapeake does not support the inclusion of man

- made impoundments or ditches as WOUS, and the exemptions provided within the Rule for impoundments and ditches are too narrow to address the unique hydrology of the City of Chesapeake and neighboring jurisdictions.

All man

- made purpose built stormwater management facilities, not just ditches andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

339 impoundments excavated from uplands and with less than perennial flow, should be explicitly exempt from regulatory oversight under t he CWA. (p. 2)

Agency Response: Please see summary response at 7.4.4.

7.515 4. The Rule provides an exemption for artificial lakes or ponds used exclusively as settling basins, ditches that are excavated wholly in uplands, and ditches that do not contribute flow to a traditional navigable water . These exemptions are not comprehensive. Specifically, the Rule should have an exemption specifically for construction, maintenance and/or retrofitting of purpose built stormwater management facilities. Without such an exemption, the City' s efforts to comply with its Section 402 National Pollution Discharge Elimination System (NPDES) requirements (MS4) and compliance with future TMDL allocations will be severely limited. In addition, if these features are not exempt to the Rule, additional cumbersome reporting and resource intensive water quality standards may be applied to new WOUS under the Section 303 program. (p. 2)

Agency Response: Please see summary response at 7.4.4.

7.516 Most of the stormwater ditches within the City of Chesapeake are ephemeral or

intermi ttent and many of them have bed and bank and contribute flow to a WOUS during rain events; therefore, under the proposed Rule, most of Chesapeake's stormwater ditches could be considered WOUS and subject to regulatory oversight under the CWA. These

are the same stormwater ditches that require preventative maintenance and retrofitting to comply with the City's MS4 permit under Section 402 of the CWA. If stormwater management ditches become WOUS, would they then become subject to TMDL requirements? Would the EPA propose a TMDL for an impaired ditch? Would the Virginia Department of Environmental Quality (DEQ) then need to develop water quality standards for a ditch? Without more specific exemptions provided for purpose built stormwater management facilities in cluding, but not limited to stormwater ditches and ponds, the proposed Rule may have unreasonable, burdensome and unintended consequences. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.517 ...the City of Chesapeake has identified a significant number of concerns and problems with EPA's proposed waters of the US Rule; however, the City does support streamlining regulatory oversight by the EPA and the Corps through various sections of the CWA. Other than the regulatory provisions already contained within Section 402 of the CWA (NPDES & MS4), stormwater management facilities which have been constructed specifically for the purposes of conveyance, management, retention, and treatment of stormwater should be specifically excluded from regulatory oversight under the CWA including, but not limited to stormwater management ponds, lakes, swales, dry or wet detention basins, constructed wetlands, bio

- retention areas, rain gardens and intermittent/ephemeral ditches regardless of their proximity to a waters of the US or a

tradi tional navigable water; regardless of being ephemeral, intermittent, perennial; regardless of having shallow subsurface groundwater connections or confined surface hydrologic connections; regardless of contributing to WOUS in storm events; and regardless o f being excavated from uplands, wetlands, or agricultural lands. WithoutClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

340 these exclusions, there may be unintended consequences for local governments subject to MS4 regulation as well as private property owners. (p. 7)

Agency Response: Please see summary response at 7.4.4.

Pasco County, Florida (Doc. #9697)

7.518 Many stormwater management facilities, even those designed primarily for conveyance, have been "designed with nature" in which they would intentionally function as a natural wetland, pond or stream. In addition to its ma ny ecosystem and hydrologic benefits, it is a design concept that has been strongly encouraged by State and Federal Agencies. Moreover, these facilities are designed and permitted to provide flood control and water quality treatment benefits, and it is not appropriate to regulate them as WOTUS.

Recommendation: The final rule should explicitly state that stormwater management facilities are excluded from being considered WOTUS. More generally, USACE and EPA should work to ensure that concerns about creating jurisdictional waters do not discourage the implementation of green infrastructure or natural methods of stormwater management. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.519 Waste Treatment Systems

- The proposed rule would identify as non

- jurisdictional by rule "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" (79 FR 22263). The preamble does not contain any explanation of this exclusion, so it is not clear how this exclusion would appl y to stormwater management systems that are constructed to meet requirements of the CWA. One of the potential impediments to developing green infrastructure is the concern that wetlands created to receive stormwater runoff could themselves be deemed jurisd ictional.

Recommendation: The final rule should clarify that the exclusion for waste treatment systems, including treatment ponds or lagoons also applies to stormwater management facilities. More generally, the USACE and EPA should work to ensure

that conc erns about creating jurisdictional waters do not discourage the adoption of natural methods of stormwater management. (p. 4

- 5)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, White Pine County, Nevada (Doc. #9975)

7.520 How will local jurisd iction public improvements such as new street, gutter, and human

made ditches that direct water flows in weather conditions be excluded from such definitions to becoming a tributary artery and require 404 permitting processes? (p. 2)

Agency Response: Please see summary res ponse at 7.4.4.

Board of Supervisors, Imperial County, California (Doc. # 10259)

7.521 Uplands: The proposal exempts ditches cut into uplands from CWA jurisdiction but does not clearly state whether other features cut into uplands

- including municipal and private storm drain systems

- are similarly exempt. Additionally, the proposed rule does not include a definition of the term “upland,” though does provide new definitions for several other terms. (p. 1

- 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

341 Agency Response: With respect to the jurisdictional status of storm water control features as waters of the U.S., please see summary response at 7.4.4. The preamble to the final rule explains why the term “upland” is no longer used in the final rule and clarifies what “dry land” means.

Board of Supervisors, Imperial County, California (Doc. #10259)

7.522 Water Quality Treatment Features : Any constructed feature built for the purpose of water quality treatment or runoff control as required by any agency should be exempt from regulation under the CWA. It is important that cou nties are able to construct these features in a manner that is consistent with the overall goal of stormwater management without subjecting themselves to federal regulation. (p. 5)

Agency Response: Please see summary response at 7.4.4.

7.523 Impact on MS4

The proposed rule does not discuss the interrelationship of WOTUS and municipal separate storm sewer systems (MS4). The interconnected nature of storm drain systems regulated under MS4 permits and the broad nature of the definitions in the proposed rule could lead to legal uncer tainty and regulatory confusion. It is especially important for the Agencies to provide clear guidance on where an MS4 ends and WOTUS begins for counties in the Southwest, where engineered drainage systems have mostly replaced the natural drainage patterns in urbanized watersheds.

The current definition of tributary states that “a water that otherwise qualifies as a tributary...does not lose its status if, for any length , there are one or more man

- made breaks (such as bridges, culverts, pipes, or dams)...so lon g as a bed and bank with an ordinary high water mark can be identified upstream of the break.” (79 Fed. Reg. at 22263) The proposed rule would render a number of open channels per se jurisdictional under the broad definition of tributary and subject local agencies to further regulation. In addition, due to the proximity of WOTUS channels, it is possible that MS4 channels could be considered “adjacent” waters and therefore jurisdictional.

All told, the proposed rule could subject local agencies to the 404/40 1 permit process; result in high costs for repairing or upgrading infrastructure when it is already covered by the MS4 permit process; and, potentially expose local agencies to citizen suits. Accordingly, we believe that the Agencies should include languag e that exempts MS4 from CWA regulation even if it otherwise qualifies as a “tributary” under the proposed rule. The exemption language should explicitly address: stormwater conveyances, bioswales, green projects, and infiltration basins used to comply with an MS4 permit as these facilities are necessary to comply with the CWA. (p. 5

- 6)

Agency Response: Please see summary response at 7.4.4.

Kendall County Board, Illinois (Doc. #10965)

7.524 We object to the definition of waters of the US that does not specifically exclude

stormwat er management facilities and man

- made conveyances created for the purpose of preventing, limiting or controlling flooding. (p. 2)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

342 City of Escondido, California (Doc. #11116)

7.525 The expansion of the definition of Waters of the U.S. is seen in the last three bullets of

the defi nition (page 22913) relating to :

• All tributaries of a traditional navigable water , instate water, the territoria l seas or impoundment;

• All waters, including wetlands, adjacent to a traditional navigabl e water, interstate water, the territorial seas, impoundment or tributary; and

• On a case

- specific basis other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands,

located in the same region, have a significant nexus to a traditional navigable water,

interstate water or the territorial seas.

The current definition provides a disincentive to construct structural stormwater BMPs if there is a risk that a permit would be requir ed for maintenance. Bullet 2 should be revised to exclude basins and other structures for water quality treatment or flow

control from the definition. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4.

Urban Drainage and Flood Control District, Denver, Colorad o (Doc. #12263)

7.526 Excluded Waste Treatment Facilities . Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act, are not

Waters of the U.S. T he 2012 Nationwide Permits language clarifies that sto r m water management facilities that are determined to be waste treatment systems and under current regulations are not Waters of the U.S. The proposed rule does not significantly change the language regarding the excluded waste treatment facilities. Addition al clarification is required to identify types of facilities that qualify for this exclusion. Any facility designed and operated to treat stormwater runoff to meet the requirements of the Clean Water Act should be included in this exclusion. If municipal

s tormwater is to continue to be regulated as wastewater, lack of consistency in this

exclusion is not defensible. (p. 2)

Agency Response: Please see summary response at 7.4.4. Also see the summary response at 7.1 with respect to waste treatment systems.

Board of County Commissioners, Mesa County, Colorado (Doc. #12713)

7.527 Waste treatment systems : Under the Proposed Rule, the reference to "waste treatment systems" introduces some confusion regarding the types of features excluded. Mesa County requests additional clarifying language that extends the exclusion of waste treatment systems to include various components of MS4 systems that are constructed under requirements of CWA Section 402. Examples of the components include stormwater detention ponds, and ditches which collect the stormwater and transport it to stormwater detention ponds. (p. 3

- 4)

Agency Response: Please see summary response at 7.4.4. Also see the summary response at 7.1 with respect to waste treatment systems.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

343 City of Palo Alto, California (Doc. #12714)

7.528 Palo Alto owns and operates its municipal separate storm sewer system (MS4) and is a

co

- permittee of the San Francisco Bay Municipal Regional Stormwater NPDES Permit. We strongly recommend that because MS4s are already permitted under the Clean Water

Act and are regulated as point sources, they and their component features should be exempt from definition as waters of the U.S. The existing Section 402(p) permit program

mandates the management and discharge of storm water in our community. The proposed

definition of tributarie s creates the prospect of MS4 features being defined as waters of the U.S., resulting in uncertainty at best and ultimately complex and costly new regulatory requirements for storm water. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Vermont League of Citie s and Towns (Doc. #13075)

7.529 How will municipal separate storm sewer systems (MS4) infrastructure or infrastructure related to reducing stormwater runoff to Lake Champlain in compliance with that lake’s total maximum daily load be treated? We urge the EPA to exempt such infrastructure

from the definition of Waters of the United States. A Waters of the United States determination for MS4s and other stormwater systems

– including drains, roads, pipes, curbs, gutters, ditches, and other components that channel ru noff

– will have a

tremendous cost impact on local governments. (Examples include permit application costs, wetlands and stream mitigation costs, and project delay, redesign, and relocation costs.) (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4.

MS4 NPDES S teering Committee, Palm Beach County, Florida (Doc. #13218)

7.530 Palm Beach County's MS4 Program will be crippled upon implementation of the proposed WOTUS rule, as the majority of the components of the MS4 system in Palm Beach County will be considered WOTUS u nder the currently proposed rule language, despite the fact that Palm Beach County's current MS4 permit defines them as outside WOTUS jurisdiction. This reality necessitates an explicit exemption from jurisdiction within the proposed WOTUS rule for man

- mad e stormwater treatment systems that have been previously permitted under MS4 or EPA approved state permitting programs.

...If man

- made stormwater treatment systems became WOTUS, water quality requirements would have to be met prior to discharge into these s ystems. But these systems are intended to provide treatment. Under current State law, these systems are exempt from meeting state water quality requirements, and only discharges from the stormwater treatment systems are subject to the State water quality r equirements. If our stormwater treatment systems become WOTUS, then how do we provide treatment? The proposed WOTUS rule contains an exception for wastewater treatment systems; we believe there should also be an exception for stormwater treatment systems. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

344 Natural Resources Division, Public Works Department, Pinellas County, Florida (Doc. #14426.1)

7.531 Holding man

- made stormwater management systems to the same water quality, TMDL, NPDES, and other CWA requirements a s natural systems causes a burden on the local governments that construct and maintain these systems for flood control and water quality improvements. The rule will essentially shift the point of compliance for MS4s further upstream and in the case of Pine llas County will include the majority of stormwater ditches, canals, and stormwater treatment ponds. Applying water quality standards to infrastructure designed to reduce flooding, protect public safety, and treat stormwater pollutants will cause the Count y unnecessary costs and decrease the funds available for protection and restoration of downstream natural systems.

The rule should include an explicit exemption for man

- made permitted stormwater management facilities constructed for flood control and/or wa ter quality improvements. (p. 5)

Agency Response: Please see summary response at 7.4.4.

Bangor Area Storm Water Group, Hampden, Maine (Doc. #14543.1)

7.532 MS4 Stormwater Controls should be listed under waste treatment system exemptions.

While there has been discussion with EPA that has assured MS4s that traditional stormwater practices (e.g. stormwater detention pond and green infrastructure) are not intended to be jurisdictional, the current wording does not provide this assurance.

Request: The BASWG requests that specific term s, such as “stormwater control measures” or “Stormwater best management practices” should be formally included under this section on exemptions to reduce debate and legal action over this issue. (p. 1)

Agency Response: Please see summary response at 7.4.4.

7.533 3. Designation o f “all tributaries” that have an Ordinary High Water Mark connecting them to a traditional water of the U.S. as jurisdictional is excessively broad. This definition brings into question whether EPA intends (or would be able) to consider

stormwater conveyan ce facilities, treatment wetlands and infiltration projects to be Waters of the U.S. Natural and manmade ponds and wetlands could be considered tributaries under this definition. This would lead to regulation of stormwater conveyance

or treatment systems t hat are already regulated under the NPDES permit.

Request: The BASWG requests that the definition of tributary explicitly exclude MS4 facilities and clarify that MS4 facilities are not “Waters of the US.” (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Buckeye, Arizona (Doc. #14591)

7.534 Added to PART 32eDEFINITION OF WATERS OF THE UNITED STATES § 328.3 The following are not "waters of the United States" notwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of this section

- (5) The following features;" (and other similar sections)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

345 (viii) Fully

- constructed stormwater control measures.

(ix) Roadside ditches.

Comment Directly Related to the New Recommended Revised Rule Language

Provided Above...

... 4. Specific exclusion language is needed for urban SCMs [stormwater control measures]. If, as has been stated publicly, it is EPA's intent that most of these waters and structures are not to be considered WOTUS, this should be clearly stated in the rule. Such a clear

statement would formalize and clarify EPA's intent.

5. The current draft of the rule is almost silent about urban stormwater, in the preamble and the proposed rule language. This recommended revision language would rectify a portion of that deficiency. Adding exclusion language for ur ban SCMs to this rule would be appropriate, historic, and significant.

6. Because EPA is driving construction of MS4 SCMs and BMPs as part of its regulatory function, EPA has a responsibility to define clearly the jurisdictional status of most urban

SCMs i n the new WOTUS rule. This is part of the reason why an explicit exclusion for

most urban SCMs is needed...

... 9. The approach with this new recommended revised rule language is to provide a broad exclusion for most types and the vast majority of urban storm water SCMs, BMPs, and roadside ditches. The authors recognize that it may be appropriate that some types of urban SCMs are determined to be WOTUS, on a case

- by

- case basis. To this end, the new recommended revised language includes "exceptions to the exclus ion" in the definition for "fully

- constructed SCMs" (see the last three sentences). We urge EPA and the Corps to consider this approach for the final rule language. This approach allows for a categorical exclusion for most urban SCMs but also allows for so me types of urban SCMs to be determined to be WOTUS, on a case

- by

- case basis. If additional exceptions are needed and appropriate for "fully

- constructed SCMs" or exceptions are needed and appropriate for some types of roadside ditches, we urge EPA and the Corps to use this approach and add exceptions as needed.

10. We urge EPA to add explanatory language to the preamble to clarify its approach for urban SCMs. The preamble should be as clear for urban SCMs and roadside ditches as it is for agricu ltural water s, flows, practices, and ditches

. 11. The exclusion language in the current proposed rule (" Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean

Water Act. ") is inadequate for urban SCMs . Many urba n SCMs were constructed for and serve purposes other than "waste treatment ". Many urban SCMs were designed for purposes other than meeting "the requi rements of the Clean Water Act" . For example, this language does not cover many SCMs con structed in non

- pe rmitted MS4s . This language would not cover urban SCMs and roadside ditches constructed before the passage of the CWA The new recommended revised rule language is intende d to address

these deficiencies... (p. 2, 3

- 4 )Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

346 Agency Response: Please see summary response at 7.4.4.

Pub lic Works, City Golden, Colorado (Doc. #14617)

7.535 The potential for inclusion ofMS4 stormwater facilities would result in redundant regulation and oversight, as MS4 agencies would be regulated under both NPDES and

WOTUS where maintenance of stormwater feature s is concerned. This would be burdensome to general operations and maintenance of our stormwater system in our effort to comply with MS4 requirements. Because EPA is mandating construction of BMPs within MS4s as part of its regulatory function, EPA has a r esponsibility to define clearly the jurisdictional status of BMPs.

If the intent of the proposed rule is to not include MS4 storm water facilities under WOTUS, the proposed rule must provide clear and broad exclusions so stating, much the

same as the rule does for agricultural considerations. Without clear exclusions, operation and maintenance of BMPs will become complicated, difficult, and expensive for those responsible, without any corresponding environmental benefit. (p. 1)

Agency Response: Please see summary response a t 7.4.4.

Board of County Commissioners, Larimer County, Colorado (Doc. #14741)

7.536 The proposed rule would apply to other Clean Water Act programs which would then be subject to increasingly complex and costly federal regulatory requirements. For example,

Lari mer County has a Municipal Separate Storm Sewer System (MS4) General Permit from the Colorado Department of Public Health and Environment. We are concerned that

man

- made conveyances and facilities for stormwater management could now be classified as jurisd ictional under the proposed rule, potentially making them subject to additional permitting requirements and water quality standards (including total maximum daily loads). It seems inappropriate and unnecessary to require additional water quality regulation s on this type of manmade infrastructure that is constructed to meet the requirements of the MS4 regulations under the Clean Water Act. Larimer County suggests that any facilities designed and operated to detain and treat stormwater runoff to meet the requ irements of the Clean Water Act should not be considered waters of the U.S." and should be excluded under the existing Waste Treatment Facilities Exclusion. This exclusion should be the national standard that is followed by all local EPA and

USACE offices. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, Marion County, Florida (Doc. #14979)

7.537 The proposed regul ations expand key definitions t hat have potentially far

- reaching effects. "Tributaries" may now include stormwater managemen t features such as treatment ponds, swales, and ditches. These facilities are already constructed in accordance with Florida's longstanding environmental resource permitting program. Stormwater facilities, required to be maintained under state, as well as, federal (Section 404) rules, will now have another layer of regulation. Marion County recommends that: Stormwater conveyance systems, including upland cut ditches and swales, should be

excluded from the definition of WOTUS wit h limited exceptions.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

347 Stormwa te r facilities including constructed ponds and created wetlands should be excluded specifically from th e proposed definition of WOTUS. (p. 1)

Agency Response: Please see summary response at 7.4.4.

City of Glendale, Arizona (Doc. #15054)

7.538 Municipal Separate Storm Sewer System

The City of Glendale operates a MS4 in accordance with an Arizona Pollutant Discharge Elimination System permit issued by the Arizona Department of Environmental Quality. The MS4 consists of a series of open channels (gutter/curbs, roadside ditches, concrete channels) and underground piping to convey stormwater to Skunk Creek, New River, Agua Fria and other MS4s. It is unclear whether portions or all of the MS4 would be considered a "tributary" under the proposed rule.

Green infrastructure or low

- im pact development stormwater management methods control and utilize stormwater near its source. For example, instead of directing stormwater immediately into the underground stormwater pipe conveyance system, swales could be constructed and planted with veg etation to utilize stormwater before the excess water makes its way to the conveyance system. Under the proposed rule, these swales may be considered a "waters of United States.”

The proposed rule excludes ditches that are excavated wholly in uplands, drai n only uplands, and have less than perennial flow. Glendale's storm sewer system has less than perennial flow, however it is unclear whether portions or all of the system would be considered excavated in uplands or drain only uplands. Although the addition of a definition for uplands may provide clarity for the proposed rule, municipal separate storm sewer systems and associated green infrastructure should be specifically excluded from the definition of "waters of the United States."

Without a specific excl usion for MS4s, additional permits would be required. The City of Glendale's limited financial resources would be spent on permits without additional benefit to the environment. (p. 3

- 4)

Agency Response: Please see summary response at 7.4.4.

National Association of Countie s (Doc. #15081)

7.539 Counties Need Clarity on Stormwater Management and Green Infrastructure Programs

Under the CWA Section 402 National Pollution Discharge Elimination System (NPDES) permit program, all facilities which discharge pollutants from any point sour ce into “waters of the U.S.” are required to obtain a permit; this includes localities with a Municipal Separate Storm Sewer System (MS4). An MS4 is defined as a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- made channels, or storm drains)” owned by a state, tribal, local or other public body, which discharge into “waters of the U.S.”44 They are designed to collect and treat stormwater runoff.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

348 Since stormwater manage ment activities are not explicitly exempt under the proposed rule, NACo is concerned that man

- made conveyances and facilities for stormwater management could now be classified as a “water of the U.S.”

In various conference calls and meetings over the past several months, the agencies have stressed that municipal MS4s will not be regulated as “waters of the U.S.” However, EPA has indicated that there could be “waters of the U.S.” designations within a MS4 system, especially if a natural stream is channelized within a MS4. This means an MS4 could potential have a “water of the U.S.” within its borders, which would be difficult for local governments to regulate.

MS4s are subject to the CWA and are regulated under Section 402 for the treatment of
water. However, treatment of water is not allowed in “waters of the U.S.” This automatically sets up a conflict if an MS4 contains “waters of the U.S.” Would water treatment be allowed in the “waters of the U.S.” portion of the MS4, even though it’s

disallowed under curr ent law? Additionally, if MS4s contained jurisdictional waters, they would be subject to a different level of regulation, requiring all discharges into the stormwater system to be regulated along with regulating discharges from a NPDES

system.

The definiti onal changes could easily be interpreted to include the whole MS4 system or portions thereof which would be a significant change over current practices. It would also potentially change the discharge point of the MS4, and therefore the point of regulation. Not only would MS4 permit holders be regulated when the water leaves the MS4, but also when a pollutant enters the MS4. Since states are responsible for water quality standards of “waters of the U.S.” within the state, this may trigger a state’s oversight of water quality designations within an MS4. Counties and other MS4 permittees would face expanded regulation and costs as they will now have to ensure that discharges from outfalls to these new “waters of the U.S.” meet designated water quality standards

. This would be problematic and extremely expensive for local governments to comply with these requirements. Stormwater management is often not funded as a water utility, but rather through a county or city general fund. If stormwater costs significantly i ncrease due to the proposed rule, not only will it potentially impact our ability to focus available resources on real, priority water quality issues, but it may also require that funds be diverted from other government services such as education, police, fire, health, etc. Our county members cannot assume additional unnecessary or unintended costs.

Further, by shifting the point of compliance for MS4 systems further upstream, the proposed rule could reduce opportunities for establishment of cost effective regional stormwater management systems. Many counties and stormwater management agencies are attempting to stretch resources by looking for regional and integrated approaches for managing stormwater quality. The rule would potentially inhibit those efforts . Even if the agencies do not initially plan to treat an MS4 as a “water of the U.S.,” they may be forced to do so as a result of CWA citizen suits that attempt to address lack of clarity in the proposed rule.

EPA has indicated these problems could be reso lved if localities and other entities create

“well

- crafted” MS4 permits. In our experience, writing a well

- crafted permit is not enough

— localities are experiencing high levels of litigation from outside groups onClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

349 approved permits that have been signed off by both the state and the EPA. A number of Maryland counties have been sued over the scope and sufficiency of their approved MS4 permits.

In addition, green infrastructure, which includes existing regional stormwater treatment systems and low impact develo pment stormwater treatment systems, is not explicitly exempt under the proposed rule. A number of local governments, as well as private developers, are using green infrastructure as a stormwater management tool to lessen flooding and protect water quality by using vegetation, soils and natural processes to treat stormwater runoff. The proposed rule could inadvertently impact a number of these facilities by requiring Section 404 permits for green infrastructure construction projects that are jurisdictional u nder the new definitions in the proposed rule. Additionally, it is unclear under the proposed rule whether a Section 404 permit will be required for maintenance activities on green infrastructure areas once the area is established.

While jurisdictional ove rsight of these “waters” would occur at the federal level, actual water quality regulation would occur at the state and local levels, becoming an additional unfunded mandate on our counties and agencies.

Recommendations:

 Explicitly exempt MS4s and green in frastructure from “waters of the U.S.” jurisdiction (p. 15

- 16)

Agency Response: Please see summary response at 7.4.4.

Attorney’s Office, Harris County, Texas (Doc. #15097)

7.540 Since stormwater activities are not explicitly exempt under the Proposed Rule, Harris County is concerned that MS4 ditches could now be classified as Waters of the U.S...

...the Proposed Rule designates all tributaries, not otherwise excluded, as jurisdictional if they have an OHWM connecting them to a traditional Water of the U.S. This has the potential to include stormwater conveyance facilities, treatment wetlands, and infiltration projects within jurisdictional waters. This potentially expansive reading attempts to regulate MS4 infrastructures under both Section 402 and 404, which is an untenable

read ing of the CWA. It completely ignores the concept that MS4s are a point source distinct from and not coextensive, with Waters of the U.S. [The MS4 conveyance system is conceptually tied to the definition of "discharge" from the MS4, which occurs only

when water is discharged from an outfall into the Waters of the U.S. Attempting to include MS4 infrastructures within the definition of a Water of the U.S., in effect, alters the current outfall locations of our MS4 permitting program and potentially eliminates our MS4 altogether. Accordingly, Harris County requests that the Proposed Rule unequivocally state that the definition of a tributary does not include MS4 facilities, and MS4 facilities are not a water of the U.S. (p. 3)

Agency Response: Please see summary response at 7.4 .4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

350 City of Stockton, California (Doc. #15125)

7.541 The proposed rule defines a tributary as a water characterized with a bed and banks and ordinary high water mark, which directly or indirectly contributes flow to other waters of the U.S. Wetlands, lakes, and ponds can also be a tributary if they contribute flow to other waters yet may not have an ordinary high water mark. The rule continues by clarifying that a tributary does not lose its status as water of the U.S. if, for any length,

there are natural breaks (such as wetlands, debris piles, boulder fields, or streams that flow underground) or man

- made breaks (such as bridges, culverts, pipes, or dams). These provisions seem expressly intended to cover storm water systems because the definition

could be traced upstream from a storm water discharge point to any MS4 feature that collects rain water or runoff, including surface ditches and channels that are part of a storm water system. These features have beds, banks, and ordinary high water marks that

conduct fl ow to a water of the U.S. Likewise, upstream detention basins could be jurisdictional because they hold water that drains through ditches and pipes to a water of

the U.S. Because much of the MS4 is constructed in the 100

- or 500

- year floodplain, it

could b e defined as waters of the U.S. since the rule proposes to cover all "water"

- not just

wetlands

- that are in a floodplain and thus adjacent to jurisdictional waters.

We strongly recommend that because MS4s are already permitted under Section 402(p)

of the Cl ean Water Act requiring NPDES permits, they should be exempt from characterization as waters of the U.S. Similarly, features that make

- up the MS4 should also be exempt in order to ensure the continued functioning of the system; existing regulation prohibit s treatment of water within waters of the U.S., thus rendering a system unmanageable if a component part of the system is redefined as water of U.S. It would be infeasible to construct a storm water system that escapes the proposed definition of "tributary " because the very nature of storm water itself requires the collection of runoff, and sometimes storage, to adequately manage the flow of storm water and avoid flooding. (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Arvada, Colorado (Doc. #15153)

7.542 T he City of Arvada is dedicated to protecting water quality through our efforts as a Phase II Separate Storm Sewer System NPDES Permit holder and fully supports the goals of the Clean Water Act. However, we are very concerned about the ultimate consequences of the Proposed Rule in its current form and its significant effects to the Arvada community, specifically as it relates to identified stormwater infrastructure.

Under the connectivity criteria, stormwater features such as swales, detention ponds,

retenti on ponds, constructed wetlands, and green infrastructure could be considered WOUS. Further, roadside ditches that show connectivity could now fall under this Proposed Rule requiring significant permitting to conduct basic maintenance activities. Language d efining and excluding all man

- made stormwater facilities and their required maintenance must be added to the Proposed Rule. (p. 1)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

351 Board of Commissioners, Carroll County, Maryland (Doc. #15190)

7.543 All local streets, gutte rs, man

- made ditches, and any other facilities covered under the NPDES MS4 permit should be explicitly excluded from the definition of waters of the U.S. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Water and Sewer Department, City of Greeley, Colorado (Do c. #15258)

7.544 D. Exclusion for Municipal Separate Storm Systems ("MS4s")

Please confirm that MS4s are non

- jurisdictional under the waste treatment system exclusion or as point sources, or create a specific exclusion for MS4s in 40 CFR §122.2(b). It appears th at certain components of MS4s could constitute Tributaries, Adjacent Waters, or Other Waters. Treating such components as jurisdictional would hinder the water quality functions that the systems provide, and squander local government resources. (p. 7)

Agency Response: Plea se see summary response at 7.4.4.

Utilities Department, City of Santa Maria, California (Doc. #15487)

7.545 Santa Maria is concerned that the Proposed Rule will undermine its efforts to implement its Integrated Plan. Specifically, Santa Maria is concerned that i ts manmade drainage infrastructure ("MS4"), which is not natural or located where a natural surface water previously existed, may be considered to be a WOTUS under either the definition of "tributaries" or "adjacent" waters. Further, Santa Maria is concern ed that the per se exclusion from WOTUS for certain ditches is not sufficiently clear to apply to the City's MS4. Therefore, Santa Maria is concerned that the Proposed Rule will transform its MS4

into a WOTUS.

Santa Maria believes that treating the MS4 as a WOTUS is inconsistent with the CWA and, most importantly for the City, will hinder improvements to water quality. As pointed

out in the Waters of the U.S. Coalition comment letter and in the California Stormwater Quality Association ("CASQA") letter, MS4 s are not WOTUS. (See, e.g., 40 CFR § 122.26(b)(8) (defining MS4); CWA § 402(p)(3)(B) (establishing requirements for MS4 permits for discharges from MS4s to WOTUS).) In addition, treating the MS4 as WOTUS would prevent the City from moving forward with a w atershed

- based approach to solving water quality problems because the City would have to focus on each individual discharge into the MS4, rather than investing in comprehensive, integrated ways to achieve better water quality results using its system of de tention and retention basins. Such an approach might force the City to only worry about its urban contributions into the MS4 rather than allowing the City to address the larger water quality problem on a broader, more effective scale. The City believes tha t its concerns could be addressed through a narrowly tailored exclusion to the WOTUS definition that applies to the MS4. The Waters of the U.S. Coalition has suggested language for such an exclusion, as has CASQA. Such an exclusion is vital to allowing the City to move forward with its integrated planning efforts. (p. 2

- 3)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

352 Boulder County and the City of Boulder, Colorado (Doc. #15495)

7.546 2) Stormwater

- Since stormwater management activities are not explicitly exempt under the proposed rule, we are concerned that required (under an MS4 permit) man

- made conveyances and facilities for stormwater management could now be classified as WOTUS. The County and City both have MS4 permits which require infrastructure including ditche s, channels, pipes and gutters that flow into a WOTUS and are therefore regulated under the CWA Section 402 stormwater permit program. There is a significant potential threat for cities and counties that own and maintain MS4 infrastructure because they wou ld be subject to additional water quality regulations if their stormwater ditches and otherMS4 infrastructure are considered a WOTUS. Not only would the discharge leaving the system be regulated, but all flows, including uncontrolled flows entering the

MS4 , would be regulated as well. Even if the agencies do not initially plan to regulate an MS4 system as a WOTUS, they may be forced to do so through CWA citizen suits, unless MS4 infrastructure is explicitly exempted from the requirements. Additionally,

any change to the definition of WOTUS directly affects existing State and Federal programs that support the Clean Water Act such as the State of Colorado Water Quality Control Division, Water Quality Standards program, and the National Pollutant Discharge Elim ination System program. These changes will add complexity to required stormwater BMPs that are required under MS4 permits to protect stormwater quality and

downstream WOTUS.

Recommendation: The final rule should explicitly state that any stormwater

managem ent facility designed and operated to treat stormwater runoff to meet permit requirements or local regulations for managing stormwater be excluded from consideration as a WOTUS. More generally, the Corps and EPA should work to ensure

that concerns about cr eating jurisdictional waters do not discourage the implementation of green infrastructure or natural methods of stormwater management. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.547 3) Clarification regarding exclusion for waste treatment systems. Waste treatment systems, including stormwater treatment ponds or lagoons designed to meet the requirements of the CWA, or requirements of an MS4 permit, are not WOTUS under the current rule. Language in the 2012 Nationwide Permits and Current Guidance cla rifies that permanent BMPs that are determined to be waste treatment systems under current regulations are not WOTUS. The Proposed Rule does not significantly change the language regarding the excluded waste treatment facilities. However, it does not inclu de a categorical exclusion for stormwater BMPs and additional clarification is required to identify the types of facilities that should qualify for this exclusion.

Recommendation: Any facility designed and operated to treat stormwater runoff to meet the requirements of the CWA, local regulations or MS4 permit requirements for managing stormwater should be considered an excluded waste treatment system. (p. 3

- 4)

Agency Response: Please see summary re sponse at 7.4.4.

Anderson County, South Carolina (Doc. #15514)

7.548 Stormwater treatment facilities, best management practices, and MS4 infrastructure should be exempted just as wastewater treatment facilities are exempted. (p. 1)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

353 Agency Response: Please see summary response at 7.4.4.

County of Los Angeles and Los Angeles County Flood Control District, California (Doc. #15620)

7.549 B. NEED TO EXPRESSLY RECOGNIZE THE DISTINCTION BETWEEN MS4

AND WOTUS

...a significant portion of the waters within the urbanized areas of Los Angeles County

are either man

- made or man

- altered channels serving a flood control function. Most of these engineered channels, including the main stem of the Los Angeles River and its major tributaries, have been determined by EPA, the USACE, or the Los Angeles Regiona l Water Quality Control Board to be WOTUS and are so listed and mapped in the Water Quality Control Plan for the Los Angeles Region. We reiterate that it is not the intent of the County or the LACFCD to advocate for the de

- designation of these existing jur isdictional waters. Our concern is for an unintended expansion of the reach of jurisdictional waters in relation to MS4s, where waterbodies that are currently MS4s could become jurisdictional WOTUS. This concern is rooted in the definition of “tributary” a nd the absence of any discussion, in the Proposed Rule or its Preamble, clarifying the relationship of MS4 and WOTUS. To avoid confusion in stormwater regulations, as has been expressed by many commenters, the Proposed Rule should be revised to clearly rec ognize the delineation between MS4 and WOTUS.

Both the CWA and its implementing regulations distinguish between an MS4 (which is a point source) and a WOTUS (which is the “receiving water” into which the MS4 point source discharges). CWA Section 402(p) req uires that MS4s discharging into WOTUS must, as a “point source” discharge, obtain a National Pollutant Discharge Elimination System permit.... 33 U.S.C. § 1342(p)(3)(B)(iii). ”Municipal separate storm sewer” is defined to mean “a conveyance or system of c onveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- made channels, or storm drains)”. 40 CFR § 122.26(b)(8). Moreover, “outfall” is defined to mean “a point source as defined by 40 CFR 122.2 at t he point where a municipal separate storm sewer discharges to waters of the United States and does not include open conveyances connecting two municipal separate storm sewers, or pipes, tunnels of other conveyances which connect segments of the same stream or other waters of the United States and are used to convey waters of the United States.” 40 CFR § 122.26(b)(9) (italicized emphasis in original). The phrase “open conveyances connecting two municipal separate storm sewers” means that open channels or oth er conveyances linked on either end by storm sewers cannot be a WOTUS, since there is no “outfall” to a WOTUS when the upstream storm sewer discharges into the open conveyance. Such an open conveyance only links MS4 components and remains a part of the MS4

. In Los Angeles County, some isolated open channel segments that are fed by MS4 pipes and discharge into MS4 pipes are currently considered part of the MS4 but could become jurisdictional WOTUS based on the definition of “tributary”. Similarly, the detent ion basins previously described would, under high

- flow circumstances, constitute open

- water features within the MS4. These channels and basins are limited in length and are secured from public access for safety reasons. Under the Proposed Rule, however, su ch isolated features, because they have bed and banks and “ordinary high water mark”, couldClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

354 arguably be construed as WOTUS, even though they have never been viewed or treated by the EPA, USACE, or the Los Angeles Regional Water Quality Control Board as

any thing other than a component of the MS4.

The regulatory definitions of both an “MS4” and an “outfall” plainly distinguish between an MS4 and a WOTUS, which is the water into which the MS4 discharges. By definition, an MS4 discharges “to” a WOTUS, and it ne cessarily ends at the point of discharge to the WOTUS. 40 CFR 122.26(b)(8). An “outfall” exists only where a MS4 discharges “to” a WOTUS. 40 C.F.R. § 122.26(b)(9). Indeed, in litigation involving the County and the LACFCD, the United States Court of Appeal s for the Ninth Circuit has held that “[a]s a matter of fact and law, the MS4 is distinct from the two navigable rivers [the Los Angeles and San Gabriel Rivers].” Natural Resources Defense Council, Inc. v. County of Los Angeles , 673 F.3d 880, 899 (9th Cir. 2011), reversed on other grounds, Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc. , 568 U.S. ___, 133 S.Ct. 710 (2013).

The distinction between MS4 and WOTUS has been recognized both by EPA and the United States Supreme Co urt. In the preamble to the original version of the MS4 regulations, EPA drew a clear distinction between waters in an MS4 and a WOTUS: “[W]aters of the United States are not storm sewers for purposes of this rule.” 53 Fed. Reg. 49416, 49442 (Dec. 7, 1988) . This distinction was affirmed by the United States Supreme Court in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc., supra , in which the Court held that no “discharge” from an MS4 had

occurred when waters flowed from an engineered portion of the Los Angeles River into another portion of that same river. 133 S.Ct. at 712.

The absence of any discussion, in the Proposed Rule or its Preamble, to acknowledge the distinction between MS4s and WOTUS could potentially lead to regu latory confusion. Though EPA representatives have indicated that “well

- crafted” MS4 permits may minimize confusion, this assumes that permitting agencies can and are willing to limit liability to only certain discharges into WOTUS and could, by permit, so immunize MS4 operators from the threat of citizen suits. Without clarification, the rule could have the unintended consequence of expanding the reach of jurisdictional waters and force MS4 permittees to re

- evaluate watershed

- based best management practices , which are aimed at addressing pollutants in the MS4 as close to the receiving water as possible. This benefit would be lost if MS4 operators were forced to address each “upstream” discharge into an open conveyance. Finally, clarifying the demarcation bet ween MS4 and WOTUS would not contradict the Proposed Rule’s emphasis on designating waters as jurisdictional where they would have a significant effect on the chemical, physical, and biological integrity of a WOTUS; the impacts of MS4 discharges into WOTUS are addressed under CWA Section 402(p) through NPDES permits.

It is thus important that the final WOTUS rule leave no confusion as to where the MS4 ends and a WOTUS begins. At a minimum, the Agencies should include clarifying language in the Preamble to t he final WOTUS rule. Additionally, the County and LACFCD propose the following language to be added to the exclusions in the Proposed

Rule:

New Provision (b)(6)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

355 “Storm water conveyances or systems of conveyances that meet the definition of “municipal separ ate storm sewer system” as defined at 40 CFR 122.26(b)(8), are located upstream of an “outfall,” as defined in 40 CFR 122.26(b)(9), and are required to obtain a National Pollutant Discharge Elimination System permit pursuant to Section 402(p) of the CWA. A ny

man

- made or man

- altered waters conveying storm water previously designated as a water of the United States are not subject to exclusion.” (p. 9

- 12)

Agency Response: Please see summary response at 7.4.4. See also the Technical Support Document at Section I.C

.

Public Work s Department, Contra Costa County, California, et al. (Doc. #15634)

7.550 Municipal separate storm sewer systems (MS4), including stormwater conveyances (storm drain systems), bioswales, and green projects that are already regulated under

NPDES should be exclude d from designation as a Water of the U.S. and should be exempted from Clean Water Act regulation, even if they may otherwise qualify as a tributary under the proposed rule. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Village of Wellington, Florida (Doc. # 15654)

7.551 Wellington is a 34,000

- acre residential/equestrian community with some commercial areas and has been an MS4 NPDES permittee since 1997. Our man

- made MS4 (110 miles of canals, 170 acres of lakes, 400 acres of wetland/marsh preserves) is both a

convey ance system and a stormwater treatment system. Our current MS4 NPDES permit defines WOTUS as the receiving water bodies that accept discharges from the MS4. Our primary concern is that under the proposed definition of Waters of the United States, our

MS4 w ould become WOTUS. If these made

- man treatment systems become WOTUS, then in accordance with the proposed rule, these systems will be required to meet water quality requirements themselves. This will set our permitted state and federal stormwater

water qua lity programs back fifteen years and we will have wasted tax payers +$40 million dollar investment. This necessitates our request for an exemption from jurisdiction within the proposed WOTUS rule for man

- made stormwater treatment systems that have been per mitted under MS4 or EPA approved state permitting programs. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4. Also note that the final rule does change the implementation of the 402 program. See the summary response at 12.3.

Town of Shady Shores, Texas (Doc. #15709)

7.552 Proposed rule does not specifically exempt Municip al Separate Storm Sewer Systems (MS4s)

Since stormwater management activities are not explicitly exempt under the proposed rule, the Town is concerned that man

- made conveyances and facilities for stormwater

management could now be classified as a "water of the U.S.". The Town owns MS4Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

356 infrastructure including ditches, channels, pipes and gutters that flow into a "water of the

U.S." and are therefore regulated under the CWA Section 402 stormwate r permit program. There is a significant potential threat for municipalities that own MS4 infrastructure because they would be subject to additional water quality standards (including total maximum daily loads) if their stormwater ditches are considered a "water of the U.S." Not only would the discharge leaving the system be regulated, but all flows entering the MS4 would be regulated as well. Even if the EPA and Corps do not initially plan to regulate an MS4 as a "water of the U.S.", they may be forced to do so through CWA citizen suits, unless MS4s are explicitly exempted from the requirements. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.553 Proposed rule will hamper beneficial development such as green infrastructure

Green infrastructure is often utilized as a stormwater management tool to lessen flooding

and protect water quality. Green infrastructure uses vegetation, soils, and natural

processes to manage water and create healthier urban environments. Green infrastructure is not explicitly exempt under the proposed rule. The proposed rule could inadvertently impact the number of these types of storm water management systems built by developers, property owners and municipalities by requiring Section 404 permits for non

MS4 and MS4 green infrastructure constr uction projects. Additionally, it is unclear under

the proposed rule whether a Section 404 permit will be required for maintenance

activities on green infrastructure areas once the area is established. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Southern California Water Committee (Doc. #16170)

7.554 A. New definition of Tributary could improperly include MS4 Facilities

In the Proposed Rule, all “tributaries” are considered jurisdictional if it is a water physically characterized by the presence of a bed and ba nks and ordinary high water mark, which contributes flow (including on an ephemeral or intermittent basis), either directly or indirectly through another water, to a more “traditional” WOTUS. 302 Further, wetlands, lakes, and ponds may be a tributary even if they lack beds and bank and an ordinary high water mark. A tributary can be natural, man

- altered, or man

- made water and includes rivers, streams, lakes, ponds, wetlands, impoundments, canals, and ditches

that are not otherwise excluded. Man

- made or natural breaks (e.g., pipes, culverts, boulder fields) do not disqualify upstream reaches as tributaries.

Considering the expansive nature of this proposed definition, and unless otherwise excluded by rule, stormwater conveyance facilities, treatment wetlands, an d/or infiltration projects could be considered tributaries. Although the Proposed Rule attempts to clarify that tributaries are waters that have a bed, bank, and high water mark, more than likely disagreement will result with respect to the occurrence of s uch characteristics in a natural

302 Notably, the map prepared by EPA and included in the National Hydrography Database identifies even the washes in much of the Mohave Desert in southeastern California as “intermittent” and, under the Proposed Rule, would be a WOTUS. (See http://science.house.gov/epa

- maps

- state

- 2013#overly

- context.)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

357 or man

- made channel, canal, ditch, or swale. For example, some MS4 conveyance facilities have open channels that ultimately enter a WOTUS through an outfall. 303 Under the federal regulations, an outfall is defined to mean “a point source . . . at the point where a municipal separate storm sewer system discharges to waters of the United States.”3 (40 C.F.R. § 122.26(b)(9).) However, under the Proposed Rule, these open channels could be considered a WOTUS even though they have b een viewed and regulated as being part of the MS4, and are considered to be part of the point source itself. If these facilities were found to be a tributary to a WOTUS, they would become subject to CWA section 404 requirements, and current maintenance act ivities could require a section 404 permit as well as section 401 certification from the state. Further, water quality standards would apply in the open channels rather than after the discharge into a “traditional” navigable water. Such a result is nonsens ical considering that discharges from these types of open channels to traditional navigable waters are currently regulated under the MS4 permit program pursuant to section 402(p) of the CWA.

In addition to capturing open conveyance channels under the defin ition of tributary, other types of stormwater facilities may also be captured by this definition. For example, stormwater treatment or capture basins that have an “open water” feature could be jurisdictional under the tributary definition, if there is some form of connectivity to a traditional navigable water, or connectivity to a tributary to a traditional navigable water. The Proposed Rule has no geographical limit with respect to such connectivity. Thus, e.g., a constructed stormwater treatment system lo cated miles from a traditional navigable

water could be a WOTUS.

The Proposed Rule claims that it is appropriate to include tributaries “by rule” because it summarily concludes that tributaries have a significant nexus to a traditional navigable water, and that they affect the physical, chemical, and biological integrity of a traditional navigable water. With respect to MS4 facilities, the significant nexus test is inapplicable because MS4 facilities are already regulated under CWA section 402. Specifically , to the extent that MS4 facilities may significantly affect traditional navigable waters, they are regulated like other point source discharges to a WOTUS, and are subject to extensive NPDES permit requirements. Since they are so regulated, it is not nece ssary to capture such facilities under the definition of tributary because their physical, chemical, and biological impacts to traditional navigable waters are addressed through the terms of the applicable NPDES permit.

In light of these concerns, SCWC rec ommends that the Proposed Rule be revised to clearly indicate the definition of tributary does not, and is not intended to, include MS4 facilities. The Agencies can accomplish this by ensuring the exclusions (discussed below in section II) are clear, conci se, and specifically address stormwater management facilities. The Agencies also need to include text within the descriptive portion of the

303 SCWC recognizes that in some cases waters that are considered to be traditional navigable waters, or waters previously identified as jurisdictional, h ave been modified for flood control and other purposes. SCWC’s comments are not intended to imply that these waters are no longer WOTUS due to their use for flood control purposes and to the extent that these waters convey stormwater. Rather, SCWC is stati ng that stormwater facilities connected to these traditional navigable waters or waters previously identified as jurisdictional, and that are regulated under the MS4 permit program, are not WOTUS, and should not be converted to being WOTUS due to their con nectivity.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

358 final rule that clearly and definitively states that MS4 facilities are not a WOTUS. Such a

clarification is consist ent with previous EPA findings. (See 53 Fed. Reg. 49416, 49442 (Dec. 7, 1988) [“[W]aters of the United States are not storm sewers for purposes of this rule.”].) (p. 3

- 5)

Agency Response: Please see summary response at 7.4.4.

7.555 II. The exclusions for waters that are not WOTU S must be revised to incorporate MS4 conveyance and other related facilities

The Proposed Rule intends to maintain current exclusions contained within the definition of WOTUS, and to also incorporate others that have not been considered WOTUS through longs tanding practice of the Agencies. However, the current exclusions and the proposed new exclusions do not specifically include or incorporate MS4 conveyance

facilities and other stormwater related facilities. The exclusions need to be revised to provide cer tainty to stormwater managers, state regulators, and the Agencies themselves.

A. Waste Treatment System Exclusion

With respect to the waste treatment system exclusion, it does not adequately address the range of facilities constructed in California to conv ey, capture, treat, or infiltrate stormwater. At most, one would have to show that the stormwater facility was “designed to meet the requirements of the Clean Water Act.” However, considering the iterative nature of stormwater BMPs and MS4 permits in gener al, considerable discretion will be given to the Agencies, and ultimately the courts, in determining if a specific stormwater BMP was designed to meet the requirements of the CWA. Further, based on information presented in public workshops since the Propos ed Rule was published, the Agencies have been unable to provide clear direction with respect to stormwater facilities, and how they are covered by the waste treatment system exclusion. Accordingly, there is significant uncertainty with maintaining the wast e treatment system exclusion, as it currently exists. To ensure stormwater facilities are properly included in the waste treatment system exclusion, SCWC recommends that it be revised as follows:

Waste treatment systems, including treatment ponds , or lagoo ns, or stormwater capture and treatment systems designed to meet the requirements of the CWA (including permits issued pursuant to CWA section 402(p)) are not waters of the United States. This exclusion applies only to manmade bodies of water that

neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United

States . . .

B. Artificial Lakes Exclusion

The Proposed Rule would also exclude waters that have the features of being “[a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing . . . .” Many

stormwater related facilities have similar feat ures to those that are included within this exclusion. Examples of such facilities could include infiltration basins, bioswales, spreading grounds, detention basins, green infrastructure projects, and others. Further, many of these facilities were created in dry land and thus clearly meet the intent of the exclusion provided here. However, as currently proposed, this exclusion does notClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

359 specifically include stormwater related facilities and thereby creates uncertainty as to

where such facilities would fall u nder the Proposed Rule. To ensure that stormwater related facilities that meet the intent and purpose of this exclusion are properly included,

SCWC recommends that this exclusion be revised as follows:

Artificial lakes, or ponds , or basins created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, stormwater infiltration, groundwater recharge, or rice growing . . . (p. 7

- 8)

Agency Response: With respect to stormwater control features, please see summary response at 7.4.4. Groundwater recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land: detention and retention basins built for wastewater recycling, groundwater recharge

basins , and percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling” or under the stormwater control feature exclusion at (b)(6), depending on the source of water. In effect, both have the same result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in dry land. Please note that the final rule does not change the applicability of the Underground Injection Control program for Class V injection wells or subsurface

fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part

144.

7.556 To ensure that MS4 conveyance facilities that otherwise qualify as ditches are properly excluded, SCWC recommends that a third category of “ditches” be added to the

exclusions. Accordingly, we recommend the following category be added:

Ditches that are created or maintained as part of a municipal separate storm sewer conveyance system and that are managed as part of a municipal separate storm sewer conveyance system subject to re quirements under section 402(p) of

the CWA. (p. 9)

Agency Response: Please see summary response at 7.4.4.

Department of Environmental Services, Clark County, Washington (Doc. #16455)

7.557 While we support rulemaking to help define "Waters of the U.S." to help provide

certain ty to the jurisdictional scope of the Clean Water Act, we believe that the rule making falls short for governmental entities that have a Municipal Separate Storm Sewer System (MS4) permit, and attempt s to recapture jurisdiction reach and rulemaking that

h ad previously been stricken down by the Supreme Court.

We urge you to specifically exempt MS4 infrastructure from regulatory coverage under Section 404 of the Act and limit the regulatory governance to Section 402. (p. 1)

Agency Response: Please see summary response at 7.4 .4.

City of Beaverton , Oregon (Doc. #16466)

7.558 We recognize that EPA and the Corps may claim these outcomes are unanticipated. However, there is so much gray area in the proposed rule that the rise of third

- party citizen suits are likely to define all these described waters as WOTUS. The agency's so

-Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

360 called intent will not matter, because where there is gray, there will be a lawyer to file a lawsuit. Ultimately, the aggressive reach of this rule and its ambiguous provisions and terminology introduces uncertain ty, requires more agency analysis and intervention, and will create increased litigation.

With that in mind, the rule must include the following provisions that are priority concerns for local governments:

 Separate municipal storm sewers will continue to b e regulated and permitted under Section 402 of the Clean Water Act, and shall not be considered, either in their entirely or any individual feature thereof, waters of the U.S.;

... (p. 2

- 3)

Agency Response: Please see summary response at 7.4.4.

City of Oceanside, California (Doc. #16509)

7.559 ...the City recommends that certain exclusions within the Proposed Rule be expanded to include MS4 conveyance facilities and other related facilities. Key implications of the Proposed Rule that cause concern for the City are summarized below:

T he Proposed Rule identifies human

- altered channels and human

- made structures, including potentially storm water (MS4) infrastructure, as a WOTUS. MS4s are highly regulated, and NPDES permits provide legal authority for discharges from MS4s to WOTUS They ar e not themselves WOTUS, and MS4s are required, at a minimum, to implement controls to reduce the discharge of pollutants to WOTUS to the maximum extent practical (MEP). The consequence is that water quality standards (including Total Maximum Daily Loads) w ould have to be met within the MS4 and would undermine how the system is operated; the potential for beneficial capture, treatment and reuse of dry and wet weather flows would be diminished; and it would be more difficult for the City to comply with the re quirement to reduce pollutants discharged from the MS4 to the "maximum extent practicable". Unfortunately, the Proposed Rule fails to specifically exclude MS4s (and related infrastructure and associated facilities) from being a WOTUS. Thus, many of the new ly proposed definitions create significant uncertainty, and could be interpreted in a manner that would find an MS4 and/or its related facilities to e aW0TUS. These new definitions identify waters by category, and include tributaries, jurisdictional

ditche s, adjacent waters, and "other waters" with significant nexus to an existing WOTUS. The type of storm water facilities and o her related infrastructure projects that are potentially vulnerable to jurisdiction under these new categories, include, but are no t
limited to:

 MS4 conveyance facilities

 Detention and settling basins

 Storm water treatment systems

 Infiltration facilities

 Bioswales

 Groundwater recharge facilitiesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

361  Green infrastructure projects (p. 2)

Agency Response: Please see summary response at 7.4.4. Groundwater recharge

basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land : detention and retention basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater

recyc ling, and water distributary structures built for wastewater recycling ” or under the stormwater control feature exclusion at (b)(6), depending on the source of

water. In effect, both have the same result, i.e., the infiltration basin is not a jurisdiction al water as long as it was built in dry land. Please note that the final rule does not change the applicability of the Underground Injection Control program for Class V injection wells or subsurface fluid distribution systems under the Safe Drinking Wate r Act. See 40 CFR Part 144.

7.560 Tributaries to WOTUS are now broadly defined, including man

- made structures (dams, culverts), and are Jurisdictional by Rule. MS4 systems may be defined as tributaries and become subject o WOTUS regulation. In the Proposed Rule , all "tributaries" are considered jurisdictional if it is a water physically characterized by the presence of a bed and banks and ordinary high water mark, which contributes flow (including on an ephemeral or intermittent basis), either directly or indire ctly through another water, to a more "traditional" WOTUS. Further, wetlands, lakes, and ponds may be a tributary even if they lack beds and bank and an ordinary high water mark. A tributary can be natural,

man

- altered, or man

- made water and includes river s, streams, lakes, ponds, wetlands, impoundments, canals, and ditches that are not otherwise excluded. Man

- made or natural breaks (e.g., pipes, culverts, boulder fields) qualify upstream reaches as tributaries. Considering the expansive nature of this prop osed definition, and unless otherwise excluded by rule, storm water conveyance facilities, treatment wetlands, and/or infiltration projects could be considered tributaries. Although the Proposed Rule attempts to clarify that tributaries are waters that hav e a bed, bank, and high water mark, more than likely disagreement will result with respect to the occurrence of such characteristics

in a natural or man

- made channel, canal, ditch, or swale. City recommends that the Proposed Rule be revised to clearly and explicitly indicate that the definition of tributary does not, and is not intended to, include MS4 facilities. (p. 2

- 3)

Agency Response: Please see summary response at 7.4.4.

Palm Beach County, Florida (Doc. #16647)

7.561 Given the unique topography and high water table in South Florida, stormwater treatment mechanisms are necessary parts of the conveyance system of an MS4 that are integrated throughout the system to ensure water quality benefits are achieve prior to discharge through a control structure into a receiving "water o f the State" at the downstream end of the MS4 system. If stormwater treatment mechanisms and their accompanying MS4 systems become "Waters of the US," the points of discharge would be required to move upstream of the stormwater treatment system, resulting in the almost total elimination of the MS4 jurisdictional area. State water quality requirements would have to be met inside the systems, or DEP would be forced to adopt additional standards for those water bodies. For privately owned stormwater management systems (also referenced below), this would directly contradict established and EPA approved state law and regulatory regimesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

362 that consider the systems "waters" only for the purposes of discharge. For local government systems, this would practically elimi nate the ability to provide treatment within the systems prior to discharge. As an example, the lead permittee on the Palm Beach County MS4, Northern Palm Beach County Improvement District, will see its MS4 area reduced from 36,000 acres to less than 1,000 acres (a 97% reduction) under the proposed rule. The Village of Wellington, one of the larger municipalities in the County, will see a reduction in its MS4 area from 20,000 acres to 6,000 acres (a 70% reduction).

Under the proposed rule, an overwhelming m ajority of existing stormwater management systems will become "tributaries" or "adjacent waters," rendering the ability of permittees to the Palm Beach County MS4 Permit to implement Stormwater Management Programs

almost non

- existent. Maintenance activitie s that are required to be undertaken within the systems by State ERPs and the PBC MS4 Permit will be subject to permitting under Section 404 of the CWA, requiring additional time and resources from both local governments and the US Army Corps of Engineers. Delays in procuring required permits will impact the permitted systems flood protection and water supply benefits, and can expose local governments to legal liability regardless of whether the delay is attributable to a federal agencies failure to issue a permit. Additionally, businesses will not be able to rely on the rule to prevent a backlog in permitting that could have a negative impact on the construction schedule for redevelopment.

All stormwater systems permitted under Florida law and regulatory pr ograms are designed to provide retention, conveyance and treatment prior to discharge into "waters of the State." EPA Region IV's guidance on the treatment of wastes, including the treatment of stormwater, finds that such treatment in "Waters of the US" is inconsistent with provisions of the Clean Water Act. 304 Simply put, if stormwater management systems are considered jurisdictional "Waters of the United States" as contemplated under the proposed rule, the ability of local governments in South Florida to pr ovide treatment will be eliminated. This will result in deleterious water quality impacts to the water resources of the region, a result not contemplated by the agencies. As articulated below, Palm Beach County recommends that the federal agencies include language in the final rule explicitly excluding, as part of the waste treatment system exclusion, those

man

- made stormwater management systems that have been previously permitted under existing federal or federally approved state permitting programs. (p. 1 1

- 12)

Agency Response: Please see summary response at 7.4.4.

7.562 To avoid regulatory uncertainty, legal deficiencies and the practical consequences that will result from finalization of the proposed rule, Palm Beach County proposes the following amendments to the rule language:

... 4) Clarify the waste treatment exemption to clearly include man

- made storm water management and treatment systems that have been previously permitted under the MS4 permitting program or a federally approved state permitting program. Exempted ma n

-

304 See Final Region 4 Guidelines for Reconciling Storm Water Management and Water Quality and Resource Protection Issues (11/14/01).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

363 made storm water features should include ditches, canals and conveyances, wetlands, inflow basins, and other features that should be clearly articulated in the rule. Alternatively, the proposed rule should be amended to include a new exemption for

stormw ater management facilities and features.

... (p. 13, 14)

Agency Response: Please see summary response at 7.4.4.

City of Portland, Bureau of Environmental Services (Doc. #16662)

7.563 1) BES requests that EPA specifically exclude MS4 activities and permitted facilities and

other c onstructed green infrastructure facilities from the definition of "Waters of the US." Many municipalities are required to obtain Municipal Separate Storm Sewer System (MS4) permits for discharge of collected stormwater into Waters of the US. Green

infrastr ucture, such as roadside ditches, stormwater swales and green street facilities, is a key component of many MS4 systems. Because the appropriate regulatory controls and adequate oversight already apply to these discharges, all components of these systems

s hould be clearly exempted from the definition of Waters of the US. The MS4 permits and oversight however do not apply to the surface water components of natural drainages upstream or downstream. Those sections should continue to be jurisdictional under the proposed rule. In addition, constructed green infrastructure facilities that are not part of an MS4 system should also be excluded from the definition of Waters of the US. Without this clear exclusion, EPA could be inadvertently discouraging the use of gr een infrastructure because of the perception that they could be subject to additional oversight and regulation. (p. 1

- 2)

Agency Response: Please see sum mary response at 7.4.4.

Board of Supervisors, Lassen County, California (Doc. #17461)

7.564 The rule must clarify the impacts o n MS4 permits to avoid double regulation of permitted

entities

As it stands, the proposed rule provides no clarification on ditches used as conveyance for runoff in municipal storm water activities. Ditches are commonly used by municipalities for storm water discharge under the Municipal Separate Stormwater Sewer Systems (MS4) program, and such activities are already regulated as waste treatment systems under Section 402(p) of the CWA. The proposed rule would reclassify those

ditches as Waters of the U.S ., whereby the applicable control standard would no longer be maximum extent practicable under Section 402(p) , but the attainment of water quality standards thereby requiring the imposition of numeric effluent limits.

California has imposed stricter stand ards on all storm water permittees, including MS4 permit holders, and the proposed rule as it stands would only serve to exacerbate the already difficult task of compliance for rural counties in our State by causing jurisdictional confusion and dramaticall y increased compliance costs. Many rural California counties have either recently been required to comply with the MS4 permit, or will be required to comply within the next permit cycle. The implementation costs for new permittees would increase exponentia lly if the proposed rule is not modified to include clarification and exemptions for MS4 permit holders.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

364 RCRC recommends that, should you choose to proceed with the rulemaking, you specifically include ditches and other conveyance methods used to comply wi th MS4 permits under the exemption for waste water treatment systems. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Board of Supervisors, Amador County, California (Doc. #174 5 0)

7.565 Changes to the terms "navigable water" or "waters of the United States" will li kely alter the way many water bodies arc regulated and trigger new unfunded mandates on local governments. Additionally, the expanded definition will subject counties to additional enforcement actions, including civil and criminal penalties, and place loca l governments at great risk of third

- party litigation. Some examples include:

...

 Ditches used to convey municipal storm water discharge under the Municipal Separate Storm Water Sewer System (MS4) program could be reclassified as

Waters of the U.S. The recla ssification would change the control standard from the "maximum extent practicable under Section 402(p) of the CWA to the attainment of water quality standards requiring the imposition of numeric effluent limits. Unless specifically exempted, the costs fro m new permits will rise exponentially for local governments.

... Rather than codify what the agencies have practice for the past few decades, this rulemaking is an opportunity to re

- examine legislative direction and provide corrective

measures where needed. The two key words to focus on are "navigable" and "significant". We urge the agencies to narrow the scope of jurisdiction to waters suitable for vessels and waters that have a significant nexus to those waters, consistent with the CWA and Justice Kennedy's standard. At a minimum, we urge the agencies to clarify and specifically exclude water re

- use facilities, roadside and MS4 ditches, and floodwater control systems from the definition of "waters of the U.S.". (p. 2, 3)

Agency Response: With respect to stormwater control f eatures, please see summary response at 7.4.4. Groundwater recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land: detention and retention basins built for wastewater recycling, groundwater rechar ge basins, and percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling” or under the stormwater control feature exclusion at (b)(6), depending on the source of water. In effect, both have the same result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in dry land. Please note that the final rule does not change the applicability of the Underground Injection Control program for Class V injection wells or subsurf ace fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part

144.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

365 Department of Public Works, County of San Diego, California (Doc. #17920)

7.566 The County requests that the new rule exempt the full range of conveyances, green

infrastructu re, treatment, storage, and infiltration facilities necessary to comply with MS4 permits. The proposed rule should explicitly and categorically exclude from the definition of a Water of the US multiple separate storm sewer systems (MS4s), conveyances, and related infrastructure designed for stormwater management. MS4s are not mentioned in the proposed rule. This is a glaring omission. Without a clear exemption, many features of MS4s could be potentially considered Waters of the U.S. Although there is an exi sting exemption for "waste treatment systems," it is not clear if all features of MS4s would qualify for this exemption.

An exemption is needed for MS4s because the new rule redefines treatment and the definition of tributaries in a way that could allow ma ny MS4 facilities to be considered Waters of the U.S. because they contribute flow downstream. This presents a conflict in complying with sections 402 and 404/401 of the CWA. MS4 facilities and conveyances require maintenance to sustain their proper water quality function; however, Sections 404 and 401 could trigger a need for permits to conduct the maintenance if these facilities are considered Waters of the U.S. Clearly, clarification is needed to exempt infrastructure

and BMP features that are built and maintained to comply with MS4 permits. As explained above, the new definition of tributaries appears more expansive, which would reduce available water quality treatment options and make it difficult to locate such facilities, as Waters of the U.S. cannot be treated directly. As such, the new broad definition of tributaries would increase the cost of compliance, reduce treatment options, and make it more difficult to comply with Section 402 of the Clean Water Act.

Conveyances should be explicitly defined as drainage facilities other than sanitary sewers by which urban runoff may be conveyed to receiving waters, including, but not limited to, roads, streets, constructed channels, aqueducts, storm drain. pipes, street gutters, inlets to storm drains or pipes a nd catch basins. The rule should specifically exempt stormwater conveyances, bioswales, green streets, and infiltration basins that are necessary to comply with an MS4 permit. Additionally, the exemption should include structures and features designed in p ursuit of watershed

- based compliance options and integrated planning for stormwater management and water supply reliability. The definitions and exclusions must ensure that the design and location of stormwater BMPs can remain consistent with the goals of stormwater management without these areas being considered Waters of the

U.S.

EXAMPLE: The San Diego Regional MS4 Permit requires plans to address pollutants and impairments in jurisdictional water bodies, The Regional Water Quality Control

Board has ident ified Chollas Creek as impaired by dissolved metals. Expanding the definition of Waters of the U.S. to include ditches and other "offline" MS4 conveyances with connectivity to the Creek would significantly limit opportunities to treat stormwater

before it reaches the receiving water. (p. 2

- 3)

Agency Response: Please see summary response at 7.4.4. In this response to comments, the Agencies cannot address whether or not a particular feature (Chollas Creek in this instance) is a jurisdictional water of the U.S.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

366 7.567 Any construc ted feature built for the purpose of water quality treatment and/or runoff control as required by any federal, state, or local agency, including those with wetland indicators, connectivity and/or within a floodplain or riparian area, should be specifically defined as being non

-

jurisdictional by rule. In the Federal Register posting, the agencies request comment on which waters should be determined non

- jurisdictional by rule; this is an important example of such. It is imperative that the County, and other l ocal agencies, be able to construct and maintain water quality treatment facilities to ensure that the design and location of such facilities can remain consistent with the goals of stormwater management. If these facilities are left undefined, counties an d stakeholders would be vulnerable to broad application of federal jurisdiction as these facilities would be open to being considered jurisdictional by local regulators. If these water quality treatment features are considered jurisdictional, then lengthy permitting and possible costly mitigation would be required to construct and maintain these features.

EXAMPLE: The County implements bridge replacement projects administered by the Federal Highway Administration. These bridge replacement projects are commo nly located at stream crossings and typically include an increase in impervious surface to bring the bridge up to current standards. The increase in impervious surface area would trigger a requirement to install detention basins or a similar water quality treatment facility pursuant to Clean Water Act Section 402 and the corresponding MS4 permit. In this scenario, the water quality treatment facility must be installed adjacent to the new impervious surface in order to filter the water, which would also be a djacent to the stream. Thus, such a water quality treatment system would likely have direct connectivity, be within the floodplain, and within the riparian area. This example illustrates the importance of insuring that such facilities can be constructed an d maintained unimpeded by potentially being considered to impact Waters of the U.S. by a significant nexus, wetland, or other determination. (p. 4)

Agency Response: Please see summary response at 7.4.4.

Board of County Commissioners, Marion County, Florida (Doc. #18868)

7.568 Th e proposed regulations expand key definitions that have potentially far

- reaching effects. "Tributaries" may now include stormwater management features such as treatment ponds, swales, and ditches. These facilities are already constructed in

accordance with Florida's longstanding environmental resource permitting program. Stormwater facilities, required to be maintained under state, as well as, federal (Section 404) rules, will now have another layer of regulation. Marion County recommends that:

Stormwater c onveyance systems, including upland cut ditches and swales, should be excluded from the definition of WOTUS with limited exceptions.

Stormwater facilities including constructed ponds and created wetlands should be excluded specifically from the proposed de finition of WOTUS. (p. 1)

Agency Response: Please see summary response at 7.4.4.

Stormwater Advisory Committee, DeSoto County, Mississippi (Doc. #19473)

7.569 There is a risk that portions of our MS4s could be considered a WOTUS even before discharging into a jurisdictional water such as a river or a stream, which could lead toClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

367 significant new and duplicative regulations and costs. The DeSoto County Stormwater Advisory Committee believes that the proposed rule should clarify that MS4s are covered by the water treatment system exemption and will not be jurisdictional under the Clean Water Act above any existing point of permitted discharge, including any ditches that are a part of the MS4. (p. 1)

Agency Response: Please see summary response at 7.4.4.

Maui County, Hawaii (Doc. #19593)

7.570 Municipal Separate Storm Water Systems

1. The rule's new definitions for "tributaries" and "other waters" are abstract and contingent on variable field conditions. Under the proposed rule many stormwater systems and features could be considered WOTUS.

2. Waters asso ciated with storm water infrastructure should be specifically excluded from

the WOTUS definition.

3. Under the proposed rule, these stormwater channels could be considered jurisdictional even though they are part of the MS4 and regulated under an NPDES per mit. Regulating such waters under both an NPDES permit and Section 404 of the CWA is overly burdensome and unworkable from a regulatory and compliance standpoint.

4. If stormwater conveyances are deemed WOTUS, they will be subject to water quality

standard s. The costs of complying with water quality standards could be extreme.

5. Stormwater or stream channels could be considered "tributaries" or "roadside ditches" under the proposed rule, and including tributaries by rule is not practical. The proposed

rule should be revised to state unequivocally that the definitions of tributary and roadside ditch do not include MS4 facilities, and MS4 facilities are not "waters of the U.S."

6. Waste treatment systems, excluded under 40 CFR 122.3, should include stormwater management and treatment systems. The lack of such language leaves the rule open to interpretation as to whether stormwater controls are considered jurisdictional.

7. Infrastructure used to treat, manage, infiltrate or retain urban stormwater runoff shoul d be specifically included in the "waste system treatment" exclusions.

8. The rule should define the systems to which the exemption applies, including manmade structures and devices as well as treatment measures to improve water quality,

reduce stormwater volume, control flow rate and flooding, convey stormwater, or a combination of these purposes. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Board of Supervisors, Navajo County, Arizona (Doc. #19569)

7.571 Since storm water management activities are not explicitl y exempt under the proposed rule, Navajo County is concerned that man

- made conveyances and facilities for storm water management could now be classified as a “water of the U.S.” Some counties and cities own Municipal Separate Storm Sewer System (MS4) infra structure including ditches, channels, pipes and gutters that flow into a “water of the U.S.” and are therefore regulated under the CWA Section 402 storm water permit program. There is a significantClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

368 potential threat for counties that own MS4 infrastructure because they would be subject to additional water quality standards (including total maximum daily loads) if their storm water ditches are considered a “water of the U.S.” Not only would the discharge leaving the system be regulated, but all flows enterin g the MS4 would be regulated as well. Even if the agencies do not initially plan to regulate an MS4 as a “water of the U.S.,” they may be forced to do so subsequently through CWA citizen suits, unless MS4s are explicitly exempted from the requirements.

Thi s concern is validated with the Science Advisory Board (SAB) Panel for the Review of the EPA Water Body Connectivity stating in its report that “the Panel members noted that many of the exclusions in the proposed rule do not have strong scientific justific ation and, rather, reflect policy decisions that account for stakeholder concerns and / or historical practices” (p. 6).

Storm water management is often not funded as a water utility, but rather through a county general fund. If storm water costs significa ntly increase due to the proposed rule, not only will it potentially impact the counties ability to focus available resources on real, priority water quality issues, but it may also require that funds be diverted from other government services such as educ ation, police, fire, etc.

By shifting the point of compliance for MS4 systems further upstream, the proposed rule could reduce opportunities for establishment of cost effective regional storm water management systems. Many counties and storm water manageme nt agencies are attempting to stretch resources by looking for regional and integrated approaches for managing storm water quality. The rule would potentially inhibit those efforts. (p. 4

- 5)

Agency Response: Please see summary response at 7.4.4.

Department of Public Works & Engineering, City of Cookeville, Tennessee (Doc. #19619)

7.572 Certain categories of waters need to be specifically excluded from WOTUS status:

 Urban stormwater control measures and BMPs within a regulated MS4 should be excluded as they are already regulated t hrough the NPDES communities

 Constructed wetlands (constructed in uplands) are a waste treatment facility and

should not be considered WOTUS

 MS4 conveyance facilities and other stormwater related facilities such as roadside ditches, gutters, culverts, swales, and flood control features, etc.

... (p. 2)

Agency Response: Please see summary response at 7.4.4.

Association County Commissioners of Georgia (Doc. #5912)

7.573 Since stormwater management activities are not explicitly exempt under this proposed rule, we are concerned that Municipal Separate Storm Sewer System (MS4s)

infrastructure could now be classified as a “Water of the U.S.”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

369 This infrastructure includes many county MS4 conveyances, including ditches, channels, pipes and gutters that flow into a water of the U.S. and are already regulated under the CWA Section 402 stormwater permit program.

We are concerned that not only would the discharge leaving the stormwa ter system be further regulated, but all flows entering the MS4 could be regulated as well.

In various conference calls with the National Association of Counties, EPA staff have stressed that they do not “intend” to regulate an MS4, as a “water of the U.S. ”

We take them for their word on their intentions.

However, EPA and the Corps may be forced to do so through citizen/environmental group CWA lawsuits as these ditches, pipes and channels, under the rule’s “tributary” and “adjacency” definitions, could very well be interpreted to be “Waters of the U.S.”...

Proposed Action: In order to avoid this, ACCG respectfully recommends that MS4 activities be explicitly exempted under the proposed rule. (p. 2)

Agency Response: Please see summary response at 7.4.4.

California State Associa tion of Counties (Doc. #9692)

7.574 The ramifications of...plausible scenarios are: subjecting local agencies to the CWA 404/401 permit process, high costs for repairing or upgrading such infrastructure when it is already covered by the MS4 permit process, and pot ential liability to citizen suits. It should be noted the EPA has previously determined that storm drains cannot be WOUS. The agencies should therefore include language that exempts MS4 from CWA regulation even if it otherwise qualifies as a "tributary" un der the proposed rule. The exemption language should explicitly exempt: stormwater conveyances, bioswales, green projects, and infiltration basins used to comply with an MS4 permit as these facilities are necessary to comply with the CWA. (p. 9)

Agency Response: Please see summary response at 7.4.4.

Association of California Water Agencies (Doc. #12978)

7.575 The proposed rule places groundwater recharge facilities and stormwater management

at risk.

Many arid western states use surface infiltration as a management tool to preve nt flooding, store excess water for future use, replenish groundwater supplies, mitigate salt water intrusion, or abate land subsidence. The most economical manner of groundwater recharge is to construct a basin in alluvial material immediately adjacent to a perennial or ephemeral stream. This allows water to rapidly infiltrate through the basin to the unsaturated zone where it is added to the aquifer below. In addition to the basins, flood control dikes, swales and ditches are used to capture and convey st ormwater to protect public safety. In addition to being adjacent to a “waters of the United States”, all of these features may contain hydric soil, wetland vegetation, and have an ordinary high water mark. Currently, these facilities have not been deemed t o have a significant nexus with traditional navigable waters. Under the proposed rule these facilities would meet the definition of “waters of United States”. ACWA requests that groundwater rechargeClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

370 facilities and stormwater retention basins (including con struction, operations, and maintenance) be excluded from the proposed definition of “waters of the United States”. (p. 15)

Agency Response: With respect to stormwater control features, please see summary response at 7.4.4. Groundwater recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land: detention and retention basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater recycling, and water distributary

structur es built for wastewater recycling” or under the stormwater control feature exclusion at (b)(6), depending on the source of water. In effect, both have the same result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in

d ry land. Please note that the final rule does not change the applicability of the Underground Injection Control program for Class V injection wells or subsurface fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part

144.

Colorado Stormwater Council (Doc. #12981)

7.576 The CSC respectfully requests exclusions for MS4 features including roadside ditches, detention facilities, and detention outfalls. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.577 Excluded Best Management Practices . Waste tre atment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA are not WOTUS under the current rule. Language in the 2012 Nationwide Permits and Current Guidance clarifies that permanent Best Management Practices (BMPs) t hat are determined to be waste treatment systems under current regulations are not WOTUS. The Proposed Rule does not significantly change the language regarding the excluded waste treatment facilities. However, there is not a categorical exclusion for BMPs . Additional clarification is required to identify the types of facilities that should qualify for this exclusion. EPA, as the regulatory authority driving the construction of many BMPs under the MS4 Stormwater Program, should have a responsibility to make the jurisdictional status of these features clear in the rule language.

The CSC requests that any facility designed and operated to treat stormwater runoff to meet the requirements of the CWA or local regulations for managing

stormwater should be included in this exclusion . (p. 4)

Agency Response: Please see summary response at 7.4.4.

7.578 Furthermore, the existing regulations include exclusions for waste treatment facilities that are constructed to meet CWA requirements and are constructed in uplands. Currently,

this exclusion is inconsistently implemented or misinterpreted by USACE and EPA staff at the national offices and regional regulatory field offices level. Clearly, additional language is necessary to restore the intent of this exclusion.

The CSC requests that language b e included in the Proposed Rule to state that treatment of stormwater runoff from rural and urban settings conforms to theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

371 exclusion and that the exclusion applies to all necessary and constructed components of the stormwater treatment system. (p. 4)

Agency Response: Pleas e see summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #13613)

7.579 The broad definitions in the proposed rulemaking, especially the definition of Tributary in conjunction with Adjacent, can lead to the conclusion that MS4s would be deemed Waters of the US. The distinction between MS4s and WOTUS is critical and begs the question of how CWA Sections 303 and 402 will be applied to historic MS4s deemed to be WOTUS. NAFSMA requests that the EPA clearly define what is co nsidered to be an MS4 and what is determined to be a WOTUS, and reaffirm that an MS4 cannot be

WOTUS.

The proposed rulemaking is also silent on Low Impact Development (LID). Many LID features will fit the definitions outlined in the proposal and NAFSMA req uests that EPA explicitly exempt LID / green infrastructure features from WOTUS. The vague language in the proposed rule could contradict the existing waste water treatment exemption and inadvertently recapture MS4s, including treatment BMPs, back under WO TUS. Commingling MS4s and WOTUS will forcibly misapply costly compliance requirements intended for 2 receiving water bodies to the vast water collection and conveyance network. One of the many unanticipated consequences will be deterring the regulated

comm unity from implementing green infrastructure. NAFSMA acknowledges permit requirements for new construction activities, however, the maintenance of LID, green infrastructure, and MS4 features should all be explicitly exempt from WOTUS. (p. 1

- 2)

Agency Response: With respect to stormwater control features (including green infrastructure), please see summary response at 7.4.4.

Western Coalition of Arid States (Doc. #14407)

7.580 The agencies proposed rule also directly contradicts longstanding EPA guidance regarding the jurisdicti onal status of MS4s. In the 1990 preamble to the Phase I stormwater regulations, EPA made clear that storm water runoff into municipal sewers (roads, ditches, storm drains, etc.) is not a discharge of a pollutant int o a water of the

United States. 305 Recentl y, the agency also confirmed that MS4s are “by definition” not CWA navigable waters. 306 And under agency guidance issued by the Arizona Department of Environmental Quality for their §402 Construction General Permit project, the state asserts that, “Man

- made structures such as retention basins, storm sewer systems or city storm drains are not [CWA] receiving waters. 307

From interpretations made by both EPA and several state agencies under their respective stormwater programs, it is obvious that roadside ditches, especially those that are associated with a MS4 permit are not jurisdictional waters. They are, however, point

305 55 Fed. Reg. 47990, 47991, Nov. 16, 1990.

306 In a memo from Ann R. Klee, Former General Counsel, and Benjamin H. Grumbles, Former Assistant Administrator for Water, EPA, to Regional Administrators, August 5, 2005.

307 2013 Construction General Permit Fact Sheet, Page 17 of 71, June 3, 2013.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

372 sources under the CWA. And any person who discharges a pollutant to a roadside ditch or to a MS4 that, in turn, results in a discharge of pollut ants under §301(a), must obtain a permit. The physical act of discharging pollutants to a roadside ditch or MS4 does not automatically trigger CWA jurisdiction. This is a practice that has been enforced throughout the history of the CWA and needs to be ref lected in the Final Rule. (p. 12)

Agency Response: The commenters appears to misunderstand the meaning of the 1990 preamble discussion. Please see summary response at 7.4.4. Also see the Technical Support Document at Section I.C. T he EPA August 5, 2005 memorandum

from Ann R. Klee, and Benjamin H. Grumbles, does not address whether or not MS4s are jurisdictional. That memorandum addresses only the question of whether transfers of water from one jurisdictional waterbody to another without an intervening use of that water is an “addition” of pollutants under the CWA, and therefore is a discharge that requires an NPDES permit. While the 2005

memo randum did take note of the waste treatment system exclusion, an MS4 is not necessarily a waste treatment system , as explained in th e summary response at 7.4.4

. EPA statements about the waste treatment system exclusion in the definition of waters of the U.S. do not equate to statements about MS4s.

Georgia Municipal Association (Doc. #14527.1)

7.581 EPA and Army Corps should provide a clea r exemption for MS4s, other stormwater systems and features, and green infrastructure. GMA requests that EPA and the Corps clearly state that MS4s and the conveyances within these systems, as regulated under the NPDES program, are categorically excluded fr om the Waters of the U.S. jurisdiction.

7.582 MS4s are defined under 40 CFR 122.26(b)(8) as "a conveyance or system of conveyances, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- made channels, or storm drain s." MS4s and their component parts are waste treatment systems that manage and control pollutants conveyed by stormwater and currently regulated under CWA's Section 402{p), and therefore they should be categorically excluded from the scope of the "Waters o f the U.S." (p. 4)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dryland is appropriate. Please see summary response at 7.4.4.

Florida Rural Water A ssociation (Doc. #14897)

7.583 Community storm sewer systems (MS4s) should be excluded from the final rule in a similar manner as waste treatment systems. Some communities’ storm sewer system conveyance facilities include channels that may discharge to tradition al “Waters of the U.S.” (p. 4)

Agency Response: Please see summary response at 7.4.4.

Kentucky League of Cities (Doc. #15227)

7.584 The language in the proposed rule regarding MS4s is ambiguous at best. Without a specific exemption for MS4 systems including drains, roads, pipes, curbs, gutters, ditches and other conveyances that channel runoff, local governments will be left open forClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

373 potential litigation and citizen lawsuits in an effort to determine the jurisdiction of an

MS4 as a "Water of the U.S." This could create additional regulatory red tape as local governments and their MS4 systems could now be subject to 404 permitting and state water quality standards. (p. 2)

Agency Response: Please see summary response at 7.4.4.

NC League of Municipalities (Doc. #15358)

7.585 Many aspects of a MS4 system (ditches, channels, conveyance, etc.) are not explicitly exempt and could therefore be considered jurisdictional. This is a significant concern because if considered jurisdictional, these aspects of the MS4 system would be subject to Section 404 permits, a s well as state Water Quality Standards. The Section 404 permit process can be extremely cumbersome and expensive. Without a specific exemption for MS4 system components that channel runoff, EPA and the Corps open the door for litigation and citizen suits that could determine that these components are jurisdictional waters and thereby subject to Section 404 permitting and state Water Quality Standards. The League believes that MS4s and their component man

- made parts are systems that manage and control pollu tants conveyed by stormwater that are regulated under the NPDES program and should be categorically excluded from the definition of a “waters of the U.S.” (p. 2)

Agency Response: Please see summary response at 7.4.4.

South Carolina Association of Counties (Doc. #15573)

7.586 Sin ce stormwater management activities are not explicitly exempt under the proposed rule, the Counties are concerned that municipal conveyances and facilities for stormwater management could now be classified as a "water of the U.S." A number of South

Carolin a counties maintain large systems of Municipal Separate Storm Sewer System (MS4) infrastructure including ditches, channels, pipes, and gutters that may directly or indirectly flow into a "water of the U.S." and are therefore regulated under the CWA

Sectio n 402 stormwater permit program. There is a significant potential threat for counties that own MS4 infrastructure because they would be subject to additional water quality standards, including total maximum daily loads, if their stormwater ditches are

cons idered a "water of the U.S." Not only would the discharge leaving the system be regulated, but all flows entering the MS4 would be regulated as well. Even if the agencies do not initially plan to regulate an MS4 as a "Water of the U.S.," they may be forced to do so through CWA citizen suits, unless MS4s are explicitly exempted from the requirements. (p. 5)

Agency Response: Please see summary response at 7.4.4.

The United States Conference of Mayors et al. (Doc. #15784)

7.587 Under the NPDES program, all facilities which discharge pollutants from any point source into a "waters of the U.S." are required to obtain a permit, including local governments with Municipal Separate Storm Sewer Systems (MS4s). Some cities and

counties own MS4 infrastructure that flow into a "waters of the U .S." and are therefore regulated under the CWA Section 402 stormwater permit program. These waters,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

374 however, are not treated as jurisdictional waters since the nature of stormwater makes it impossible to regulate these features.

It is this distinction tha t creates a conflict between the stormwater program and the definition of "waters of the U.S." in the proposed rule and opens the door to citizen suits. Water conveyances including but not limited to MS4s that are purposed for and servicing public use are essentially a series of open ditches, channels and pipes designed to funnel or to treat stormwater runoff before it enters into a "waters of U.S." However, under the proposed rule, these systems could meet the definition of a "tributary," and thus be juris dictional as a "waters of the U.S." The language in the proposed rule must be clarified because a water conveyance cannot both treat water and prevent untreated water from entering the system.

Additionally, waterbodies that are considered a "waters of the U.S." are subject to state water quality standards and total maximum daily loads, which ar e inappropriate for this purpose. Applying water quality standards and total maximum daily loads to stormwater systems would mean that not only would the discharge le aving the system be regulated, but all flows entering the MS4 would be regulated as well. This, again, creates a conflict between the stormwater program and the definition of "waters of the U.S." in the proposed rule.

Request:

 Provide a specific exempti on for water conveyances including but not limited to MS4s that are purposed for and servicing public use from the "waters of the U.S."

definition. (p. 5)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific e xclusion for stormwater control features built in dryland is appropriate. Please see summary response at 7.4.4.

League of Oregon Cities (Doc. # 16546)

7.588 While the proposed rule maintains the exclusion for wastewater treatment systems, including treatment po nds and lagoons, the rule fails to exempt other types of treatment systems for both wastewater and stormwater. We ask the EPA and Corps to consider adopting an explicit exemption for stormwater treatment facilities and green

infrastructure investments for wastewater systems, This would include bioswales that filter water and discharge to downstream waterways, stormwater wet retention ponds, and engineered wetlands for wastewater facilities: Stormwater facilities and technologies are adequately regulated un der NPDES MS

- 4 permits, and engineered wetlands for wastewater treatment are additionally permitted through the NPDES program. Additional regulation or uncertainty around the permitting of such projects could serve as an unfortunate deterrent for projects that have proven to be highly effective and more environmentally beneficial than traditional g rey infrastructure investments. (p. 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

375 Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwate r control features built in dryland is appropriate. Please see summary response at 7.4.4.

Oregon Association of Clean Water Agencies (Oregon ACWA) (Doc. #16613)

7.589 1. Failure to specifically exclude stormwater facilities may discourage use of green

infrast ructure.

The primary concern for ACWA is the failure to categorically exclude MS

- 4 activities and facilities, especially green infrastructure solutions (including but not limited to swales, filter strips, detention ponds, constructed wetlands and similar vegetated facilities) from the definition of " waters of the United States." First, stormwater facilities are already subject to NPDES MS

- 4 permits, so regulatory controls and adequate oversight already applies to these discharges. Second, the backbone of E PA's push for green infrastructure, low impact development and stormwater retrofits

- - which ACWA

members have whole

- heartedly supported

- - is implemented, in large part, through the stormwater program. Quite frankly, subjecting stormwater facilities to additional oversight may result in project delays and cost increases, discouraging green infrastructure and making grey infrastructure a more viable alternative. Examples of the types of environmentally beneficial projects that may be discouraged by the ne w rule include, for instance,

1) retrofitting an existing piped stormwater system to construct a vegetated flow

- through bioswale that collects and filters storn1water runoff prior to discharging it to a downstream creek; and 2) daylighting an existing pi pe outfall in an existing developed area in combination with

the construction of a flow

- through vegetated swale to filter stormwater runoff prior to discharging to a downstream creek.

ACWA requests that EPA specifically exclude MS

- 4 activities and stormwat er facilities

from the definition of " waters of the United States " in Section 40 CFR 230.3(t) and related provisions.

This would be consistent with EPA's verbal representation that the proposed is not intended to make green infrastructure facilities juris dictional, stating that green infrastructure designed to meet CWA obligations or are intended to advance water quality goals are excluded. This needs to be made explicit in the final rule. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4. With respect to the projects mentioned by the commenter, the jurisdictional status of pipes structures depends on whether or not they were built in dry land and otherwise meet the

definition of jurisdictional waters.

Maine Muni cipal Association (MMA) (Doc. # 16630)

7.590 For example, municipal separate stormwater sewer system (MS4) infrastructure is currently covered by the waste treatment system exemption, but the new definitions could make MS4 stormwater drainage ditches ju risdictional under the CWA above existing permitted discharge points. This should be clarified; an EPA administrator has verbally committed to the MMA and Maine municipalities that existing permits will stand yet theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

376 proposed rule casts a shadow on the rel iability of that commitment. The definition of "tributary" ought to explicitly exclude MS4 stormwater conveyance and treatment systems that are already regulated under the National Pollutant Discharge Elimination System permit program.

MMA respectfully sug gests that your agencies consider removing non

- wetland waterbodies with a surface or shallow subsurface hydrologic connection to jurisdictional waters from the definition of "neighboring" and clarify that drainage ditches, catch basins, swales, settlement ponds and other low impact development infrastructure, as well as MS4 permitted discharges, continue to be exempt. (p. 2, 3)

Agency Response: With respect to stormwater control features, please see summary response at 7.4.4. Additionally, in order to provide more certain ty to the public, the rule does not include a provision defining neighboring based on shallow subsurface flow, though such flow may be an important factor in evaluating a water

on a case

- specific basis under paragraph (a)(8), as appropriate. See Preamble a t
Section III.

NC League o f Municipalities (NCLM) (Doc. # 17443)

7.591 Related to the issue above and also of specific concern to League members is the proposed rule's effect on Municipal Separate Storm Sewer Systems (MS4). Many aspects of a MS4 system (ditches, channels, conveyance, etc.) are not explicitly exempt and could therefore be considered jurisdictional. This is a significant concern because if considered jurisdictional, these aspects of the MS4 system would be subject to Section 404 permits, as well as state Water Quality Standards. The Section 404 permit process can be extremely cumbersome and expensive. Without a specific exemption for MS4 system components that channel runoff, EPA and the Corps open the door for litigation

and citizen suits that could determine that these components are jurisdictional waters and thereby subject to Section 404 permitting and state Water Quality Standards. The League believes that MS4s and their component man

- made part s are systems that manage and control pollutants con veyed by stormwater that are regulated under the NPDES program and should be categorically excluded from the definition of a "waters of the U.S.” (p. 2)

Agency Response: Please see summary response at 7.4.4.

Iowa League of Cities (Doc. #18823)

7.592 ...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 "Waters of the U.S." and thereby subject to Section 404 permitting and state Water Quality Standards.

EPA has stated repeatedly in public meetings and conference calls that it is not the

intention of the rule to further impact waste water and storm water systems. However, during the Point Source Stakeholder call on June 17 the Agency representatives stated that the rule could impact new waters within MS4 collection systems but could not provide details as to how these de terminations would be made. We understand that thisClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

377 discussion is likely focused on western cities but without more explanation this provides uncertainty for Iowa cities trying to determine the potential impact to their systems.

... Request for EPA Response : Plainly state how this rulemaking will Impact storm

- water collection systems and clearly exempt those parts of the systems that EPA does not wish

to include.

Example Language:

"(2) The following are not 'waters of the United States' notwithstanding wheth er they

meet the terms of paragraphs (1)(1)(i) through (viii) of this definition

- "(i) Waste treatment systems, including treatment ponds, lagoons, or Clean Water

Act regulated municipal separate storm sewer systems and the component conveyances within suc h systems regulated under the National Pollutant Discharge El imination System.” [designed to meet the requirements of the Clean Water Act.]”

(p. 3

- 4)

Agency Response: Please see summary response at 7.4.4.

Virginia Municipal Stormwa ter Association (VAMSA) (Doc. # 19517)

7.593 This proposed rule should clarify beyond all doubt that stormwater treatment and conveyance systems are not jurisdictional waters of the United States. A local government should not, for example, have to be concerned that a regulator or citizen suit plaint iff may assert that an NPDES permit is required to discharge stormwater into its MS4 system. Likewise, it should be clear that a Clean Water Act § 404 permit is not required to perform maintenance work on a BMP.

We understand that EPA and the Army Corps o f Engineers do not intend for stormwater management systems to be regulated as waters of the United States. The final rule should express this intent with a greater degree of clarity. To this end, MAMSA and VAMSA make the following two recommendations on t he proposed rule:

I. Add an Exclusion for Stormwater Treatment and Conveyance Systems

Many common features of MS4s and other stormwater treatment and conveyance

systems

— including many stormwater conveyance ditches and settling basins

— are expressly excluded from regulation under the proposed definition of waters of the United

States. Howeve r, the jurisdictional status of some stormwater management features is far from clear under the proposal. One example is constructed wetlands. These BMPs often are virtually indistinguishable from natural wetlands, notwithstanding that they are

constructed in uplands and carefully engineered to perform important stormwater management functions. It is not clear which, if any, exclusion would apply to constructed wetlands when they are used as BMPs. That ambiguity must be resolved in the final rule.

Stormwat er management systems are vitally important to public safety and water quality. They deserve an express and unambiguous exclusion in the rule. The exclusion should clarify that no purposefully constructed stormwater management feature should beClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

378 regulated a s a water of the United States. The exclusion should apply whether the feature is part of a larger stormwater system or is a standalone BMP, and irrespective of whether it is part of an MS4. The definition must also be broad enough to encompass all

purpose fully constructed stormwater conveyances and the many different and innovative types of stormwater BMPs. To meet these objectives, MAMSA and VAMSA propose that the following exclusion (italicized text) be added to the rule:

(2) The following are not ‘‘wat ers of the United States’’ notwithstanding whether they meet the terms of paragraphs (1)(i) through (vii) of this definition

. . . . (vi) Stormwater management systems or features, including all portions of a municipal separate storm sewer, constructed in uplands and designed or used for the purpose of collecting, treating, infiltrating, evaporating, or conveying stormwater.

This definition would add much needed clarity to the rule. (p. 2

- 3)

Agency Response: Please see summary response at 7.4.4.

Pennsylvania Chamber of Com merce and Industry (Doc. #14401)

7.594 The PA Chamber also requests that, should this rulemaking be amended, specific exemptions be made for stormwater conveyance and treatment systems. Otherwise, stormwater retention basins might be unnecessarily categorized as waters of the United States. The PA Chamber also requests that, should this rulemaking be amended, specific exemptions be made for stormwater conveyance and treatment systems. Otherwise, stormwater retention basins might be unnecessarily categorized as wa ters of the United States. (p. 4)

Agency Response: Please see summary response at 7.4.4.

California Building Industry Association et al. (Doc. #14523)

7.595 VIII. CWA 402 PROGRAM: MANY PERMITTED MS4 FEATURES WOULD BE RENDERED WATERS OF THE UNITED STATES, MAKING OPERATION OF

THE MS4, AS PERMITTED, ILLEGAL

Perhaps nowhere is the conflict and consequence

– intended or otherwise

– of the Proposed Rule more dramatically illustrated than in the context of the nation’s innumerable multiple separate storm sewer or “MS4” systems. Regulate d and permitted under Section 402 of the CWA, MS4s exist for the purpose of channelizing (as opposed to surface sheet flows) and transporting storm water runoff and the various pollutants and waste that inevitably get swept up into such flows.

MS4s are com posed of everything from highly engineered treatment facilities to pipes to

concrete

- lined channels to ditches. It is indisputable that with the broad and inclusive definitions of “tributary” and “adjacent waters” in the Proposed Rule, component features

o f MS4s nationwide will be deemed jurisdictional waters of the United States.

This is not a mere labeling exercise or circumstance without consequence. Quite to the contrary, the Code of Federal Regulations expressly prohibits utilization of a water of the United States as a conveyance feature for an MS4 system: “[I]n no case shall a stateClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

379 adopt waste transport . . . as a designated use for any water of the United States.” 40 C.F.R. § 131.3(i).

As discussed in greater detail below, in California, the water q uality control program is carried out by the State Water Resources Control Board and nine Regional Water Quality Control Boards. They implement both federal and state water quality control statutes and regulations primarily via adoption and enforcement of regional Basin Plans. It is in the Basin Plans that beneficial uses, water quality standards, and total maximum daily loads (TMDLs) are specified. The noted regulation, 40 C.F.R. § 131.3(i), prohibits Basin Plans from acknowledging waste transport as an ap propriate use for designated waters of the

United States.

But the very purpose of an MS4 is the capture and transportation of waste in storm water so that it is directed to appropriate treatment points and not allowed to sheet flow directly into receiving waters. Designating a component feature of a permitted MS4 system as a jurisdictional tributary renders operation of the MS4 illegal. In such an instance, you would have a system permitted under one provision of the CWA, Section 402, and at the

same time i ts operation would violate CWA Section 404 and section 131.3(i) of the regulations.

Accordingly, any component feature of a functioning MS4 system under CWA section 402 should be explicitly excluded from the Proposed Rule and recognized as non

jurisdiction al. ( p . 28

- 29)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4.

South Carolina Chamber o f Commerce (Doc. #14535)

7.596 ... Similarly, there should be no question that constructed stormwater control measures (SCMs) should be excluded from regulation except in very specific well

- defined

situations. SCM means man

- made structures, devices, measures, or B est Management Practices (BMPs) that are constructed for the purpose of water quality treatment, stormwater volume reduction, stormwater rate control, flood control, stormwater conveyance, or any combination of these purposes. SCM may be owned and operated by subdivisions of the state, such as municipalities, counties, or other governmental bodies; agencies of the state government such as Departments of Transportation; public business entities; or private business entities. Regardless of the owner/operator, SCM should be excluded from the definition of WOTUS except in the very limited circumstances

described below.

SCMs include the following man

- made features: constructed stormwater ponds, constructed stormwater wetlands, rain gardens, infiltration devices a nd structures, groundwater recharge facilities, stormwater reuse facilities, swales, bioswales, Low Impact Development structures and BMPs, pipes, streets, curbs, gutters, roadside ditches,

man

- made channels, storm drains, and other constructed stormwater control and conveyance structures, devices, and features.

SCMs that have been built at the approximate location of similar types of natural waters (such as stormwater ponds constructed at the location of natural lakes or natural wetlands,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

38 0 ditches construct ed at the location of natural streams or creeks, or stormwater channels constructed at the location of natural rivers) shall be excluded from this exemption and may be WOTUS. Natural lakes, natural ponds, and natural wetlands with stormwater conveyance pip es discharging to them and with constructed outlets shall be excluded from this exemption and may be WOTUS, although the stormwater conveyance pipes or channels are not WOTUS. (p. 4

- 5)

Agency Response: Please see summary response at 7.4.4.

Greater Houston Partnership (Doc. #14726)

7.597 GHP supports the exemptions outlined in the proposed rule, however, as described elsewhere in this letter, we suggest the rule include some additional explicit exemptions. GHP also urges that the rule be modified to explicitly include an exemption for stormwater detention and retention basins and related constructed drainage channels and drainage storm sewers designed for flood damage reduction or water quality improvement. (p. 4)

Agency Response: Please see summary response at 7.4.4.

Institute of Scrap Recycling I ndustries, Inc. (Doc. #15041)

7.598 2.3 Significance of Ditches, Pipes, and Storm Sewers Conveying Stormwater Discharges

as Waters of the U.S.

The possibility that the Proposed Rule could cause ditches, pipes, and storm sewers conveying regulated stormwater disc harges to be “waters of the U.S.” themselves and thus subject to additional CWA regulation would be a surprising regulatory outcome and is almost certainly not what Congress intended or expected via the CWA. If the purpose of identifying waters as “waters of the U.S.” is to be able to use the CWA to protect such waters, which are assumed to lack CWA protection in the first place, then it would be unnecessary to declare waters that are already regulated by the CWA (e.g., NPDES permits for stormwater discharg es) as “waters of the U.S.” because the CWA would already apply to them and enable their protection.

Making such ditches, pipes, and storm sewers and/or the regulated stormwater discharges conveyed by them “waters of the U.S.” would theoretically require, among other things, designating uses, setting water quality standards, and establishing total maximum daily loads for those ditches, pipes, and storm sewers and/or regulated stormwater discharges. Those would be pointless exercises and wastes of EPA’s limi ted resources, especially when CWA authority could have been used already to address any issues posed by such regulated stormwater discharges. Furthermore, such ditches, pipes, and storm sewers would become new or additional receiving waters, and such stor mwater discharges would effectively be their own receiving waters! This would be a particularly surprising

outcome.

Another potential surprising outcome is related to the storage of oil in containers at industry facilities. For this discussion, the facilit y has also developed and implemented an SPCC plan, as required by 40 CFR §112, to prevent the “discharge [of] oil in quantities that may be harmful, as described in part 110 of this chapter, into or upon the navigable waters of the United States...” (40 CFR §112.1(b)). An oil discharge is “harmful” if itClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

381 “(a) [v]iolate[s] applicable water quality standards; or (b) [c]ause[s] a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause[s] a sludge or emulsion to be deposit ed beneath the surface of the water or upon adjoining shorelines” (40 CFR §110.3). If the ditches, pipes, or storm sewers that convey stormwater discharges from the facility to receiving waters were “waters of the U.S.” under the proposed definition, then it would seem that any released oil that touches such ditches, pipes, or storm sewers would be “harmful”, whether or not the released oil would have affected or did affect the receiving water in a “harmful” way. Providing notice of a harmful release (40 CF R §110.3) would be required immediately, and the notice would potentially have to identify two or more receiving waters as being harmed (e.g., the pipe, ditch, and receiving water in flow order). This would be a surprising outcome.

To prevent these surpris ing regulatory outcomes and any resulting pointless and resource

consuming regulatory endeavors, the proposed definition should specifically exclude water discharges subject to NPDES permits (e.g., industrial stormwater discharges), which are already regul ated under the CWA, and any conveyances of such NPDES

permitted discharges (e.g., ditch, pipe, and storm sewer) from being or becoming “waters of the U.S.” subject to additional CWA regulation. (p. 7

- 8)

Agency Response: While the agencies may not agree with all points rai sed in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4. See also responses to SPCC comments at 12.5.

Federal StormWater Association (Doc. #15161)

7.599 S tormwater Program Implications

The proposed rule includes exemptions from the current regulations, but those exemptions are based on clarifications of the scope of federal jurisdiction in those prior rulemaking preambles. Unfortunately, the explanations fr om the preambles of prior rules are no longer valid because the agencies have changed the underlying basis for defining waters of the U.S. This oversight could alter the applicability of the exemptions to the agencies’ determinations regarding what is a ju risdictional water. And, while we agree that there are many waters that are not the primary focus of the CWA, the agencies have not established a rational basis for drawing the line between water that is federally regulated and water that is left to state jurisdiction or otherwise exempt. This has led to significant uncertainty.

Many facilities regulated by the CWA stormwater permit program rely upon various exemptions to ensure that existing treatment ponds, drainage areas, or other “water”

features are no t the regulated point of discharge into a water of the U.S. For example, current regulations include exemptions for waste treatment systems, including impoundments “designed to meet the requirements of the Clean Water Act.” While the

words of the wastewate r treatment exemption are not being changed, the agencies are proposing to add a comma before the “designed to” clause, thus applying that clause to all waste treatment systems, not just impoundments. This change would create significant uncertainty about the scope of the long

- standing waste treatment system exemption. The agencies must be clear that facilities with fully compliance stormwater treatment systemsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

382 today do not have parts of those systems deemed waters of the U.S. as a result of any

final rule resulting from this proposal.

Municipal Separate Storm Sewer Systems (or MS4s) play important roles in collecting and treating stormwater discharges from industrial and commercial operations. In addition, some large manufacturing plants have drainage syste ms that may mirror or are included in larger MS4 systems. The status of these drainage systems under the agencies proposed rule is critical, yet unclear.

In the comprehensive and exhaustive proposed rule, nowhere do the agencies mention

MS4s

– much less th e elaborate CWA regime that governs and regulates these systems across the United States. Municipal pollutant discharges from MS4s are one of three categories of stormwater permits aut horized by CWA Section 402(p). 308 For over 20 years, EPA has implemented C ongress’s plan for a “phased” approach to regulate municipal runoff based on the size of th e population served by an MS4. 309 NPDES permits must be obtained for all stormwater discharges from “large” and “medium” MS4s

un der so

- called “Phase 1” rules, 310 and fro m regulated “sm all” MS4s under Phase 2

rules. 311

The CWA’s overriding regulatory objective is to prohibit pollutant discharges without a permit

– such as a permit is sued under the NPDES program. 312 Storm water that conveys pollutants” 313 from a “point source” 314 in to waters of the U.S. are a type of “discharge” 315

308 42 U.S.C. § 1342(p)(2). The other categories are discharges associated with “industrial activity” (including land disturbing construction activities), and certain other discharges that, as EPA determines on a case

- by

- case basis, contribute to a water quality violation or other significantly pollutants to waters of the U.S.. See ED C , 344 F.3d at

841

- 842.

309 See 33 U.S.C. § 1342(p)(2)

- (4), (6) (two

- phase approach for stormwater regulation). MS4s can be “large,” “medium,” or “small.” Large MS4s serve a population of 250,000 or more (40 CFR § 122.26(b)(4)), while medium

MS4s serve a population of 100,000 or more but less than 250,000. ( Id . § 122.26(b)(7)). Large and medium MS4s have been subject to NPDES regulation since 1990 under the so

- called “Phase 1” rules, see 55 Fed. Reg. 47,990 (Nov. 16, 1990) (codified at 40 CFR pts. 122

- 124) . Small MS4s (defined id . § 122.26(b)(16) have been regulated since 1999 under the “Phase 2” rules, see 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified at 40 CFR pts. 9, 122, 123, and 124). The phased approach for the NPDES stormwater permit program, includin g MS4 discharge permits, is

discussed at EDC , 344 F. 3d at 841

- 842.

310 See, e.g. , 40 CFR §§ 122.26(a)(3), (4).

311 See, e.g., id . § 122.26(a)(5).

312 33 U.S.C. §§ 1311(a), 1342(a); see Envt’l Def. Ctr. v. EPA , 344 F. 3d 832, 841 (9th Cir. 2003) (“EDC”) (the

CWA “prohibits the discharge of pollutants from a ‘point source’ into the waters of the United States without a permit issued under the terms of the National Pollutant Discharge Elimination System ....”).

313 While Congress exempted most discharges “composed enti rely of stormwater” (i.e., not mixed with wastewater or other regulated discharges) (33 U.S.C. § 402(p)(1), it specifically identified certain MS4 and industrial stormwater pollutant sources for permitting to control pollutants discharged in stormwater fro m those point sources. The CWA defines “pollutants” to mean wastes like “dredged spoil, solid waste, ... sewage, garbage sewage sludge, ... chemical wastes, biological materials, ... heat, ... rock, sand, cellar dirt, and industrial, municipal and agricultural was te discharged into water.” 33 U.S.C. § 1362(6). See LA Cnty. Flood Control Dist. v. NRDC , 133 S. Ct. 710, 712 (2013) (“Because stormwater is often heavily polluted, ... the CWA and its implementing regulations require the operator of an MS4 ... to obtain a [NP DES] permit before discharging storm water into navigable waters”); EDC , 344 F.3d at 840

- 841 (“Storm sewer waters carry suspended metals, sediments, algae

- promoting nutrients (nitrogen and phosphorous), floatable trash, used motor oil, raw sewage, pesticid es, and other toxic contaminants ....”) In Virginia DOT v. EPA , 2013 WL 53741 (E.D. Va., Jan. 3, 2013), the court held that EPA did not have the statutory authority to establish a Total Maximum Daily Load (TMDL) based on “stormwater flow rate”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

383 that triggers NPDES permitting requirements. Regulations define MS4s as “a conveyance

or system of conveyances ... designed or used for collect ing or conveying storm

water.” 316 The component “conveyances” within a larger MS4 “system” collect and channel runoff through “roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- ma de channels, or storm drains.” 317 The MS4 definition closely tracks the separat e definition of “point sour ce” 318

– thus confirming that “’[s]torm sewers are established point sources subject to NPDES permitting requirements” within section 402’s regime. 319 All of the municipally owned or operated pipes, curbs, gutters, ditches, drains and other conveyances that co mprise an MS4 system collect and carry

stormwater to an “outfall”

– specifically designated by EPA’s regulations as a “point source” because it is “the point where a municipal separate storm sewer discha rges to [waters of the U.S.].” 320

EPA’s pronouncements in developing NPDES regulations have long distinguished between MS4s as “point sources” on the one hand, and the “waters of the United States” on the other hand. In the 1990 preamble to the Phase 1 regulations, EPA stated that

stormwat er runoff into municipal sewers (including MS4

- controlled ditches, roads, storm drains, etc.) is not a discharge of a poll utant into a waters of the U.S.

In the context of the Phase 1 regulations, a municipality commented to EPA “that neither the term ‘poi nt source’ nor ‘discharge’ should be used in conjunction with industrial releases into urban storm sewer systems because that gives the impression that such systems are navigable waters.” 321 EPA responded that it, “[A]lways addresses such

as a “surrogat e” or “proxy” for sediment. Id . at *2, *3. For purposes of the CWA, the court stated “sediment is a pollutant, ... but stormwater is not. “ Id . at *3. In short, stormwater is subject to NPDES permit requirements to the extent such runoff discharges “poll utan ts” into waters of the U.S.

314 “The term ‘point source’ means any discernible, defined and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well ... [or] container ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14); 40 CFR § 122.2.

315 The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source ....” 33 U.S.C. § 1362(12) (emphasis supplied). Thus, in the “discharge” definition, Congress dist inguished between “navigable waters” (defined to mean waters of the U.S. at 33 U.S.C. § 1362(7)) on the one hand, and “point sources” on the other hand. EPA regulations likewise specify that “discharge of a pollutant” includes “additions of pollutants into [waters of the U.S.] from ... discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which do not lead to a treatment works ...” 40 CFR § 122.2. Thus, “point sources” (like MS4s) serve the function to convey and carry pollutants, and are features from which pollutants are discharged into waters of the U.S. . But “point sources” are not themselves waters of the U.S. Congress did not give the Agencies broad authority over “point sources” as conveyances per se

-- bu t only conferred limited federal permitting authority over the activity of a “discharge” when a “point source” adds a pollutant to waters of the U.S..

See S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe , 541 U.S. 95, 109

- 110 (2004) (emphasizing that CWA perm its are required for “any addition” of pollutants to waters of the U.S., not the movement of pollutants within the same waterbody).

316 40 CFR § 122.26(b)(8) (emphasis supplied).

317 Id.

318 See supra note 15.

319 EDC , 344 F.3d. at 841 (citing NRDC v. Costle, 568 F.2d 1369, 1379 (D.C. Cir. 1977)).

320 40 CFR § 122.26(b)(9). A “major” MS4 outfall discharges from a single pipe with an inside diameter of 36
inches or more; or an inside diameter of 12 inches in the case where an MS4 receives stormwater from lands zoned for construction and other types of in dustrial activity. Id . § 122.26(b)(7).

321 Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

384 discharges as ‘disc harges through municipal separate storm sewers’ as opposed to ‘discharges to waters of the United S tates.” 322 In addition, implementing regulations require MS4 permit applicants to identify and list “water bodies” that receive discharges from municipal storm systems

– further making plain that EPA does not consider MS4s as jurisdictional water bodies und er the CWA. 323

But, as stated above, the overly broad proposed definition of “tributary” may improperly treat MS4s not as conveyance systems but as jurisdiction al waters. Pursuant to the proposed rule, a “tributary” is a waterbody that has a bed, bank and ordinary high water mark (OHWM), and contributes flow to waters that are used in interstate commerce, territorial seas, interstate waters, and their impoundment s. The agencies further explain that ponds and wetlands are “tributaries” as long as they also contribute flow. In addition, “tributaries” can be manmade; their flow may be ephemeral, intermittent, or perennial; and they may be broken by features suc h as p ipes, culverts and dams. 324

MS4 systems often include ditches and other manmade structures that have a bed, bank and OHWM. Moreover, as they are designed to convey and treat stormwater, MS4s will contribute flow (directly or indirectly) to traditionally juri sdictional waters. Under the proposed tributary definition, these common MS4 components

– owned and controlled by municipalities, and already subject to NPDES permit requirements

– could be confusingly and unnecessarily layered with more federal regulation as a jurisdictional water. Certainly, Congress never envisioned a circumstance where a “water of the U.S.”

could be located within a “point source.”

Further, CWA Section 303 requires States to adopt and submit to EPA water quality standards (WQSs) which “ consist of a designated use or uses for the w aters of the United

States ....” 325 If MS4s were waters of the U.S., then state

- developed and EPA

- approved WQSs would need to designate “uses” for storm sewer systems. However, “in no case shall a State adopt waste transport ... as a designated use for an y water of the United

States.” 326 Yet one of the very purposes of an MS4 and the ditches, drains and gutters within these systems is, in fact, to transport waste. It would be impossible to designate a WQS for an MS4 for any other reason but to convey and treat stormwater

– in plain violation of EPA’s regulations for water quality standards. 327

322 Id . (emphasis supplied). Indeed, the CWA’s “discharge” definition drives home the point that Congress did not intended MS4s and other permitted “point sources” to be waters of the U.S. See supra notes 15

- 16. F or purposes of these comments, the CORE Associations maintain that permitted MS4s are categorically not waters of the U.S. We do not address here whether, or under what circumstances, other “point sources” can ever be considered waters of

the U.S.

323 40 CFR § 122.26(d)(1)(iv).

324 See, e.g., id . at 22,202, col. 3 (“[T]ributaries that have been channelized in concrete or otherwise have been human altered, may still meet the definition of tributaries under the agencies’ proposed regulation so long as they

still contribute flow to an (a)(1) through (a)(4) water. The agencies’ proposed definition of tributary provides a non

exclusive list of the types of waters, natural, man

- altered, and man

- made, that may be tributaries: .... [P]onds, impoundments, canals, and ditch es not excluded in paragraphs (b)(3) or (4) of the proposed rule.”

325 33 U.S.C. § 1313; 40 CFR § 131.3(i).

326 40 CFR § 131.10(a).

327 In the context of industrial discharges into MS4s, EPA has explained that the discharger’s obligation to satisfy WQSs is “at the boundary of a State established mixing zone ... located in the receiving waters of the UnitedClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

385 Moreover, if an MS4 were somehow deemed a water of the U.S., then the MS4’s NPDES permit becomes an approval to discharge pollutants from one jurisdictional water into another jurisdictional water. Of course, Congress required permits for discharges from point sources into waters of the U.S.

– not for discharges from a water of th e U.S. to a

water of the U.S. 328 To avoid such an untenabl e result within the Act’s structure and the agencies’ own regulations, they should thus clarify that MS4s are not waters of the U.S.. Without such clarification, MS4s could be forced to break up their MS4 permit programs into smaller pieces so that each pe rmit is limited to each discharge into a water of the U.S., further confusing and adding complexity when the agencies’ intent was the opposite. (p. 7

- 11)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific ex clusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4. Also see the Technical Support Document at I.C.

National Association of Home Builders (Doc. #19540)

7.600 a. The Waste Treatment Systems Exclusion S hould Explicitly State that Municipal Separate Storm Sewer Systems (MS4s), Green Infrastructure, and Stormwater Management Facilities are Excluded.

The proposed rule’s waste treatment systems exclusion falls short of explicitly excluding municipal separate storm sewer systems (MS4s) and other infrastructure designed to treat stormwater. Off the record, the Agencies have stated that these features are not “waters of the United States,” but unofficial statements carry no regulatory weight. 329 Instead, specific language should be included in the regulation itself. (p. 105

- 106)

Agency Response: Please see summary response at 7.4.4.

Federal Water Quality Coalition (Doc. #15822.1)

7.601 2. Point source conveyances.

Water in a point source conveyance is not a water of the U.S. Rather, such water may be discharged to a water of the U.S. from the conveyance. That discharge may carry pollutants that are regulated under section 404 or 402 (or may be exempt by statute).

Ho wever, the water itself is not regulated until it is discharged and enters a channel that is

a water of the U.S. 330

States.” 55 Fed. Reg. at 48,037. That is, the industrial discharger’s obligation to satisfy WQSs does not pertain to such standards for the very storm sewer sy stem itself.

328 Moving pollutants within the same waterbody is not a “discharge” because no pollutants are added, and hence do not trigger CWA permitting obligations. See, e.g., LA Cnty. Flood Control Dist. v. NRDC , 133 S. Ct. 710, 733 (2013); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe , 541 U.S. (2004) (both cases quoting Catskill Mountains Chapter of Trout Unlmtd., Inc. v. New York , 273 F.3d 481, 492 (2nd Cir. 2001)).

329 EPA and U.S. Army Corps of Engineers, Questions and Answers

– Waters of the U.S. Proposal (Sept. 9, 2014), http://www2.epa.gov/sites/production/files/2014

- 09/documents/q_a_wotus.pdf (hereinafter, September 2014 Q & A).

330 See, e.g., National Pork Producers Council v. EPA , 635 F.3d 738 (5th Cir. 2011) (water in a lagoon is not regulated under the CWA until it is discharged); American Iron and Steel Inst. v. EPA , 155 F.3d 979, 996 (D.C. Cir.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

386 For example, EPA has long recognized that collected stormwater is not a water of the U.S. Thus, all of the municipally owned or operated pipes , curbs, gutters, ditches, drains, and other conveyances that comprise an MS4 system collect and carry stormwater to an “outfall,” which is specifically designated by EPA’s regulations as a “point source” because it is “the point where a municipal separate storm sewer discharges to [WOTUS].” 331 Industrial stormwater, including runoff from many construction sites, also is collected and discharged through an outfall. 332 If stormwater collection systems themselves were considered waters of the U.S., then EPA would have no authority to regulate the discharge from the collection system to a river or stream.181 Runoff into municipal and industrial stormwater collection systems would be unregulated nonpoint sources, and the collection systems themselves would be waters of the U.S. that merely

transfer water to another water of the U.S. The result would leave stormwater unregulated, undermining the objectives of Congress in section 402(p) of the CWA and reducing the protection of the environment.

A reproposal that limits tributaries to natural streams, as suggested above, would add certainty by making make it clear that conveyances, such as MS4 systems, are not waters of the U.S. As noted by one of the SAB Panel members, the agencies must distinguish

between infrastructur e and waters of the U.S. 333 (p. 67

- 68)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4.

Am erican Society of Civil Engineers (Doc. #19572)

7.602 Clarify Potential Jurisdiction Over Municipal Separate Storm Sewer Systems (MS4)

Nearly a third of the ASCE members surveyed on the proposed rule expressed significant concern about the potential impacts of t he rule on managing Municipal Separate Storm Sewer Systems (MS4s). Nowhere in the proposed rule is the term “MS4” mentioned, yet the rule applies to all sections of the Clean Water Act including the NPDES program. The agencies must address the relationship between MS4 stormwater programs and jurisdiction over ditches. We recommend that the final rule either expressly exclude

1997) (“The statute is clear: The EPA may regulate the pollutant levels in a waste stream that is discharged directly into the navigable waters of the United States through a "point source"; it is not authorized to regulate the pollutant levels in a facility's internal waste stream.”).

331 40 C.F.R. § 122.26(b)(9). A “major” MS4 outfall discharges from a single pipe with an inside diameter of 36

inches or more; or an inside diameter of 12 inches in the case where an MS4 receives stormwater from lands zoned for construction and other types of industrial activity. Id. § 122.26(b)(7). For a further discussion of the distinction

between MS4s and waters of the U.S. see the August 8, 2014 comments of the Coalition of Real Estate (“CORE”)

Associations.

332 According to EPA’s Phase 1 stormwater rules an “industrial activity” includes construction activity (such as land clearing, grading and excavation) on sites large r than five acres, but may also include land clearing activities on smaller lots in a common plan or development (like a subdivision) that is five acres or more. 40 C.F.R. § 122.26(b)(14)(x). Under the Phase 2 rules, “small construction activity” on sites between one and five acres must also obtain NPDES permit coverage for stormwater discharges. Id. § 122.26(b)(15).

333 See 40 C.F.R § 122.3(i) (the transfer of water from one water of the U.S. to another does not require a permit even if the water carries pol lutants).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

387 MS4s from jurisdiction under §(t) or provide additional guidance on their potential jurisdiction. Broadly read, the proposed rule MS4s could qualify as “waste treatment systems” under §(t)(1).

Many of our members manage MS4 systems. There is concern that if a MS4 becomes jurisdictional in addition to the current regulation under 402(p) that locations of outfalls, and therefore the point of regulation could change. MS4 permit holders would then not only be regulated at the point of discharge into a water of the U.S., but also when a pollutant initially enters the stormwater conveyance system. MS4 systems should continue to be regulated as point sources and not considered “waters of the U.S.” since they cannot be both. (p. 9 )

Agency Response: Please see summary response at 7.4.4.

Coalition of Real Estate Associations (Doc. #5058.2)

7.603 In the comprehensive and exhaustive Proposed Rule, nowhere do EPA and the Cor ps (the “Agencies”) mention the term “MS4”

– much less the elaborate Clean Water Act (“CWA”) regime that governs and regulates these systems across the United States. The CORE Associations believe that the Agencies must address the interplay between the

MS 4 stormwater program and WOTUS coverage. Indeed, the Proposed Rule’s “strong intent to provide as much certainty to the regul ated public and the regulators” 334 requires clarification on the jurisdictional status of MS4s. Moreover, while EPA’s r ecent “Ditch

t he Myth” campaign 335 states that the Proposed Rule “cuts through the red tape” to offer greater certainty and consistency on WOTUS determinations

– with an emphasis on

ditches

– nowhere does EPA specifically address ditches that are components in permitted M S4s. Respectfully, this is a glaring omission in the agencies’ otherwise exhaustive proposed treatment of WOTUS matters. Consistent with EPA Administrator McCarthy’s commitment to address key issues o f concern in the WOTUS context, 336 the jurisdictional stat us of MS4s and their component conveyances is the very kind of issue that warrants the agencies’ careful deliberation and clear explanation.

Accordingly, the Agencies should state in plain language whether CWA permitted MS4 systems and their component conv eyances are “in” or “out” of the scope of WOTUS. The CORE Associations suggest there is little room for gray area or case

- by

- case field determinations on this point. We believe that:

 “Waste treatment systems” have long been excluded from WOTUS jurisdiction under EPA and Corps regulations

– including the regulations implementing the permit program for the National Pollutant Discharge Elimination System (“NPDES”) authorized by CWA section 402. 337 MS4s are “waste treatment

334 77 Fed. Reg. at 22,189, col. 2.

335 See http://www2.epa.gov/uswaters/ditch

- myth

. 336 “I commit to you that if you raise an issue of concern, I will address it.” Administrator Gina McCarthy, Remarks at the Agricultural Business Council of Kansas City on Clean Water Proposal, As Prepared (July 10, 2014) (“McCarthy Remarks”). Available at http://yosemite.epa.gov/opa/admpress.nsf/8d49f7ad4bbcf4ef852573590040b7f6/aa42d63b31d4b1fa85257d1100661 68b!OpenDocument

. 337 S ee 40 C.F.R. § 122.2 (exclusions from WOTUS definition at subsection (b)(1)).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

388 systems” and, accordingly, should be ca tegorically excluded from the reach of

WOTUS.

 The CORE Association’s proposal to exclude MS4s from WOTUS jurisdiction as waste treatment systems is not to avoid CWA regulation. Rather, our proposal is intended to avoid double regulation. MS4s

– and the dra ins, roads, pipes, curbs, gutters, ditches and other component parts of these systems that channel runoff

– are regulated “point sources” that discharge pollutants conveyed in stormwater. Though section 402(p), Congress required MS4s to obtain NPDES permit s for stormwater discharges. 338 Thus, because MS4s and all identified components of these systems are already subject to NPDES permitting requirements, excluding them for WOTUS jurisdiction as waste treatment systems is wholly consistent with the Act’s objec tive to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 339

...



... Deeming permitted MS4s and their components as WOTUS would also contravene the plain language of the CWA and implementing regulations, and

lead to st rained and illogical regulatory results. For example, if a ditch within an

NPDES

- permitted MS4 system was somehow deemed jurisdictional, then a “water of the United States” would be located within a regulated “point source.” That result would upend the Act ’s entire regulatory structure. Similarly, if an MS4 was a WOTUS, then States and EPA would be compelled to establish water quality standards, criteria, and total maximum daily loads for municipally

- owned storm sewers. Nothing in the CWA’s language, struct ure, or legislative history supports such interpretations. These and other untenable results would be easily avoided by the Agencies’ express clarification that the exclusion for waste treatment systems captures MS4s.

Ditches are a common component in MS4s to convey and channel stormwater runoff. The Proposed Rule suggests that some ditches are excluded from WOTUS coverage, while other ditches are “tributaries” and thus within CWA jurisdiction. These comments do not opine on the jurisdictional treatment of ditches outside of permitted MS4s. But to the extent that ditches (and other system components) are mapped and identified as part of an MS4, and subject to an NPDES permit governing the MS4 of which they are a part, then such ditches (and components) shoul d not be WOTUS under the exclusion for waste

treatment systems. 340 The CORE Associations thus recommend modest

– but important

– changes to the Proposed Rule, as follows:

“(b) The following are not ‘waters of the United States’ notwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of this definition

—

338 33 U.S.C. § 1342(p)(1). See also id . § 1342(p)(3)(B) (establishing contours of “permit requirements” for “discharges from municipal storm sewers ....”

339 Id . § 1251(a).

340 This com ment letter focuses on regulated MS4s. However, there are other stormwater systems and conveyances not covered by NPDES permits that the Agencies should also exempt from the WOTUS definition. Certain CORE members will comment on those systems separately.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

389 “(1) Waste treatment systems, including treatment ponds, lagoons, or Clean Water Act regulated municipal separate storm sewer systems and the component conveyances within such systems. ” 341 [ designed to meet the requirements of the Clean Water Act.] ” 342 (p. 2

- 4)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please se e summary response at 7.4.4. Also see Technical Support Document at Section I.

7.604 II. MS4s AND THEIR COMPONENT CONVEYANCES SHOULD BE

EXPRESSLY EXCLUDED FROM WOTUS JURISDICTION.

The Proposed Rule is intended to offer “greater clarity to regulated entities as to whether [or not] individual water bodies are jurisdictional” under the CWA. 343 The Agencies’ aim of improved regulatory predictability is to “minimiz[e] the number of case sp ecific”

WOTU S determinations in the field. 344 Because of the “strong intent to provide as much certainty to the regulated public and the regulators as to which waters are and are not jurisdictional,” EPA and the Corps have specifically requested comment on “ which

waters should be d etermined non

- jurisdictional.” 345

In this regard, the CORE Associations respectfully urge the Agencies to clarify that WOTUS jurisdiction does not reach MS4s and the component conveyances that comprise these systems. Any final rule sh ould state that MS4s fall within the “waste treatment systems” exclusion from WOTUS, at 40 C.F.R. § 122.2 of the NPDES program regulations. 346 The CORE Associations thus recommend modest

– but important

– changes to the Proposed Rule, as follows:

“(b) The fo llowing are not ‘waters of the United States’ notwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of this definition

— “(1) Waste treatment systems, including treatment ponds, lagoons, or Clean Water Act regulated municipal separate storm sewer systems and the component pollutant conveyances within such systems. designed to meet the requirements of the Clean Water Act”

341 The last sentence of the “waste treatment systems” exclusion reads: “This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal areas in wetlands,) nor resulted from the im poundment of waters of the United States.” 40 C.F.R. § 122.2(b). Since 1980, EPA has “suspended” this last sentence. See 45 Fed. Reg. 48,620 (July 21, 1980); 48 Fed. Reg. 14,153 (Apr. 1, 1983). The Proposed Rule continues this longstanding suspension, with which the CORE Associations agree. See 79 Fed. Reg. at 22,268 col. 3.

342 The condition in the last clause that waste treatment systems be “designed to meet the requirements of the Clean Water Act” unnecessarily narrows the exclusion. Certain waste treatmen t systems are designed to meet state and local (as opposed to federal) requirements, but should still be excluded from the WOTUS definition. Some members of the CORE Associations will provide separate comments concerning this issue.

343 Proposed Rule, 79 Fed . Reg. at 22,188, col. 3.

344 Id.

345 Id . at 22,189, col. 2 (emphasis supplied).

346 Conforming changes should be made to all relevant WOTUS definitions in the “List of Subjects” in the Code of Federal Regulations set forth in the Proposed Rule at 79 Fed. Reg. 2 2,262, cols. 2

- 3.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

390 A categorical WOTUS exclusion of MS4s and their component conveyances is warranted for the following reasons:

A. MS4 s are “waste treatment systems”

– which have never been considered WOTUS. No lessened protections for aquatic resources would result by clarifying that MS4s are not WOTUS.

As explained above, MS4s are systems that treat wastes transported by stormwater. Th is fact is amplified by Congress’s direction that MS4s must control stormwater pollutants “to the maximum extent practicable” by deploying a suite of best management practices, control techniques, and engineering methods designed to treat pollutants in run off. 347 A
2005 memorandum from EPA’s General Counsel and Assistant Administrator for Water confirms that “waste treatment systems” are “by definition” not WOTUS. 348

Excluding MS4s from WOTUS jurisdiction will not lower protection of aquatic resources, because pollutant discharges from these systems are fully covered by the comprehensive and exhaustive NPDES regime. Direct or indirect discharges

– from MS4 outfall points into WOTUS

– must be permitted under all of the section 402 authorities and implementing reg ulations controlling additions of pollutants from point sources. 349
Furthermore, when an industrial activity results in a discharge into an MS4, EPA has “always addressed such discharges as discharges through [MS4s] as opposed to ‘discharges to wa ters of the United States’ ....” 350 EPA thus provides an exhaustive online library of resources for MS4 operators to detect, eliminate, and take action against “illicit discharges” into t heir systems. 351 Indeed, a municipal program to fully address “illicit discharges” is a prerequisite to Section 402 permit coverage for any municipal

storm sewer. 352 As EPA’s guidance manual for MS4s explains:

Provisions of the Clean Water Act (1987) require National Pollutant Discharge Elimination System (NPDES) permits for storm water disch arges. Section 402 (p)(3)(B)(ii) requires that permits for municipal separate storm sewers shall include a requirement to effectively prohibit problematic non

- storm water discharges into storm sewers. Emphasis is placed on the elimination of inappropriate connections to urban storm drains. This requires affected Agencies to identify and locate sources of non

- storm water discharges into storm drains so they may institute appropriate actions for their elimination. 353

347 33 U.S.C. § 1342(p)(3)(B).

348 Memorandum from Ann R. Klee, General Counsel, and Benjamin H. Grumbles, Assistant Administrator for Water, Environmental Protection Agency, to Regional Administrators, Regarding Agency Interpretation on Appl icability of Section 402 of the Clean Water Act to Water Transfer, at 18, n. 18 (Aug. 5, 2005) (available at http://www.epa.gov/ogc/documents/water_transfers.pdf ).

349 See supra notes 34

- 44.

350 Preamble to Phase 1 Rule, 55 Fed. Reg. 47,900, 47,997 (Nov. 16, 1990) (emphasis supplied).

351 See http://cfpub.epa.gov/npdes/stormwater/idde.cfm

. 352 See supra notes 40

- 44.

353 Center for Watershe d Protection, et al., “Illicit Discharge Detection and Elimination: A Guidance Manual for Program Development and Technical Assessments,” (October 2004) at p. i, available at http:// www.epa.gov/npdes/pubs/idde_manualwithappendices.pdfClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

391 In short: Because MS4s and their component p arts are waste treatment systems that manage and control pollutants conveyed by stormwater, they should be categorically excluded from the scope of WOTUS

. (p. 11

- 13)

C. Treating MS4s (and their component conveyances) as WOTUS would undermine longstanding E PA interpretations and practice.

EPA’s pronouncements in developing NPDES regulations have long distinguished between MS4s as “point sources” on the one hand, and the “waters of the United States” on the other hand. In the 1990 preamble to the Phase 1 regu lations, EPA stated that

stormwater runoff into municipal sewers (including MS4

- controlled ditches, roads, storm drains, etc.) is not a discharge of a pollutant into a WOTUS. In the context of the Phase 1 regulations, a municipality commented to EPA “that neither the term ‘point source’ nor ‘discharge’ should be used in conjunction with industrial releases into urban storm sewer systems because that gives the impression that such sy stems are navigable waters.” 354
EPA responded that it:

“[A]lways addresses suc h discharges as ‘discharges through municipal separate storm sewers’ as opposed to ‘discharges to waters of the United States.” 355

In addition, implementing regulations require MS4 permit applicants to identify and list “water bodies” that receive discharges from municipal storm systems

– further making plain that EPA does not consider MS4s as jurisdiction al water bodies under the CWA. 356

A contrary interpretation

– whereby an MS4 and its component conveyances could possibly be swept within the scope of WOTUS

– would yield unintended and unreasonable results. The proposed rule explains that the term “navigable waters” (def ined by statute to mean WOTUS) 357 “is used in a number or provis ions of the

CWA” 358 including “the water quality and total maximum daily load prog rams under section 303, and the section 401 state water quality certification process.” Application of these programs to MS4s and their conveyances

– a result that would follow upon deeming these storm sewer systems as WOTUS

– would lead to strained agency interpretations and likely cause increased litigation.

For example, section 303 requires States to adopt and submit to EPA water quality standards (“WQSs”) which “consist of a designated use or uses for the w aters of the

United States ....” 359 If MS4s were WO TUS, then State

- developed and EPA

- approved WQSs would need to designate “uses” for storm sewer systems. However, “in no case shall a State adopt waste transport ... as a designated use for an y water of the United

354 Id. [ SWANCC , 531 U.S. at 173. ]

355 Id . (emphasis supplied). Indeed, the CWA’s “discharge” definition drives home the point that Congress did not intended MS4s and other permitted “point sources” to be WOTUS. See supra notes 15

- 16. For purposes of these comments, the CORE Associations maintain that permitted MS4s are categorically not WOTUS. We do not address here whether, or under what circumstances, other “point sources” can ever be considered WOTUS.

356 40 C.F.R. § 122.26(d)(1)(iv).

357 33 U.S.C. § 1362(7) (“The term ‘navigable waters’ means the waters of the United States, including the territorial seas”).

358 79 Fed. Reg. at 22,191, col. 2.

359 33 U.S.C. § 1313; 40 C.F.R. § 131.3(i).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

392 States.” 360 Yet one of the very purposes of an MS4 and the ditches, drains and gutters within these systems is, in fact, to transport waste. It would be impossible to designate a WQS for an MS4 for any other reason but to convey and treat stormwater

– in plain violation of EPA’s regulations for water q uality standards. To avoid such an untenable result within the Act’s structure and the Agencies’ own regulations, EPA and the Corps should thus clarify that MS4s are not WOT US. 361

Furthermore, WQSs contain both designated uses for a waterbody and water quali ty criteria (“WQC”) whi ch protect the designated use. 362 If a waterbody is not meeting its WQC then the state must develop a pollutant

- specific total maximum daily load (“TM DL”) for the waterbody. 363 Interpreting the CWA in a manner that construes MS4s

to be W OTUS would force states to develop WQC and TMDLs for storm systems designed to treat pollutants. Aside from the sizeable resource commitment (which the states would bear) to develop WQCs and TMDLs for every MS4 and all of the ditches, drains, and pipes tha t comprise these systems, such an interpretation adds unnecessary layers of regulation. The MS4’s section 402 permit would already regulate pollutants that the operator may discharge from the storm sewer into receiving waters; concurrently, any WQC and TMD L would regulate pollutants entering the MS4 from third party releases, and pollutant loads within the system itself. Because any WQC and TMDL would control pollutant levels in the MS4, there would be no need for an NPDES permit because the pollutant level s within the MS4 would be at the same levels allowed for the discharge into the receiving water.

Moreover, if an MS4 were somehow deemed a WOTUS, then the MS4’s NPDES permit becomes an approval to discharge pollutants from one ju risdictional water into ano ther jurisdictional water. Of course, Congress required permits for discharges from point

sources into WOTUS

– not for discha rges from a WOTUS to a WOTUS. 364 Such an absurd result can be avoided by excluding MS4s from the definition of CWA jurisdictional waters.

The specific, detailed statutory and regulatory provisions regarding the treatment of MS4s as NPDES “point sources” must trump the more general provis ions that define

“waters of the United States.” 365 Under the rule of statutory construction that specific provisions supersede general ones, the Agencies should avoid any possible regulatory

360 40 C.F.R. § 131.10(a).

361 In the context of industrial discharges into MS4s, EPA has explained that the discharger’ s obligation to satisfy WQSs is “at the boundary of a State established mixing zone ... located in the receiving waters of the United States.” 55 Fed. Reg. at 48,037. That is, the industrial discharger’s obligation to satisfy WQSs does not pertain to

such st andards for the very storm sewer system itself.

362 40 C.F.R. § 131.11(a).

363 33 U.S.C. § 1313(d).

364 Moving pollutants within the same waterbody is not a “discharge” because no pollutants are added, and hence do not trigger CWA permitting obligations. See, e.g., LA Cnty. Flood Control Dist. v. NRDC , 133 S. Ct. 710, 733 (2013); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe , 541 U.S. (2004) (both cases quoting Catskill Mountains Chapter of Trout Unlmtd., Inc. v. New York , 273 F.3d 481, 492 (2nd Cir. 2001)).

365 “However inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment.” Fourco Glass Co. v. Transmirra Prods. Corp. , 353 U.S. 222, 228 (1957) (internal quotes omi tted).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

393 interpretation that MS4s and their component conveyances are someho w penumbral to the WOTUS definition. The CORE Associations thus request EPA and the Corps to state clearly that MS4s

– and the conveyances within these systems

– as regulated under the NPDES program are categorically excluded from WOTUS jurisdiction. (p. 1 5

- 17)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4. Also please see the Technical Supp ort Document at Section I.3. with respect to “point source” and

other legal issues.

7.605 III. CONCLUSION

The CORE Associations submit that MS4s should be categorically excluded from the

definition of WOTUS because:

 For decades, the Agencies have interpreted the CWA to exclude “waste treatment systems” from WOTUS coverage. MS4s and the ditches, pipes, ponds and other conveyances that make up these storm sewer systems are indeed “waste treatment systems.” The Agencies should accordingly clarify that their longstan ding jurisdictional exclusion captures MS4s.

 The WOTUS exclusion for MS4s should apply to storm sewer systems and their components that are mapped, identified and governed by a duly issued section 402 permit for the discharge of pollutants. Aquatic resourc es are thus fully protected, and the CWA’s objectives are furthered, by virtue of the panoply of NPDES program requirements that apply to MS4 permits...

 ...Somehow deeming MS4s as jurisdictional WOTUS would disserve key definitions of, and upset the overall st ructure of, the CWA and the Agencies’ own regulations. For example, EPA’s obligations to establish water quality standards, criteria, and TMDLs would prove to be illogical and unworkable as applied to MS4s and the conveyances within these systems.

 Express exclusion of MS4s from the WOTUS rule is warranted to provide regulatory clarity and prevent improper interpretations that municipal storm sewers and their components could somehow be deemed jurisdictional “tributaries” or “adjacent waters.” (p. 19

- 20)

Agency Response: Whi le the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dryland is appropriate. Please see summary response at 7.4.4.

Southpace Properties, Inc. (Doc. #6989.1)

7.606 R ather than labeling ditches as “waters of the U.S.,” the agencies should rely on existing CWA programs which require permits for discharges to navigable waters and stormwater management systems rather than labeling ditches themselves as jurisdictional wate rs. In addition to their necessary function to channel water away from dry features on commercial properties, ditches are a common component in Municipal Separate Stormwater Systems (MS4s). The proposed rule suggests that some ditches are excludedClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

394 from WOT US coverage, while other ditches are “tributaries” and thus within CWA jurisdiction. To the extent that ditches (and other system components) are mapped and identified as part of an MS4, and subject to a National Pollutant Discharge Elimination System (NPD ES) permit governing the MS4 of which they are a part, then such ditches (and components) should not be WOTUS. (p. 2)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control featu res built in dryland is appropriate. Please see summary response at 7.4.4.

Kolter Land Partners and Manatee

- Sarasota Building Industry Association (Doc. #7938.1)

7.607 ...the exclusion for waste treatment systems and non

- wetland swales is not clear in that it

f ails to encompass the full an

- ay of green infrastructure devices (e.g., rain gardens), stormwater treatment systems (e.g., MS4s) and other features installed on private property that gain little benefit from federal oversight. (p. 2)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4.

Lydig Construction Inc. (Doc. #14147)

7.608 I also oppose any regul atory language that would extend CWA jurisdiction to stormwater control basins and ponds of any size or function that ultimately drain to an otherwise regulated ‘water of the United States.’ It is unclear whether or not such stormwater controls would quali fy for any of the exclusions in the proposal. On a majority of regulated construction sites, current NPDES permit requirements have led contractors to build temporary basins to hold rainwater that has ‘run off’ the surrounding jobsite and slowly release it to receiving waters via an outlet control structure and/or under

- drainage system. EPA is now pushing cities to require that contractors build permanent structural controls to treat, store, and infiltrate runoff onsite before it enters the municipal storm sewer system. These stormwater control systems would, under this proposed regulation, become ‘waters of the United States,’ forcing construction site operators to create federally jurisdictional waters on their property to meet other requirements of the CW A. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Associated Gen eral Contractors of America (Doc. #14602 )

7.609 V. MS4s Are Point Sources, Not WOTUS

Summary: AGC maintains that MS4s should not be WOTUS, as they are already regulated under CWA Section 402 NPDES per mits. To avoid double regulation, and shifting the point of compliance from the MS4 outfall to the roads and ditches at the system’s periphery, MS4’s should be categorically excluded from being WOTUS.

MS4s play important roles in collecting and treating st ormwater discharges from industrial and commercial operations. In the entire proposed rule, nowhere do the agencies mention MS4s

— much less the elaborate CWA regime that governs andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

395 regulates these systems across the United States. Regulations define MS4s as “a

conveyance or system of conveyances ... designed or used for collecting or conveying

storm water.” 366 The component “conveyances” within a larger MS4 “system” collect and channel runoff through “roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- ma de channels, or storm drains.” 367

As stated in Section III above, AGC i s very concerned that the overly broad proposed definition of “tributary” may improperly treat MS4s not as conveyance systems, but as jurisdictional waters. AGC urges the agencies to clarify that WOTUS jurisdiction does not reach MS4s and the component con veyances that comprise these systems, as further detailed in the comment letter already submitted by the Coalition of Real Estate Associations (an informal group that includes AGC).

• Lead to illogical results

Classifying any components of an MS4

— but dit ches and stormwater control basins/ponds, in particular

— as WOTUS would yield illogical results (see related discussions in Sections III and VI). As explained other sections of this letter, maintaining the conveyances within the MS4 (including clearing ve getation, removing silt/sediment, and stabilizing banks, draining ponds, etc.) would require a Section 404 permit. Stormwater discharges into the ditches may require Section 402 permitting or, in combination with other discharges, trigger area

- wide TMDL re quirements under Section

303.

Specifically, if MS4s were WOTUS, then states would need to develop EPA

- approved WQSs and “designate uses” for storm sewer systems, as well as water quality criteria (WQC) th at protect the designated use. 368 If a waterbody is no t meeting its WQC then the state must develop a pollutant

- specific total maximum daily load (TMDL) for the waterbody. 369 Interpreting the CWA in a manner that construes MS4s to be WOTUS would force states to develop WQC and TMDLs for storm systems designed t o transport stormwater. Moreover, if an MS4 were somehow deemed a WOTUS, then the MS4’s NPDES permit becomes an approval to discharge pollutants from one jurisdictional water into another jurisdictional water. Of course, Congress required permits for disch arges from point sources into WOTUS

— not for discha rges from a WOTUS to a WOTUS. 370
It is also important to note that MS4 operators have NPDES permit liability for implementing their stormwater programs to control their point source discharges into

WOTUS. I f the MS4 system itself becomes “waters of the United States,” then the point of compliance would shift from the nearby surface water to the ditch on the side of the roadway. For reasons such as these, the structure of CWA Section 402 and EPA’s regulations make clear that MS4s are point sources and not WOTUS.

366 40 C.F.R. § 122.26(b)(8) (emphasis supplied).

367 Id.

368 40 C.F.R. § 131.11(a).

369 33 U.S.C. § 1313(d).

370 Moving pollutants within the same waterbody is not a “discharge” because no pollutants are added, and hence do not trigger CWA permitting obli gations. See, e.g., LA Cnty. Flood Control Dist. v. NRDC , 133 S. Ct. 710, 733 (2013); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe , 541 U.S. (2004) (both cases quoting Catskill Mountains Chapter of Trout Unlmtd., Inc. v. New York , 273 F.3d 481, 492 (2nd C ir. 2001)).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

396 Excluding MS4s from WOTUS jurisdiction will not lower protection of aquatic resources, because pollutant discharges from these systems are fully covered by the comprehensive and exhaustive NPDES regime . Direct or indirect discharges

— from MS4 outfall points into WOTUS

— must be permitted under all of the Section 402 authorities and implementing regulations controlling additions of pollutants from point

sources.

Any agency interpretation or field determ ination that subjects MS4s and the conveyances within them to WOTUS jurisdiction would enormously disrupt state and local government programs and responsibilities to maintain, manage, and treat stormwater discharges under Section 402(p). It would federaliz e a vast network of storm sewer systems within state and local control

— plainly upsetting the goal and policy of federal

state balance that Congress announced in CWA Section 101(b). (p. 11

- 12)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4. Also please see the Technical Support Document at Section I.C.

7.610 VI. Stormwater Control Basins & Pond s

Summary: AGC is opposed to any regulatory language that would extend CWA jurisdiction to stormwater control basins and ponds that contractors build to satisfy

another section of the Clean Water Act

— for example, the NPDES permitting requirements within Section 402’s regime. It is unclear whether or not such stormwater controls would qualify for any of the exclusions in the proposal. On a majority of regulated construction sites, current NPDES permit requirements have led contractors to build temporary or permanent basins to hold rainwater that has “run off” the surrounding jobsite and slowly release it to receiving waters via an outlet control structure and/or

under

- drainage systems. EPA is now pushing cities to require contractors to build

permanent stru ctural controls to treat, store, and infiltrate runoff onsite before it enters the municipal storm sewer system. Increasingly common biofiltration and bioretention

systems

— all designed to control the velocity and volume of stormwater and settle out parti cles to reduce pollutant discharges

— could become WOTUS. Under the proposal, construction site operators would be forced to create federally jurisdictional waters on their property to meet other requirements of the CWA.

Under the proposed rule, CWA jurisd iction would arguably extend to stormwater control basins and ponds of various sizes and function that ultimately drain to an otherwise regulated WOTUS. This result would stem from the agencies’ finding that all “tributaries” and “adjacent waters including wetlands” have a significant nexus to WOTUS by definition and are thus jurisdictional by rule. Specifically, as discussed above, the proposed rule defines “tributary” based on some evidence of flow, however indirect, to a traditional navigable water, inte rstate water, or territorial sea. The origin of the water, whether natural, man

- altered, or manmade, expressly does not matter. Similarly, waters and wetlands adjacent to tributaries (e.g., a seasonally wet pond or swale) are categorically jurisdictional. An “adjacency” determination includes waters and wetlands with a confined surface or shallow subsurface connection to jurisdictional water. The agencies’ proposed “other waters” category would give the agencies theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

397 discretion to capture any wet feature (ev en geographically isolated ones) that cannot be found jurisdictional under the “tributary” or “adjacent water” categories, as discussed in

Section VII below.

• NPDES Program calls for contractors to build basins, ponds

EPA’s NPDES permit for active constru ction sites (which serves as a model for the nation) requires contractors to “design, install, and maintain erosion and sediment controls that minimize the discharge of pollutants from earth

- disturbing activities.” Contractors also are required to “control stormwater volume and velocity” to minimize pollutant runoff and streambank/channel erosion. On a large majority of regulated construction sites, these requirements have led contractors to build temporary basins to

hold rainwater that has “run off” the su rrounding jobsite and slowly release it to receiving

waters via an outlet control structure and/or under

- drainage systems. At present time, ponds and basins are the most reliable and proven way of containing sediment

- laden

water on a construction site. Pon ds and basins are a “best management practice” (BMP) to protect surface water. (Prior to 2012, the federal Construction General Permit mandated sediment basins on all construction sites where the total disturbed drainage area at any given time was 10 acres or more.) After the soil disturbance (earth

- moving) phase of the project, it is quite common for the property owner or contractor to clean out and modify the basin to function as a permanent stormwater management pond for the completed site, either as a d etention pond or a retention pond. Additionally, the permanent pond must be maintained on a life

- cycle basis to ensure that it is functioning properly.

It is worth noting that EPA’s 2012 Construction General Permit for Stormwater 371 does

not consider “stormw ater control features” (MS4s and parts thereof) as “surface waters” for purposes of the 50

- foot natural buffer requirement.

Recently, there has been an explosion in the number of ponds dotting the suburban landscape. Most have been created to satisfy local government requirements to retain/infiltrate stormwater discharges (onsite) at newly developed and redeveloped sites. Requirements that municipalities (MS4s) use so

- called “green infrastructure” as part of their stormwater management programs are becoming more common in local and state permitting procedures and regulations, admi nistered by the NPDES program. 372

Most filtration basins have under

- drain systems; they may also have outlet control structures and emergency spillways, depending on the variety and p urpose. The under

drain gradually dewaters the sand bed and discharges the runoff to a nearby channel, swale, or storm sewer. Infiltration basins would be the only instance where all outflow goes back into the ground. This type of system does not normally have a structural outlet

371 See http://www.epa.gov/npdes/pubs/cgp2012_finalpermit.pdf (CGP Part 2.1.2.1 Provide Natural Buffers or Equivalent Sediment Controls

– noting that EPA does not consider stormw ater control features (e.g., stormwater conveyance channels, storm drain inlets, sediment basins) to constitute “surface waters” for the purposes of triggering the requirement to comply with this Part).

372 See http://cfpub2.epa.gov/npdes/stormwater/menuofbmps/index.cfm?action=browse&Rbutton=detail&bmp=66&minme

asure=4

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

398 to discharge runoff or an under

- drain system. It is very challenging to apply on most sites, however, because it is only effective in relatively small drainage areas with permeable soils. Therefore, infiltration basins are typicall y combined with an extended detention basin to provide additional runoff storage for both stormwater quality and quantity management. Detention basins, which need to be cleaned out on a regular basis, trap sediment and deleterious maters before entering th e infiltration system, thereby extending the life of the system.

Under the proposed regulatory framework outlined above, there would be many opportunities for Corps field staff and EPA inspectors to assert federal control over ephemeral ponds and basins th at were built to serve as stormwater control devices, merely because those devices drain (e.g., via a shallow groundwater flow or a seasonally wet ditch that may flow a great distance, etc.) to a navigable water only in storm events.

• Not otherwise exempt

The proposal excludes the following from the “waters of the United States” definition:

o Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.

o Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.

Unfortunately, these exclusions are too amorphous to address AGC’s serious concerns. It is highly questionable and open to inter pretation whether or not stormwater control basins/ponds would meet the criteria for these listed exclusions on a consistent or

occasional basis.

Stormwater control basins/ponds are designed to help protect areas from flooding by reducing how fast runoff e nters nearby surface waters. Most ponds (and certainly temporary or permanent sediment basins) also function to trap pollutants in runoff such as sediment nutrients and metals. Pollutant reduction is achieved through settling, capture by indigenous wetland plans and vegetation, and filtration through soil. The basins/ponds must be cleaned out in order to remove the captured pollutants. It is unclear whether stormwater control basins/ponds would qualify as “waste treatment systems.” No “treatment” (chemical or otherwise) is typically occurring, as is the case with other waste management programs. What is more, stormwater (e.g., rain, snowmelt) is not the same as wastewater (sewage); each is covered under a separate NPDES permit program.

Moreover, the basins/p onds that contractors build on active construction sites, and later modify to serve as permanent stormwater control structures, are not “used exclusively for... settling basins.” While all types of “green infrastructure” effectively retain and

infiltrate rai nfall, these practices also can simultaneously help filter air pollutants, reduce energy demands, mitigate urban heat islands, provide wildlife habitat and sequester carbon while also providing communities with aesthetic and natural resource benefits. 373

• L ead to illogical results

373 See http://water.epa.gov/infrastructure/greeninfrastructure/index.cfm

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

399 Extending CWA jurisdiction to stormwater control basins and ponds would lead to illogical results (see related discussions in Section V). In meeting the goals of the NPDES program, contractors build stormwater control basins and po nds to protect WOTUS both during construction and for permanent, long

- term water resource protection. Does EPA intend to regulate these features as WOTUS, or are they intended to be exempted? As explained above, AGC finds that they would not meet the propo sed exemption criteria on

a consistent or occasional basis.

Stormwater control basins/ponds are a widely used BMP that must be designed, constructed and maintained to function properly. Basin/pond maintenance is often dictated by local laws and is necessar y to prevent downstream pollutant loadings, erosion, and flooding. Yet, under the proposal, contractors and property owners/managers would need to obtain a Section 404 permit to authorize them to repair outlet structures, clear vegetation, remove sediment, stabilize the pond banks, or drain the pond. (They would also need a Section 404 permit to convert a temporary basin to a permanent pond.) In addition, the stormwater discharges into the basin/pond may require a separate NPDES Section 402 permit. Further, CWA Section 303 requires states to adopt and submit to EPA water quality standards (WQSs) which “consist of a designated use or uses for the

w aters of the United States ....” 374 If stormwater control basins/ponds were WOTUS,

then state

- developed and EPA

- appro ved WQSs would need to designate “uses” for those basins/ponds. In turn, the state would need to develop a pollutant

- specific TMDL for any basin/pon d that failed to meet its use. 375

Where maintenance of stormwater BMPs is hampered, the BMPs may fail to funct ion as designed. Flood control structures will lose flood storage, and infiltration BMPs installed for water quality will fail to treat runoff as designed, which could in turn cause MS4s to be out of compliance with their MS4 permits. What is more, in a ca se where the basin/pond fails to meet a CWA water quality standard, a construction contractor in a design

- build contract scenario could be held responsible for design or construction flaws

or defects.

Some state NPDES construction stormwater permits requir e contractors to direct turbid

or sediment

- laden waters to a temporary or permanent sedimentation basin or pond. For example, the Minnesota Construction Stormwater Discharge General Permit (MNR 100001, issued August 1, 2013) states: “The permittee(s) must discharge turbid or

sediment

- laden waters related to dewatering or basin draining (e.g., pumped discharges, trench/ditch cuts for drainage) to a temporary or permanent sedimentation basin on the project unless infeasible.” See Exhibit 1 below.

Finally, if construction activity in/around a basin/pond causes a sheen on surface (possibly because of fuel and fluid in earth moving equipment), the construction site operator would need to immediate report an oil spill to the National Response Center

— pursuant to EPA rules in place for a discharge of oil into waters of the United States. (p.

12

- 16)

374 33 U.S.C. § 1313; 40 C.F.R. § 131.3(i).

375 33 U.S.C. § 1313(d).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

400 Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4. See also responses to SPCC comments at 12.5.

NAIOP Commercial Real Estate Development Association (Doc. #14621)

7.611 5. §328.3(b)(1) MS4s.

The proposed definitions of tributary could be construed to include municipal separate storm sewer systems (MS4s) and their components. The Agencies’ overly broad definition of “tributary” may improperly treat MS4s as WOTUS and clarification is needed to proclaim that MS4s are excluded from jurisdictional coverage. EPA and the Corps propose that any waterbody that meets the definition of a tributary is “by rule” a WOTUS. Pursuant to the Proposed Rule, a “tributary” is a waterbody that has a bed, bank and ordinary high water mark (OHWM), and contributes flow to water s that are used in interstate commerce, territorial seas, interstate waters, and their impoundments (“(1)

- (4) waters”).

Under this proposed definition, MS4s and their system components could be deemed jurisdictional WOTUS. MS4 systems often include ditches and other manmade structures that have a bed, bank and OHWM. Moreover, as they are designed to convey and treat stormwater, MS4s will contribute flow (directly or indirectly) to the categories of so

called (1)

- (4) waters. These common MS4 components are a lready subject to National Pollutant Discharge Elimination System (NPDES) permit requirements and could be confusingly and unnecessarily layered with more federal regulation as a WOTUS.

EPA and the Corps should thus clarify for its field offices, state and local governments, and the regulated community that MS4s and their component conveyances are not considered WOTUS under the proposed rule.

The following change is recommended:

“(b) The following are not ‘waters of the United States’ notwithstanding whethe r they meet the terms of paragraphs (a)(1) through (7) of this definition

— “(1) Waste treatment systems, including treatment ponds, lagoons, or Clean Water Act regulated municipal separate storm sewer systems and the component conveyances within such syst ems.” (p. 4)

Agency Response: Please see summary response at 7.4.4.

Vulcan Materials Company (Doc. #14642)

7.612 Add language to the rule that clearly exempts from jurisdictional status water management systems, including associated collection, conveyance, and treatment systems that are permitted under NPDES or delegated state storm water and/or process water discharge permitting authority. Similarly, water management systems associated with zero discharge facilities should be clearly exempted from jurisdictional status permittin g authority. Similarly, water management systems associated with zero discharge facilities should be clearly exempted from jurisdictional status. (p. 4

- 5)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

401 Agency Response: With respect to stormwater control features, please see summary response at 7.4.4. S ee also summary response at 7.4.2

Maryland Chapters of NAIOP (Doc. #15837)

7.613 We are among those concerned that the overly broad definition of tributary may improperly identify channels and conveyances, environmental site design (ESD) features and structures that are subject to NPDES or MS4 permits as regulated waters and request

that a the final rule contain a clarification that stormwater and ESD structures are not WOTUS. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Ames Construction, Inc. (Doc. #17045)

7.614 I also oppose any re gulatory language that would extend CWA jurisdiction to stormwater control basins and ponds of any size or function that ultimately drain to an otherwise regulated 'water of the United States.' It is unclear whether or not such stormwater controls would qu alify for any of the exclusions in the proposal. On a majority of regulated construction sites, current NPDES permit requirements have led contractors to build temporary basins to hold rainwater that has 'run off" the surrounding jobsite and slowly release it to receiving waters via an outlet control structure and/or under

- drainage system. EPA is now pushing cities to require that contractors build permanent structural controls to treat, store, and infiltrate runoff onsite before it enters the municipal sto rm sewer system. These stormwater control systems would, under this proposed regulation, become 'waters of the United States,' forcing construction site operators to create federally jurisdictional waters on their property to meet other requirements of the CWA. (p. 2)

Agency Response: Please see summary response at 7.4.4.

National Association of Home Builders (Doc. #19540)

7.615 i. MS4s are not “Waters of the United States.”

Municipal separate storm sewer system (MS4) infrastructure is defined as “a conveyance or system of convey ances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- made channels, or storm drains)” owned and operated by a state or municipality which “discharges to waters of the United States” and is “[d]esigned or used for collecting or conveying storm water.” 376 The National Pollutant Discharge Elimination System (NPDES) program regulates stormwater discharges from MS4s, construction activities, and industrial activities. The Phase I MS4 requirements,

issued in 19 90, direct medium and large cities and certain counties with populations of 100,000 or more to obtain NPDES permit coverage for their stormwater discharges. There are approximately 750 Phase I MS4s. Phase II MS4s whose requirements were issued in 1999, inc lude small MS4s in urbanized areas, as well as small MS4s outside the urbanized areas that are designated by the permitting authority. Like Phase I MS4s, they

376 40 C.F.R. § 122.26(b)(8).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

402 too must obtain NPDES permit coverage for their stormwater discharges. There are roughly 6,700 Ph ase II MS4s. 377

In the comprehensive and exhaustive proposed rule, nowhere do the Agencies mention MS4s, much less the elaborate CWA regime that governs and regulates these systems across the United States. The Agencies must address the interplay between the MS4 stormwater program and waters of the United States coverage. Indeed, the proposed rule’s strong intent to provide as much certainty to the regulated public and the regulators demands clarification on the jurisdictional status of MS4s.

NAHB urges the A gencies to clarify that MS4s are “point sources” regulated under CWA Section 402, and are not also waters of the United States. 378 Additionally, MS4s are waste treatment systems and, accordingly, should be categorically excluded from the reach of

waters of t he United States. The CWA’s regulatory scheme, for all its detail, is quite simple: the Act prohibits the discharge of pollutants from point sources to navigable waters unless authorized by a permit. 379 The term “‘point source’ means any discernible,

confine d and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, . . . from which pollutants are or may be discharged. . . .” 380 The CWA further provides that “‘discharge of a pollutant’ . . . means . . . any addition of any pollutan t to navigable waters from any point source. . . .” 381 The Act thus contemplates that point sources are not themselves “navigable waters,” but instead are “discrete conveyances” for conveying po llutants to navigable waters. 382 The proposed rule ignores this di stinction and may potentially and improperly define some well

- recognized point sources as waters

of the United States.

Similarly, the Agencies should clarify that no permit is necessary to contribute pollutants that are conveyed to a local government

- owned MS4. 383 Otherwise, the Agencies will upset the CWA framework by requiring a permit for “discharging” pollutants to a “point source,” which is well beyond the Agencies’ CWA authori ty. 384 For example, the proposed rule defines tributaries in such a broad manner as to potentially cover ditches

377 See http://water.epa.gov/polwas te/npdes/stormwater/Municipal

- Separate

- Storm

- Sewer

- System

- MS4

- Main

Page.cfm

. 378 Similarly, any ditch or other feature upstream of the MS4 or any other NPDES outfall should also not be considered a jurisdictional “water of the United States.”

379 33 U.S.C. § 1 311(a) (prohibiting the “discharge of any pollutant[s]” unless permitted elsewhere in the CWA).

380 33 U.S.C. § 1362(14) (emphasis added).

381 33 U.S.C. § 1362(12) (emphasis added).

382 See also Rapanos , 547 U.S. at 735 (“The definitions thus conceive of ‘point sources’ and ‘navigable waters’ as separate and distinct categories;” “Most significant of all, the CWA itself categorizes the channels and conduits that typically carry intermittent flows of water separately from ‘navigable waters,’ by including them in the definition of ‘point source.’”).

383 These systems are owned and operated by public entities, including states, local governments, and special governments created under state law, such as sewer districts, flood control districts, or drainage districts.

384 The Act authorizes the Agencies to control “discharges” of pollutants to navigable waters. A “discharge” covers only the “addition of any pollutant to navigable waters from any point source;” not a discharge from a point source to a point source. 33 U.S.C . § 1362(12) (emphasis added).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

403 that flow into MS4s, which Congress designated as point sources s ubject to CWA Section 402(p). 385

Treating MS4s, and the ditches that convey runoff to them, as waters of the United States

would mark a 180

- degree turn from the Agencies’ traditional practice. For example, in the 1990 preamble to EPA stormwater regulations, EPA made clear that stormwater runoff into municipal sewers (roads, ditches, storm drains, etc.) is not a discharge of a pollutant into a water of the United States. 386 EPA has “always addresse[d] such discharges as ‘discharges through municipal separate storm sewers’ as opposed to

‘disch arges to w aters of the United States.’” 387

Similarly, in 2005, EPA confirmed that MS4s are “by definition ” not CWA “navigable

waters.” 388 The Agencies must continue that trend.

Moreover, the case law makes clear that “a two

- permit regime is contrary to the s tatute and the regulations ... [and] would cause confusion, delay, expense, and uncertaint y in the permitting process.” 389 The Supreme Court concluded “that, when a permit is required to discharge fill material, either a § 402 or a § 404 permit is necessary.” 390 The same principle holds true here

– where a point source like an MS4 (including ditches flowing to the MS4) is regulated under Section 402 of the Act, it is contrary to the statute, the case law, and common sense to also treat that ditch as a water of th e United States. While off the record the Agencies assert it is not their intent to regulate MS4s as waters of the United States, the proposed rule is broa d enough to create confusion. 391

As point sources, MS4s are local government

- owned systems that are req uired to control the volume of stormwater while reducing the discharge of pollutants therein. Congress conceived of this framework so that, “[r]ather than regulate individual sources of runoff, such as churches, schools and residential property, . . . the NPDES permitting

385 Congress amended the CWA in 1987 and added section 402(p) which, among other things, required EPA to develop regulations for an MS4 permit program regarding stormwater discharges. See 33 U.S.C. § § 1342(p)(3)(B), (4). The h istory of the MS4 permit program and its phased approach for regulation of municipalities based on their population size is summarized in Envtl. Def. Ctr., Inc. v. U.S. EPA , 344 F.3d 832, 841

- 42 (9th Cir. 2003). According to EPA, approximately 70 percent o f the nation’s population lives within an urbanized area subject to EPA’s MS4 regulations. See U.S. EPA, Fact Sheet 2.2 (EPA 833

- F

- 00

- 004), Storm Water Phase II Final Rule, Urbanized Areas: Definition and Description (Dec. 1999, rev. Dec. 2005), available at http://cfpub.epa.gov/npdes/stormwater/swfinal.cfm.

386 55 Fed. Reg. 47,990, 47,991 (Nov. 16, 1990) (“[M]ost urban runoff is discharged through conveyances such as separate storm sewers or other conveyances which are point sources under the CWA. These disc harges are subject to the NPDES program.”).

387 Id . (emphasis added).

388 Memorandum from A. Klee, Former General Counsel, and B. Grumbles, Former Assistant Administrator for Water, EPA, to Regional Administrators at 18 n.18 (Aug. 5, 2005) (“Agency Interpretation on Applicability of

Section 402 of the Clean Water Act to Water T ransfers”), available at http://www.epa.gov/ogc/documents.htm.

389 Coeur Alaska, Inc. v. Se. Alaska Conservation Council , 129 S.Ct. 2458, 2474 (2009) (Op. by Kennedy, J.).

390 Id . (emphasis added).

391 September 2014 Q and A at 5. (“Question 13: Will stormwater management systems permitted under the CWA, commonly called MS4s, become “waters of the US” under the proposed rule? ANSWER: No. The proposed rule does not change the status of an MS4 under the CWA. The proposed rule does not regulate any types of waters t hat are not regulated under the current rule. We are eager to work with stakeholders and the public to ensure the final rule reflects this intent.”)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

404 requirement [operates] at the municipal level to ease the burden o f administering the program.” 392 Because states and local governments are already charged with controlling stormwater volume and reducing pollution from urban runoff through t he NPDES program, there is no benefit or administrative efficiency gained by treating the same drainage systems as jurisdictional waters. Classifying MS4s as waters of the United States would disrupt state and local government programs that maintain, manag e, and treat stormwater discharges under CWA Section 402(p).

Case law and the Agencies’ long

- standing position on MS4s are also consistent with how these systems operate. MS4s are waste treatment systems for sediment and other pollutants, and thus they sho uld be excluded from the definition of waters of the United States. Under EPA regulations and the proposed rule, waste treatment systems are not

waters of the United States. 393 Instead, they are “manmade bodies of water which neither were originally created in waters of the United States . . . nor resulted from the impoundment of waters of the United States.” 394 Because MS4s collect stormwater runoff and remove pollutants, including sediment, from stormwater runoff, they operate as waste treatment systems and a re, therefore, not jurisdictional waters.

Even more problematic, if MS4s are treated as waters of the United States, all CWA programs will apply to them. States will then be required, among other things, to monitor water quality, designate beneficial uses, establish water quality standards, and establish TMDLs for any part of an MS4 under the jurisdiction of the CWA. Additionally, a Section 404 permit could be required to perform necessary maintenance and repair on MS4s that are wrongly deemed waters of the United States. The time and money it will take to obtain Corps permits to repair or maintain ditches and conveyances within an MS4 will cost local governments extra time and money while simultaneously jeopardizing public infrastructure and safety.

A more common sense approach is to treat MS4s and those entities that release pollutants through them like publicly owned treatment works (POTWs) and to treat those that introduce pollutants into them as part of the POTW. Under this approach, discharges

from the point source (i.e., the MS4) are appropriately permitted under Section 402, and no permit is required for persons to discharge into the point source, as is consistent with the Act. Those entities who introduce pollutants to the MS4, which then discharges t he pollutants to navigable waters, must then comply with the requirements that the MS4 establishes. Indeed, this is the basic structure EPA has created within the Section 402 program and there is no need to change it now.

Because conveyances within an MS4 or that convey pollutants through an MS4 could readily meet the proposed rule’s broad tributary definition, many MS4s and/or other components could be treated as waters of the United States rather than as point sources.

392 Nat. Res. Def. Council, Inc. v. Cnty. of Los Angeles , 636 F.3d 1235, 1247 (9th Cir. 2011). The Ninth Circ uit quoted Senator Wallop, who called the alternative approach an administrative nightmare: “‘[T]he regulations can be interpreted to require everyone who has a device to divert, gather, or collect stormwater runoff and snowmelt to get a permit from EPA as a point source. . . . Requiring a permit for these kinds of stormwater runoff conveyance systems would be an administrative nightmare.’” Id. (citing 131 CONG. REC. 15616, 15657 (Jun. 13, 1985)).

393 40 C.F.R. § 122.2 (defining waste treatment systems); 79. Fed. Reg. at 22,263

. 394 40 C.F.R. § 122.2 (defining waste treatment systems).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

405 The Agencies must confirm that point sources, such as MS4s, that are regulated by CWA Section 402 are not “waters of the United States.” One way to do so is to specifically include MS4s in the waste treatment system exclusion. (p. 106

- 109 )

Agency Response: Please see summary response at 7.4.4. Also see the Technical Support Document at Section I.C.

North American Meat Association and American Meat Institute (Doc. #13071)

7.616 The CWA stormwater program requires the construction of retention ponds to manage

stormwater. 395 Treating stormwater as waters of the U.S. wi ll create a never

- ending cycle of regulation. Similarly, Federal Emergency Management Agency flood control provisions require stormwater management, drainage, and flood control. 396 Municipal and county codes also require stormwater management and drainage, o ften with EPA guidance. Likewise, the Corps manages and administers national flood control and drainage of stormwater, including ditches that would qualify as waters of the United

States.

Rather than designating ditches as “waters of the U.S.,” the agencie s should continue to utilize and rely on existing CWA Section 402 requirements for discharges to navigable waters and stormwater management systems. The agencies should affirmatively state that point sources covered by National Pollutant Discharge Eliminat ion System (NPDES) permits are not waters of the U.S. Such an assertion would help provide the certainty “to the regulated public and the regulators” that the agencies contend is the purpose of the proposed rule. (p. 3)

Agency Response: Please see summary response at 7.4.4

.

The Mosiac Company (Doc. #14640)

7.617 In addition to the list above, however, Mosaic urges the agencies to expand the list to NPDES systems, both industrial and stormwater (MS4), to provide clarification and assurance to the regulated public and stakeholder s that systems designed to provide water treatment for the benefit of waters of the U.S. won't become jurisdictional themselves. Similar to the exemption for waste treatment systems (including treatment ponds or lagoons) already stated in the proposed rule , waters that are a part of NPDES systems convey water to, from, and through areas used for treatment and discharge from a regulated outfall structure. The discharge location is the point where water from the NPDES system enters waters of the State or wate rs of the U.S. and is the point where all applicable water quality standards must be met. Waters upstream of the discharge location are not currently required to meet these limits or they would cease to be able to provide their treatment function. Therefor e, the same exemption provided for waste treatment systems should apply to NPDES systems (stormwater and industrial). While it

395 See generally Comments of the Coalition of Real Estate Associations on the proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act,” Docket ID No. EPA

- HQ

- OW

- 2011

- 0880 (August 8, 2014) (addressing the impact of any revised definition of “waters of the U.S.” on MS4s, and the component conveyances within these systems that channel and discharge stormwater runoff)

. 396 See, e.g. , 40 CFR Part 213.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

406 is known that these features are not proposed to be considered jurisdictional if excavated solely in uplands, in central and sout h Florida and other areas with generally flat terrain and high water tables, it is not practicable to construct such systems solely in uplands. 397
Providing an express exemption i n the proposed rule for these waters would alleviate this concern. (p. 5)

Agency Response: Pleas e see summary response at 7.4.4.

Packaging Corporation of America (Doc. #15515)

7.618 The preamble in the Proposal indicates that the Agencies do not intend to change the waste treatment system exemption under the current regulations (79 Fed. Reg. at 22,189).

Ch anges or Clarifications Needed Regarding the Exemption

There should be no question that any stormwater management facilities (e.g., green infrastructure, detention ponds, etc.) that are part of an industrial stormwater pollution prevention plan required un der an NPDES stormwater permit or required by conditions in an NPDES stormwater permit are clearly covered by the waste treatment system exemption and not subject to Section 402 or 404 permit requirements. Nonetheless, due to the expansive definitions and other provisions previously discussed, the preamble to any final rule should specifically state that this is the case to remove any doubt among all stakeholders. The preamble should make clear that ditches that are conveying stormwater

to or from stormwate r management facilities also are covered by the exemption. (p. 4

- 5)

Agency Response: Please see summary response at 7.4.4.

Hampton Roads Planning District Commission, Virginia (Doc. #9612)

7.619 1. All man

- made purpose built stormwater management facilities should be explicitly excluded from the definition of WOTUS. If stormwater management facilities are not explicitly excluded in this Rule, then they may be classified as tributaries to WOTUS. Because a stormwater management facility is designed to drain and treat the

runoff wit hin its drainage area, under the definition of "adjacent" in this Rule, most of the water draining to the stormwater facility could be classified as WOTUS and subject to the CWA. The Rule should include exemptions specifically for construction, maintenance and/or retrofitting of purpose built stormwater management facilities. Without such exclusion, the Hampton Roads localities' ability to comply with its Section 402 National Pollution Discharge Elimination System (NPDES) requirements (MS4) and compliance

w ith TMDL allocations will be limited. (p. 2)

Agency Response: Please see summary response at 7.4.4. . Please note that the proposed rule did not address which activities are regulated under the CWA; rather it addressed which waterbodies are jurisdictional. Comments about activities such as maintenance, construction and/or retrofitting are outside the scope of this rule.

397 Water E nvironment Federation webinar: Potential Impacts of Waters of the U.S, Rulemaking on Stormwater Infrastructure . Online Webcast, November 6 th , 2014.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

407 Division of Transportation, Kane County, St. Charles, Illinois (Doc. #9831)

7.620 Since stormwater management activities are not explicitly exempt under the pro posed rule, we are concerned that man

- made conveyances and facilities for stormwater management could now also be classified as a "water of the U.S." We are concerned that municipal separated storm sewer infrastructure within our right

- at

- way may be subjec t to additional water quality standards (including total maximum daily loads) if our

stormwater ditches are considered a "w ate r of the U.S." Not only would the discharge leaving the system be regulated, but all flows ente ring the s ystem would be regulated as well. Unless mun icipal sepa rated storm sewers are explicit ly exempted from the requirements, we may be force d t o regulate them as a "water of the U.S .," through Clean

Water Act citizen suits. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Roads and Drainage Department, DeKalb County, Georgia (Doc. #13572)

7.621 Since stormwater management activities are not explicitly exempt under this proposed rule, we are concerned that Municipal Separate Storm Sewer System (MS4) infrastructure

could now be classified as a "water of the U.S." This infrastructure includes many county MS4 conveyances, including ditches, channels, pipes and gutters that flow into a water of the U.S. and are already regulated under the CWA Section 402 stormwater permit program. We are concern ed that not only would the discharge leaving the stormwater system be further regulated, but all flows entering the MS4 could be regulated as well. In

communications to

- date, EPA staff have stressed that they do not "intend" to regulate an MS4, as a "water of the U.S." We take them for their word on their intentions.., however, they may be forced to do so through citizen/environmental group CWA lawsuits as these ditches, pipes and channels, under the rule's "tributary" and "adjacency" definitions,

could ver y well be interpreted to be "Waters of the U.S." Vague federal rules have been used by various outside groups to litigate for years. We feel that this is yet another area where EPA rule ambiguity will end up being fodder for the courts. Recommendation : In order to avoid this, we respectfully recommend that MS4 activities be specifically exempt under the proposed rule. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Elmore County Highway Department, Wetumpka, Alabama (Doc. #14072)

7.622 Since storm water management a ctivities are not explicitly exempt under the proposed rule, we are concerned that man

- made conveyances and facilities for storm water management could now be classified as a "water of the U.S." Some counties and cities own Municipal Separate Storm Sewer S ystem (MS4) infrastructure including ditches, channels, pipes and gutters that flow into a "water of the U.S:' and are therefore regulated under the CWA Section 402 storm water permit program. There is a significant potential

threat for counties that own M S4 infrastructure because they would be subject to additional water quality standards (including total maximum daily loads) if their storm water ditches are considered a "water of the U.S:' Not only would the discharge leaving the system be regulated, but all flows entering the MS4 would be regulated as well. Even if the agencies do not initially plan to regulate an MS4 as a "water of the U.S.," they mayClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

408 be forced to do so through CWA citizen suits, unless MS4s are explicitly exempted from the requirements.

Further, storm water management is often not funded as a water utility, but rather through a county general fund. If storm water costs significantly increase due to the proposed rule, not only will it potentially impact our ability to focus available reso urces on real, priority water quality issues, but it may also require that funds be diverted from other government services such as education, police, fire, etc. Our County cannot assume additional unnecessary or unintended costs. (p. 5)

Agency Response: Please see summary response at 7.4.4.

Lake County Division of Transportation, Lake County, Illinois (Doc. #14743)

7.623 Since stormwater management activities are not explicitly exempt under the proposed rule, we are concerned that conveyances and facilities constructed for storm water management would be classified as a "water of the U.S." Municipal Separate Storm Sewer Systems (MS4s) include ditches, channels, storm sewer, and gutters that under the proposed rule would flow into a "water of the U.S." and would therefore be subjec t to increased regulation under the Clean Water Act Section 402 stormwater permit program. If the stormwater ditches are considered a "water of the U.S." then all discharges leaving the system and all flows entering the MS4 would be subject to increased re gulation as well. The MS4 would then be subject to additional water quality standards including total maximum daily loads. The proposed rule should specifically exclude MS4s from federal jurisdiction. (p. 2)

Agency Response: Please see summary response at 7.4.4.

National A ssociation of County Engineers (Doc. #14981)

7.624 It is important to recognize that a water body is either regulated as an MS4 or a Water of the U.S., but it should not be both. Dual regulation would lead to competing and conflicting requirements. Counties shou ld not have to get a 404 permit to dredge a stormwater management facility when MS4 regulations require maintenance of these facilities. For these reasons, water bodies and conveyance systems should not be dually regulated. (p. 3)

Agency Response: Please see summary respon se at 7.4.4.

Union Pacific Railroad Company (Doc. #16370)

7.625 Waste Water Treatment Systems: The Proposed Rule refers to “Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean

Water Act”. Based on this te xt, it is not clear if a stormwater collection system in a managed stormwater basin ending in a water quality treatment structure prior to end of pipe [and regulated at end of pipe under NDPES/ MS

- 4] would qualify as a “waste treatment system designed to m eet the requirements of the CWA”. We request that the Proposed Rule state clearly that all such stormwater basins are excluded. (p. 5)

...Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

409 h. In an effort to further understand the jurisdictional reach and related impacts of the Proposed Rule the following g eneral questions need to be answered:

...

 Does the exclusion for “waste treatment systems” cover all likely water, stormwater and wastewater treatment systems? Is stormwater containing a pollutant a waste?

 Could a ditch that is upstream of a waste treatment system and fully treated by the system, be regulated as WOTUS? If so, would a treatment system have to be at a location that captures only waters that are not WOTUS?

... (p. 5, 6)

Agency Response: Please see summary response at 7.4.4. See the summary response at 7.1 with res pect to the waste treatment system exclusion

.

Charlotte

- Mecklenburg Storm Water Services (Doc. #3431)

7.626 This comment pertains to Section 328.3 Definitions, (b)(1), Federal Register page 22263. It is not clear if “waste treatment systems, including ponds or lagoon, designed to meet the requirements of the Clean Water Act” includes stormwater treatment systems

. CMSWS recommends specifically stating that “Stormwater Management Facilities”

are not “waters of the United States” . (p. l)

Agency Response: Please see summary response at 7.4.4.

Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1)

7.627 4. The Rule provides an exemption for artificial lakes or ponds used exclusively as settling basins, ditches that are excavated wholly in uplands, and ditches that do not contribute flow to a traditional navigable water. These exemptions are not comprehensive. Specifically, the Rule should have an exemption specifically for construction, maintenance and/or retrofitting of purpose built stormwater management facilities. Without such an exemption, the City's efforts to comp ly with its Section 402 National Pollution Discharge Elimination System (NPDES) re quirements (MS4) and compliance with future TMDL allocations will be severely limited. In addition, if these features are not exempt to the Rule, additional cumbersome report ing and resource intensive water quality standards may be applied to new WOUS under the Section 303

program

. (p. 2)

Agency Response: Please see summary response at 7.4.4. Please note that the proposed rule did not address which activities are regulated under the CWA; rathe r it addressed which waterbodies are jurisdictional. Comments about activities such as maintenance, construction and retrofitting are outside the scope of this rule.

7.628 ... the City of Chesapeake has identified a significant number of concerns and problems

wit h EPA's proposed waters of tile US Rule; however, the City does support streamlining regulatory oversight by the EPA and the Corps through various sections of the CWA Other than the regulatory provisions already contained within Section 402 of the CWA (NPD ES & MS4), stormwater management facilities which have been constructedClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

410 specifically for the purposes of conveyance, management, retention, and treatment of stormwarer should he specifically excluded from regulatory oversight under the CWA including, but n ot limited to stormwater management ponds, lakes, swales, dry or wet detention basins, constructed wetlands, bio

- retention areas, rain gardens and intermittent/ephemeral ditches regardless of their proximity to a waters of the US or a traditional navigable water; regardless of being ephemeral, intermittent, perennial; regardless of having shallow subsurface groundwater connections or confined surface hydrologic connections; regardless of contributing to WOUS in storm events; and regardless of being excavate d from uplands, wetlands, or agricultural lands. Without these exclusions, there may be unintended consequences for local governments subject to MS4 regulation as well as private property owners. Under the proposed Rule, the City's ability to perform requi red routine maintenance and retrofitting of stormwater management facilities to improve water quality could be severely limited because most of the City's facilities would be regulated as WOUS. The proposed Rule may require unnecessary and resource intensi ve Section 404 permitting for routine maintenance and retrofitting of the City's stormwater management facilities. (p. 7)

. Agency Response: Please see summary response at 7.4.4.

Beaufort County Stormwater Utility (Doc. #7326.1)

7.629 III) Man

- Made or Man

- Altered Tributaries”

- Under Section III, “Proposed Definition of Waters of the United States,” Part F, Tributaries, Subsection (6), “Man

Made or Man

- Altered Tributaries Significantly Affect the Chemical, Physical, and Biological Integrity of (a)(1) Through (a)(3) Waters”, it st ates in part: “This proposal expressly states that a tributary, including wetlands, can be a natural, man

- altered, or

man

- made water body and includes waters such as rivers, streams, lakes, impoundments, canals, and ditches that meet the definition of trib utary and are not excluded from the definition of ‘‘waters of the United States’’ by paragraphs (b)(3) and (b)(4) of the proposed rule.” The agencies’ proposed rule clarifies that man

- made and man

- altered

tributaries are ‘‘waters of the United States’’ bec ause man

- made and man

- altered tributaries perform many of the same functions as natural tributaries, especially the conveyance of water that carries nutrients, pollutants, and other substances to traditional navigable waters, interstate waters, or the terr itorial seas. III) Man

- Made or Man

- Altered

Tributaries”

- Under Section III, “Proposed Definition of Waters of the United States,” Part F, Tributaries, Subsection (6), “Man

- Made or Man

- Altered Tributaries Significantly Affect the Chemical, Physical, and Bi ological Integrity of (a)(1) Through (a)(3) Waters”, it states in part: “This proposal expressly states that a tributary, including wetlands, can be a natural, man

- altered, or man

- made water body and includes waters such as rivers, streams, lakes, impoundm ents, canals, and ditches that meet the definition of tributary and are not excluded from the definition of ‘‘waters of the United States’’ by paragraphs (b)(3) and (b)(4) of the proposed rule.” The agencies’ proposed rule clarifies that man

made and man

- a ltered tributaries are ‘‘waters of the United States’’ because man

- made

and man

- altered tributaries perform many of the same functions as natural tributaries, especially the conveyance of water that carries nutrients, pollutants, and other substances

to tr aditional navigable waters, interstate waters, or the territorial seas.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

411 Many stormwater management facilities, even those designed primarily for conveyance, have been “designed with nature” in which they would intentionally function as a natural wetland, p ond or stream. In addition to its many ecosystem and hydrologic benefits, it is a design concept that has been strongly encouraged by State and Federal Agencies.

Recommendation: The final rule should explicitly state that stormwater management facilities a re excluded from being considered WOTUS. More generally, the Corps and EPA should work to ensure that concerns about creating jurisdictional waters do not discourage the implementation of green infrastructure or natural methods of stormwater management. (p . 2

- 3)

Agency Response: Please see summary response at 7.4.4.

7.630 Waste Treatment Systems

- The proposed rule would identify as non

- jurisdictional by rule “waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.” (79 FR 22263). The preamble does not contain any explanation of this exclusion, so it is not clear how this exclusion would apply to stormwater management systems that are constructed to meet requirements of the Clean Water Act. One of the potential imped iments to developing green infrastructure is the

concern that wetlands created to receive stormwater runoff could themselves be deemed jurisdictional.

Recommendation: The final rule should clarify that the exclusion for waste treatment systems, including t reatment ponds or lagoons also applies to stormwater management facilities. More generally, the Corps and EPA should work to ensure that concerns about creating jurisdictional waters do not discourage the adoption of natural methods of

stormwater managemen t. (p. 4)

Agency Response: Please see summary response at 7.4.4.

Gateway Water Management Authority, Los Angeles Gateway Region (Doc. #10032)

7.631 Curbs, street gutters, concrete or other constructed harded water conveniences such as circular or rectangular concrete storm drain s in urban settings; that did not or are not replacing existing natural stream or river beds are not considered tributaries.

This wording is not inconsistent with the changes to the "ditch" rule for rural areas that are being proposed. This wording would a lso not impact the outfall and receiving water monitoring programs our cities have recently submitted to the Los Angeles Regional Water Quality Control Board, thus protection of the waterways would continue under the MS4 Permit. (p. 2)

Agency Response: Please see summary r esponse at 7.4.4.

Department of Public Works, Snohomish County, Washington (Doc. #10749)

7.632 Federal regulations for NPDES municipal stormw ater perm its are set forth in 40CFR 122.26 pursuant to Section 402(p) of the Clean Water Act. 40 CFR 122.26(b)(8) defines the term "municipal separate storm sewer" as:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

412 "a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- made channels, or storm d rains):

(i) Owned or operated by a State, city, town, borough, county , parish, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, includin g special districts under State law such as a sewer district, flood contro l district or drainage district, or similar entity,

or an Indian tribe or an authorized Ind ian tribal organization, or a designated and approved management agency under section 208 o f the CWA that discharges to waters of the United States;

(ii) Designed or used for collecting or conveying storm water ;

(ii i) Which is not a combined sewer; and

(iv ) Which is not part of a Publicly Owned Treatment Works (POT W ) as

defined at 40 CFR 122.2 ."

The basic purpose of the municipal storm sewer system, as operated under the NPDES permit, is to functi on in a manner analogous to a sanitary sewer system. The munic ipal storm sewer is designed, constructed, and operated to collect, convey, and properly treat stormwater prior to discharge to surface receiving waters.

The existing defin ition of "municipal separate storm sewer" sets forth an essential

characteristic of these systems: they discharge to waters of the United St ates. This creates a very usefu l regulatory bright line: upstream of the discharge point, the system (and the water in it) are regulated by the NPDES municipal storm water permit; downstream of the discharge point, regulations for wat er s of the United States apply

. The proposed language of 40 CFR 2303 creates ambiguity in distinguishing between waters of the United States and municipal separate storm sewer systems. Proposed 40 CFR 2303(s) defines a very broad set of water bodies and conveyances as "waters of the United States." Proposed 40 CFR 2303(t) excludes a number of water bodies and conveyances from this definition, including "ditches that do not contribute flow, either directly or through another water, to a water identified in paragraphs (s)(1) through (4) of this section" (emphas is added). Thus, any ditch that contributes flow, directly or indirectly, to any of those waters of the United States is itself included in the scope of

waters of the United States.

The municipal separate storm sewer system of Snohomish County includes hun dreds of miles of ditches designed, constructed, operated, and maintained as part of the roadway drainage system. Virtually all of these ditches drain directly or indirectly to waters of the United States as defined in proposed 40 CFR 2303(s). Thus, while these ditches fall under the existing definition of municipal separate storm sewer set forth in 40 CFR 122.26(b)(8), they would also become classified as waters of the United States under proposed 40 CFR 230.3.

Snohomish County believes this was an uninten ded consequence of the proposed

definition of waters of the United States. Our recommended solution is to amend theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

413 proposed definition to include municipal separate storm sewer systems under the exemption given to waste treatment systems, as follows:

40 C FR 230.3

(t) The following are not "waters of the United States" notwithstanding whether they meet the terms of paragraphs (s)(1) through (7) of this section

- (l) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requireme nts of the Clean Water Act and infrastructure that is part of municipal separate storm sewer systems as defined in 40 CFR l22.26(b)(8).

We believe that this amendment follows the logic used in the 1987 Clean Water Act amendments that placed regulation of s tormwater and stormwater infrastructure under the purview of NPDES wastewater regulations. Both types of municipal infrastructure are designed, built, and operated to remove pollutants from water prior to it discharge to waters of the United States. Our pr oposed amendment will retain the existing important distinction between municipal sewer infrastructure and waters of the United States provided in 40 CFR l22.26(b)(8), while allowing the necessary revision to the scope of

"waters of the United States" rela ted to ditches that are not part of a municipal separate storm sewer system. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4.

Minnesota Cities Stormwater Coalition (Doc. #14647)

7.633 1. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United St ates. Some are cities. Others are various types of public entities (DOTs, counties, non

traditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES permitting program. Many more of these MS4s are not regulated and are not covered

under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portions of their systems that are regulated under MS4 permits (inside an Urbanized Area) and portions that are not regulated (outside of Urbanized Areas). Taken together, all these MS4s own,

operate, a nd maintain millions of Stormwater Control Measures (SCMs) and Best Management Practices (BMPs). These SCMs and BMPs include both structural and non

structural practices, programs, and features. In order for these MS4s to operate and maintain their systems in an efficient and cost

- effective manner, the WOTUS jurisdictional status of the vast majority of these constructed SCMs and BMPs must be clear. Determining the WOTUS jurisdictional status of most of these constructed SCMs

and BMPs on a case

- by

- case basi s is not manageable or practicable. It is essential that clarity be provided by having specific and explicit exclusion language in the new rule for most of these constructed SCMs and BMPs, including roadside ditches. Broad inclusion language and reliance o n agency best professional judgment and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.634 3. If a significant number of urban SCMs are determined to be WOTUS, t he operation and maintenance of those SCMs will become much more complicated, difficult, and expensive for the public entities responsible for these MS4s, without any corresponding positive environmental outcomes. In fact, the MS4s’ work and performance to protect,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

414 restore, and improve water quality will be diminished. Such determinations may be the result of agency judgment or the outcome of third party lawsuits, based on interpretations of rule language. This is part of the reason why an explicit exclusio n for most urban

SCMs is needed. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.635 4. Specific exclusion language is needed for urban SCMs. If, as has been stated publicly,

it is EPA’s intent that most of these waters and structures are not to be considered

WOT US, this should be clearly stated in the rule. Such a clear statement would formalize and clarify EPA’s intent. Such a clear statement would significantly reduce the probability of unfortunate interpretations in the future. (p. 3

- 4)

Agency Response: Please see summary resp onse at 7.4.4.

7.636 5. The current draft of the rule is almost silent about urban stormwater, in the preamble and the proposed rule language. This recommended revision language would rectify a portion of that deficiency. Adding exclusion language for urban SCMs to this rule would be appropriate, historic, and significant. (p. 4)

Agency Response: Please see summary response at 7.4.4.

7.637 6. Because EPA is driving construction of MS4 SCMs and BMPs as part of its regulatory function, EPA has a responsibility to define clearly the juris dictional status of most urban SCMs in the new WOTUS rule. This is part of the reason why an explicit exclusion for most urban SCMs is needed. (p. 4)

Agency Response: Please see summary response at 7.4.4

7.638 7. The definition for the term “tributary” provided in the proposed draft rule language is breathtakingly broad, especially the language related to man

- made and natural breaks. Under this language, it appears that many urban SCMs could be considered tributary to other Waters of the United States and, thus, themselves be WO TUS. This contradicts EPA’s public statements that most urban SCMs are not WOTUS. This is part of the reason why an explicit exclusion for most urban SCMs is needed. Broad inclusion language and reliance on agency best professional judgment and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable. (p. 4)

Agency Response: Please see summary response at 7.4.4.

7.639 8. Section 1.a.vi. of the draft proposed rule (“All waters, including wetlands, adjacent to a water identified in paragra phs (a)(1) through (5) of this section”) states that all waters adjacent to WOTUS are WOTUS. The definition of the term “adjacent” includes the term “neighboring”. The definition of the term “neighboring” includes waters located within the riparian area or floodplain of a WOTUS. Under this rule language, it appears that constructed urban SCMs in the riparian areas or floodplains of WOTUS would be considered WOTUS. This contradicts EPA’s public statements that most urban SCMs are not WOTUS. This is part of t he reason why an explicit exclusion for most urban SCMs is needed. Broad inclusion language and reliance on agency best professional judgment and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable. (p. 4)

Agency Response: Pl ease see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

415 7.640 9. The approach with this new recommended revised rule language is to provide a broad exclusion for most types and the vast majority of urban stormwater SCMs, BMPs, and roadside ditches. The authors recognize that it may be appropriate that some types of urban SCMs are determined to be WOTUS, on a case

- by

- case basis. To this end, the new recommended revised language includes “exceptions to the exclusion” in the definition for “fully

- constructed SCMs” (see the last three s entences). We urge EPA and the Corps to consider this approach for the final rule language. This approach allows for a categorical exclusion for most urban SCMs but also allows for some types of urban SCMs to be determined to be WOTUS, on a case

- by

- case ba sis. If additional exceptions are needed and appropriate for “fully

- constructed SCMs” or exceptions are needed and appropriate for some types of roadside ditches, we urge EPA and the Corps to use this approach and add exceptions as needed. (p. 4

- 5)

Agency Response: Please see summary response at 7.4.4.

7.641 10. We urge EPA to add explanatory language to the preamble to clarify its approach for urban SCMs. The preamble should be as clear for urban SCMs and roadside ditches as it is for agricultural waters, flows, practices, and d itches. (p. 5)

Agency Response: The preamble explains all exclusions as clearly as possible. Also, please see summary response at 7.4.4.

7.642 11. The exclusion language in the current proposed rule (“Waste treatment systems, including treatment ponds or lagoons, designed to me et the requirements of the Clean Water Act.”) is inadequate for urban SCMs. Many urban SCMs were constructed for and serve purposes other than “waste treatment”. Many urban SCMs were designed for purposes other than meeting “the requirements of the Clean W ater Act”. For example, this language does not cover many SCMs constructed in non

- permitted MS4s. This language would not cover urban SCMs and roadside ditches constructed prior to the passage of the CWA. The new recommended revised rule language is intend ed to address these deficiencies. (p. 5)

Agency Response: Please see summary response at 7.4.4.

7.643 16. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. Some are cities. Others are various types of public entities (DOTs, counties, non

traditio nal MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES permitting program. Many more of these MS4s are not regulated and are not covered under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portions of their systems that are regulat ed under MS4 permits (inside an Urbanized Area) and portions that are not regulated (outside of Urbanized Areas). The exclusion language proposed here applies to all urban SCMs, regardless of whether they are covered under an MS4 permit or not. It may be a ppropriate to include language in this rule providing an exclusion for urban SCMs that are within the boundaries of permitted MS4s, but that is not the goal of this recommended rule revision. It is essential, for all the reasons listed above, that an exclu sion be provided for the vast majority of urban SCMs, regardless of MS4 permit status. (p. 6)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

416 7.644 18. EPA has publicly stated that a water can be both part of an MS4 conveyance system

and a Water of the Unites States. This is a very confusing concept, from the perspective of regulated MS4 permittees. It is particularly confusing in light of another public statement from EPA presentations on this rulemaking: “Remember: Clean Water Act permitting requirements apply ONLY when there is a discharge of a pollutant from a point source into a Water of the U.S.”. How does an MS4 system discharge to a WOTUS if the WOTUS is a component of the MS4 conveyance system? If there is no discharge, do the CWA permitting requirements apply? How does an MS4 permittee meet its permit requirements for the operation and maintenance of its system when a component of its system is also WOTUS?

We request that an alternative approach be considered. A water should only be WOTUS or part of an MS4, never b oth simultaneously. If a water is WOTUS, the discharge points from the MS4 to the water would be clearly viewed as outfalls under the MS4 permit. The water leaving the WOTUS could reenter the MS4. This approach may be much more

clear and “cleaner” than the current concept of waters being both WOTUS and MS4 components simultaneously. (p. 6)

Agency Response: The Agencies regard both approaches as essentially the same. Please see summary response at 7.4.4.

County of San Diego, California (Doc. #14782)

7.645 Exemption for water con veyance features

The County requests that the new rule exempt the full range of conveyances, green infrastructure, treatment, storage, and infiltration facilities necessary to comply with MS4 permits. The proposed rule should explicitly and categorically e xclude from the definition of a Water of the US multiple separate storm sewer systems (MS4s), conveyances, and related infrastructure designed for stormwater management. MS4s are not mentioned in the proposed rule. This is a glaring omission. Without a cle ar exemption, many features of MS4s could be potentially considered Waters of the U.S. Although there is an existing exemption for "waste treatment systems," it is not clear if all features of MS4s would qualify for this exemption.

An exemption is needed f or MS4s because the new rule redefines treatment and the definition of tributaries in a way that could allow many MS4 facilities to be considered Waters of the U.S. because they contribute flow downstream. This presents a conflict in complying with section s 402 and 404/401 of the CWA. MS4 facilities and conveyances require maintenance to sustain their proper water quality function; however, Sections 404 and 401 could trigger a need for permits to conduct the maintenance if these facilities are

considered Wa ters of the U.S. Clearly, clarification is needed to exempt infrastructure and BMP features that are built and maintained to comply with MS4 permits. As explained above, the new definition of tributaries appears more expansive, which would

reduce available water quality treatment options and make it difficult to locate such facilities, as Waters of the U.S. cannot be treated directly. As such, the new broad definition of tributaries would increase the cost of compliance, reduce treatment options,

and make i t more difficult to comply with Section 402 of the Clean Water Act.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

417 Conveyances should be explicitly defined as drainage facilities other than sanitary sewers by which urban runoff may be conveyed to receiving waters, including, but not limited to, roads, streets, constructed channels, aqueducts, storm drain, pipes, street gutters, inlets

to storm drains or pipes, and catch basins. The rule should specifically exempt

stormwater conveyances, bioswales, green streets, and infiltration basins that are

necessar y to comply with an MS4 permit. Additionally, the exemption should include

structures and features designed in pursuit of watershed

- based compliance options and integrated planning for stormwater management and water supply reliability. The

definitions and exclusions must ensure that the design and location of stormwater BMPs

can remain consistent with the goals of stormwater management without these areas being considered Waters of the U.S.

EXAMPLE: The San Diego Regional MS4 Permit requires plans to address pollutants

and impairments in jurisdictional water bodies. The Regional Water Quality Control

Board has identified Chollas Creek as impaired by dissolved metals. Expanding the

definition of Waters of the U.S. to include ditches and other "offline" MS4 conveyances with connectivity to the Creek would significantly limit opportunities to treat stormwater

before it reaches the receiving water. (p. 2

- 3)

Agency Response: Please see summary response at 7.4.4

Southeast Metro Stormwater Authority, Centennial, Colorado (Doc. #14935)

7.646 SEMSWA finds that the proposed ruling does not adequately address urban stormwater issues, and specifically, does not allow for appropriate management of our stormwater systems under our MS4 Permit. In fact, it has the potential to directly and negatively affect the efficient implementation of our existing CWA program. In the SEMSWA service area, there are several hundred fully

- constructed permanent stormwater facilities, or best management practices (BMPs) mandated by our MS4 permit. These facil ities are constructed for the purpose of water quality treatment, stormwater volume reduction,

sto rmwater discharge co ntrol, flood control

, and/or conveyance. These facilities have treatment components that require routine maintenance, and have the p otenti al to be negatively affec ted by the proposed Rule, including the tributary definition; significant nexus; ditches, and 'waste treatment systems' proposed directives. With respect to our MS4 Permit implementation concerns, we would like to offer the followi ng comments for your consideration:

... 4. Additional clarification is needed to identify the type of facilities that qualify for the 'waste treatment systems' exclusion defined as those systems that are "designed to meet the requirements of the Clean Water Act (Page 22193)". SEMSWA owns and operates stormwater facilities to control the volume and quality of stormwater runoff in accordance with our MS4 permit and we are uncertain if these facilities qualify as 'waste treatment systems' as outlined in the pro posed rule. We believe any facility designed and operated to treat stormwater runoff in our MS4 to meet CWA requirements should be specifically included in the 'waste treatment system s' exclusion. (p. 1, 2)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

418 Department of Public Works, City of Northglenn, Colorado (Doc. #14990)

7.647 1. Definition of Tributary . Existing regulations do not define this term. In practice, the USACE has regularly determined that many remote ephemeral drainages are not Waters of the U.S. The Propos ed Rule will bring most, if not all, of these tributaries into the scope of jurisdictional Waters of the U.S. This would eliminate the USACE's flexibility in making individual determinations based on site

- specific conditions. Features that

would otherwise meet the definition of tributary do not lose that status if, for any length, there are natural or manmade breaks, provided that there is an ordinary high water mark upstream of the break. The Proposed Rule's definition of tributaries would increase the

num ber of hydraulically connected features that are considered tributaries, notwithstanding exclusions such as ditches, to traditional navigable waters.

We respectfully request exclusions for MS4 features including roadside ditches, detention facilities, and detention outfalls. (p. 2)

Agency Response: Please see summary response at 7.4.4. and Compendium 6

- Ditches

7.648 5. Excluded Best Management Practices . Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act are no t Waters of the U.S. under the current rule. Language in the 2012 Nationwide Permits and Current Guidance clarifies that permanent Best Management Practices (BMPs) that are determined to be waste treatment systems under current regulations are not WOTUS. T he Proposed Rule does not significantly change the language regarding the excluded waste treatment facilities. However, there is not a categorical exclusion for BMPs. Additional clarification is required to identify the types of facilities that should qual ify for this exclusion. EPA, as the regulatory authority driving the construction of many BMPs under the MS4 Stormwater Program, should have a responsibility to make the jurisdictional status of these features clear in the rule language.

Northglenn request s that any facility designed and operated to treat stormwater runoff to meet the requirements of the Clean Water Act or local regulations for managing

stormwater should be included in this exclusion.

Furthermore, the existing regulations include exclusions for waste treatment facilities that are constructed to meet CWA requirements and are constructed in uplands. Currently, this exclusion is inconsistently implemented or misinterpreted by USACE and EPA staff at the national offices and regional regulatory f ield offices level. Clearly, additional language is necessary to restore the intent of this exclusion.

Northglenn requests that language be included in the Proposed Rule to state that treatment of stormwater runoff from rural and urban settings conforms to the exclusion and that the exclusion applies to all necessary and constructed components of the

stormwater treatment system. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Public Works, Orange County, California (Doc. #14994)

7.649 c. If the Agencies intend to ad opt the Proposed Rule, further consideration should be given to the distinction by Congress and the U.S. Supreme Court that MS4s are separateClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

419 and distinct from waters of the U.S. Rapanos v. United States , 547 U.S. 715 (2006) (holding that "waters of the U. S. excludes channels containing merely intermittent or ephemeral flow, ephemeral streams, wet meadows, storm sewers and culverts, and man

made drainage ditches; and that "point source" is separately defined in Section 402 of the CWA). (p. 2)

Agency Response: Please see sum mary response at 7.4.4. See the Technical Support Document at Section 1 concerning the relationship between point sources

and waters of the U.S.

SD1 (Doc. #15140)

7.650 Specific Exemptions are needed for Storm Water Practices

An increase in WOTUS could affect the construction of storm water runoff control features for SD1, co

- permittees, and developers. SD1 is also concerned that routine storm water maintenance, such as sediment removal from detention ponds and routine channel maintenance and debris removal, as well as green infrastructure practices, could also be inadvertently affected. These practices therefore need to be exempted from the rule and also need to be clearly stated in the rule so there isn’t confusion as to which storm water practices are exempte d.

SD1 supports the approach outlined by the Minnesota Cities Stormwater Coalition. This approach recommends incorporating exclusion language into the rule for storm water

control measures and BMPs that is more precise and clear. For example, the term

“con structed stormwater control measures” is too broad and should be replaced with the term “fully

- constructed stormwater control measures.” Fully

- constructed stormwater
control measures would be defined as man

- made structures, devices, measures, or Best Manag ement Practices (BMPs) that are constructed for the purpose of water quality treatment, stormwater volume reduction, stormwater rate control, flood control,

stormwater conveyance, or any combination of these purposes. Examples of fully

constructed stormwat er measures would include: constructed stormwater ponds, constructed stormwater wetlands, rain gardens, infiltration devices and structures, swales, Low Impact Development structures and BMPs, pipes, streets, curbs, gutters, roadside ditches, man

- made chan nels, storm drains, and other constructed stormwater control and conveyance structures, devices and features.

In this exclusion language, there must also include some exceptions to the exclusions with some types of fully

- constructed stormwater control meas ures and BMPs which will

be determined on a case

- by

- case basis. These types of exceptions to the exclusion could

be:

a. Fully

- constructed stormwater control measures that have been built at the

approximate location of similar types of natural waters (such as stormwater ponds constructed at the location of natural lakes or wetlands) shall not be considered to be fully

- constructed stormwater control measures.

b. Natural lakes, ponds and wetlands with stormwater conveyance pipes discharging to them and constructed o utlets shall not be considered to be fully

- constructed stormwater control measures.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

420 c. Stormwater control measures that are subject to the ebb and flow of the tide shall not be fully

- constructed stormwater control measures. (Neprash, 2014)

Testimony from the National Association of Counties (NACO) and the National Association of Flood and Stormwater Management Agencies (NAFSMA) illustrates the need for exemption of routine maintenance of storm water management facilities and roadside ditches (Williams 2014):

“ Over the years, numerous local governments and public agencies have expressed concerns that regional Corps offices sometimes require Section 404 permits for maintenance activities on public safety infrastructure conveyances. While a maintenance exemption f or ditches exists on paper, in practice it is narrowly crafted. Whether or not a ditch is regulated under Section 404 has significant financial implications for local governments and public agencies.”

This testimony also points out that if a maintenance pr oject is deemed jurisdictional, it is subject to many requirements of the CWA and other federal laws such as the National Environmental Policy Act and the Endangered Species Act. Negotiations over mitigation of environmental impacts and also special condit ions dealing with maintenance activities ensue, which often take years. SD1 agrees that maintenance activities for existing storm water management facilities and roadside ditches, such as channels and detention basins, should be exempt from Section 404 per mitting. Without these specific exemptions to the rule, municipalities and private organization may instead favor gray infrastructure over green infrastructure solutions to avoid the potential of having to obtain additional permits

under WOTUS and the cost s associated with delays due to permit backlog. (p. 7

- 8)

Agency Response: Please see summary response at 7.4.4. Please note that the proposed rule did not address which activities are regulated under the CWA; rather it addressed which waterbodies are jurisdictional. Com ments about activities such as maintenance are outside the scope of this rule.

Albuquerque Metropolitan Arroyo Flood Control Authority (Doc. #15221)

7.651 1. Regulation is Proper Under the MS4 Permit Program

... Nevertheless, the proposed rule would define the ind ividual components of the MS4 system as tributaries of traditional navigable waters (TNW), and therefore, waters of the U.S. themselves. This is in conflict with the distinction made by EPA that an MS4 is a system of conveyances that discharges to waters o f the U.S. , rather than being waters of the U.S. Such an interpretation creates a conundrum of inconsistency in applying the various parts of the CWA. When such an interpretation creates a conflict, the rules of statutory construction dictate that the laws and regulations must be read in a manner so as to harmonize the rules or statutes while giving them both effect. See e.g., Food & Drug Admin. v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133, 120 S. Ct. 1291, 1301 (U.S. 2000); see also 2A Sutherland Statutory Construction § 46:5 (7th ed.). As a result, AMAFCA urges the EPA to exclude MS4 systems from its definition of waters of the U.S. subject to its 404 jurisdiction.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

421 Although concerns may arise any time jurisdiction is not asserted ov er a waterway, those concerns are not applicable to MS4 systems. All of AMAFCA’s facilities are currently subject to detailed regulations under the MS4 Permit Program. Any water which reaches the Rio Grande River must meet EPA requirements or AMAFCA may be held liable. This includes the multitude of point sources of unknown origin which infiltrate the system. AMAFCA accepts responsibility for ensuring that the water it conveys through its storm sewers and facilities is of the proper quality when it reaches the river, including seeking out the responsible party for any unauthorized dumping or deposits as necessary. As a result, the enforcement requirements are minimized because there is only one point

source for contamination: the inlet from the MS4 to the ri ver, and water is routinely

monitored at this inlet.

However, if jurisdiction is asserted under section 404 of the Clean Water Act, AMAFCA is no longer able to assume responsibility for the quality of the water that reaches the river, which is the real con cern of the CWA. In fact, the quality of the water in the MS4 is only at issue because of the potential it has to eventually reach the river. This concern is addressed most properly under the MS4 Permit Program, which requires the water in the system to be of a certain quality before entering the river. The proposed rule fails to take into consideration that an MS4 system has water quality features as a matter of practice in order to comply with the CWA. While it is generally true that pollutants dumped int o any part of a tributary system are eventually washed downstream to a TNW, this is not the case in an MS4 system where the pollutants are removed as a matter of practice. The intent of the CWA is thus entirely covered by the NPDES permit. Furthermore, the NPDES permit is watershed based, meaning that the quality of the water in the river is viewed on a larger scale rather than just at each discharge point. This watershed based permit ensures that the river is fully protected as the effects of discharges ar e evaluated not only on an individual basis, but also in the aggregate to ensure there are no

detrimental effects.

In contrast, jurisdiction under Section 404 would focus not on the quality of the water reaching the river, but on the quality of the water w hich is actually in the MS4 system, based on the MS4 channels being classified as a “waters of the United States.” This means AMAFCA could no longer implement quality control features throughout the system to prevent impacts on the river. Instead, quality control features would need to be instituted prior to water entering the MS4 system. However, MS4s are intended to capture water at any number of locations to prevent fugitive stormwater from causing floods. As a result, there is no limit to the number of inlets into the system, as unmanaged water in any location has the potential to threaten the public health and safety. Installing water quality control features prior to water entering the MS4 system would prove to be a daunting and unrealistic task given the multitude of point sources which discharge into the MS4 system. This dual regulation is not only unnecessary, but would also become cumbersome to the point of unfeasibility.

This would be detrimental to both the public safety and the environment. AMAFC A’s facilities are strictly flood control facilities. They serve not only the public safety by capturing fugitive waters and conveying them safely, but they also clean the water that enters the system. While much of the water AMAFCA captures historically d oes not reach the river, even the water that does discharge into the river is significantly improvedClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

422 by virtue of AMAFCA’s intervention. The flood waters coursing the system are cleaned as they pass through the BMPs. Prior to implementation of the MS4 syst em, historical discharges reached the river without any water quality treatment.

More importantly, the reach of the proposed rule would make AMAFCA largely ineffective. Because many of the components of the MS4 system are inextricably linked together, asse rtion of jurisdiction over a portion of the MS4 system could result in assertion of jurisdiction over the entire system. Dual regulation carries increased expenses that AMAFCA could otherwise use to ensure that the water and the public safety are protected under the existing MS4 permit. Furthermore, as noted in Sections III.F.2 and III.I of the proposed rule, waters, such as geographic features, which will result in the discharges being subject to other CWA authorities, should be non

jurisdictional. MS4 sys tems should be treated no differently, particularly because they are heavily regulated under the CWA. (p. 3

- 4)

Agency Response: Please see summary response at 7.4.4.

Louisville and Jefferson County Metropolitan Sewer District (Doc. # 15413)

7.652 2) Clarify the Effect on Municipa l Separate Storm Sewer Systems (MS4)

a) J urisdiction : Based on the amended definition, MSD has significant concerns about the potential impacts of the rule on managing Municipal Separate Storm Sewer Systems (MS4's). Even though the term "MS4" is not mentio ned in the proposed rule, it applies to all sections of the Clean Water Act including the NPDES program. Any proposed amendment should address the relationship between MS4 stormwater programs and jurisdiction over ditches. Accordingly, MSD requests that th e final rule either expressly exclude MS4's from jurisdiction under Section (t) or provide additional guidance concerning the potential jurisdictional limits. As read, it appears that under the proposed rule, MS4's could qualify as "waste treatment systems " under Section (t)(I). Because MSD is responsible for managing and enforcing the MS4 system in Jefferson County, the concern is that if a MS4 becomes jurisdictional, in addition to the current regulation under 402(p), locations of outfalls, and therefore the point of regulation could be subject to change. MS4 permit holders would then not only be regulated at the point of discharge into a water of the US, but also when a pollutant initially enters the stormwater conveyance system. (p. 2

- 3)

Agency Response: Please see summa ry response at 7.4.4.

Central Massachusetts Regional Stormwater Coalition (Doc. #15443 .1 )

7.653 2. Proposed Rule, §328.3(b)(5) . The definition in this section of the Proposed Rule describes seven types of “features” that are not waters of the United States, incl uding “artificial lakes and ponds” and “non

- wetland swales”. Many stormwater treatment BMP and green infrastructure features are similar to the seven features described, but are not specifically excluded from being considered a WOTUS. Structures like rain gardens, gravel wetlands, vegetated swales, etc. should be affirmatively included as an eighth

feature under this section.

We offer wording more consistent with the MS4 Program, such as:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

423 “(viii) Stormwater Best Management Practices (BMPs) or other engineer ed control and/or treatment measures designed, installed, or constructed to mitigate the impact of nonpoint source

- and in some cases point source

- pollution on waters of the United States. These BMPs may be designed to reduce stormwater volume, peak flows , and/or nonpoint source pollution discharged to the environment through evapotranspiration, infiltration, detention, retention, filtration, and/or biological and chemical treatment, or a combination of these

methods.”

Alternately, the definition of “waste treatment system” section in §328.3(b)(1) could be revised to include this proposed definition of stormwater BMPs. (p. 2)

Agency Response: Please see summary response at 7.4.4.

7.654 5. General: We strongly recommend that the Proposed Rule clarify that enforcement of long term operation and maintenance of stormwater BMP features or measures (described in #2, above) should continue to be through the Clean Water Act program under which they serve a function, such as the MS4 Program, rather than through a separate parallel WOTUS ju risdiction. Otherwise, the Proposed Rule introduces the jurisdictional confusion that it aims to eliminate. (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Albuquerque, New Mexico (Doc. #15456)

7.655 ...As a Phase 1 Municipal Separate Storm Sewer System permi ttee (NMS000101), the COA’s storm water conveyance system is currently regulated under the Clean Water Act and therefore should be exempt from Waters of the U.S. status to avoid double regulation. Attempting to further regulate this system of natural tribu taries supplemented by man

- made channels that flow only during localized storm events will create an unnecessary and costly monitoring and maintenance burden. (p. 1)

Agency Response: Please see summary response at 7.4.4.

National Association of Clean Water Agencies (Doc. # 15505)

7.656 Stormwater Exemptions Must be Explicit

Earlier this month, EPA’s Local Government Advisory Committee (LGAC) provided the Agencies with recommendations on how the proposed rule intersects with the important issues facing local officials. One of the L GAC’s main recommendations is that “manmade conveyance components of MS4s be exempt from Waters of the United States. This includes manmade green infrastructure, roads, pipes, manmade gutters, manmade ditches, manmade drains, and manmade ponds.” NACWA endo rses and fully agrees with the LGAC’s recommendation for an exemption of manmade components of MS4s. Manmade wetlands in uplands constructed as part of an MS4 should also be included in the suggested exemption. This exemption would clarify that the rule is not intended to make MS4 collection systems jurisdictional under the CWA above the existing point of permitted discharge. This has been a point of significant concern for the municipal community, and the Agencies must clarify that MS4 collection systems a re not jurisdictional in the final rule.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

424 Green infrastructure (GI) practices are manmade and engineered components of wet weather management systems and thus should be included in the MS4 exemption. GI installations designed to meet CWA obligations or achi eve water quality compliance should not be jurisdictional waters. Many stormwater utilities use permanent and temporary, iterative best management practices (BMPs) such as diversions, sedimentation basins, and constructed GI to comply with MS4 permits and the rule should reflect the range of facilities that are used to convey, capture, treat and infiltrate stormwater. To avoid any interpretation of these structures as WOTUS, they should be clearly exempted from the jurisdictional definition. EPA itself has vigorously promoted GI as a “cost

effective and resilient approach to our water infrastructure needs that provides many community benefits” but any indication that GI could be classified as a WOTUS would significantly disincentivize its continued nationwid e adoption. Though EPA has verbally stated that the proposed rule is not intended to make GI installations jurisdictional, the final rule must explicitly indicate that manmade GGI and BMPs designed to meet CWA obligations or achieve water quality goals are not jurisdictional. (p. 2

- 3)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4. The agenc ies did not define the stormwater control feature exemption by using the term “man

made.” Because jurisdictional waters can be man

- made, using that term in the stormwater feature exclusion would be confusing.

West Bay Sanitary District, Novato Sanitary D istrict, West County Wastewater District, Union Sanitary District and West Valley Sanitation District, California (Doc. #16610)

7.657 ... channels and other conveyances used as part of a municipal separate storm sewer system (MS4) should be classified as "point so urces" since discharges from these conveyances require an NPDES permit to discharge pollutants to WOTUS. 33 U.S.C. §1342(P). Waters within an MS4 may be collected and possibly even treated prior to discharge, which is not an activity contemplated within WO TUS themselves. Without this distinction, retention and detention basins could be defined as WOTUS, requiring a 404 permit each time the sediment collected in those basins needed to be dredged out to maintain storage capacity, or an NPDES permit might be n eeded to discharge into those basins. These additional regulatory hurdles might make these Best Management Practices less attractive to local stormwater management agencies, and remove one of the best tools from the stormwater toolbox. (p. 6)

Agency Response: While the age ncies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dryland is appropriate. Please see summary response at 7.4.4.

Sacramento Stormwater Quality Partnership (Doc. #1700 5)

7.658 ...Combined, the new definitions and vague exclusions invite significant uncertainty with respect to how the Proposed Rule would be applied to MS4s and related structures. To avoid such a result, it is imperative that the Proposed Rule clearly distinguish MS4s as

not WOTUS.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

425 Federal regulations define a municipal separate storm sewer (i.e., MS4) to mean "a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man

- made channels v or . storm drains): . Designed or used for collecting or conveying storm water .. ..." (40 C.F.R. § 12220(b)(8)3 M54s are highly regulated, and NPDES permits provide legal authority and regulation for discharges from M54s to WOTUS. (See, generally, CWA, § 402(p)(3)(E); see also 40 C.F.R. §§ .12226, 12230

- 122.37.) MS4s are not themselves WOTUS; and, MS4s are required, at a minimum, to implement controls to reduce the discharge of pollutants to WOTUS to the maximum extent practical. (CWA, § 402(p)(3)(B)(iii) .) Such controls include nonstructural best management practices, structural hest management practices (BMPs), and other related infrastructure facilities. Examples of structural BMPs can include: ",(I) storage practices such as wet ponds and extended

- dete ntion outlet structures; (2) filtration practices such as grassed swales, sand filters and filter strips; and (3) infiltration practices such as infiltration basins and infiltration trenches." (See 64 Fed. Reg. 68722, 68760 (Dec. 8, 1999)) Examples of rela ted infrastructure facilities can include groundwater recharge basins and green infrastructure projects. Green infrastructure may include the creation of new habitat and recreational facilities and areas where runoff is infiltrated or dispersed.

Unfortuna tely, the Proposed Rule fails to specifically exclude MS4s (and related infrastructure and associated facilities) from being a WOTUS. Thus, many of the newly proposed definitions create significant uncertainty, and could be interpreted in a manner

that cou ld bring an MS4 and/or its related facilities into the jurisdictional 'definition of a WOTUS. The new definitions in the Proposed Rule identify Waters by category, 'and include tributaries, jurisdictional ditches, adjacent waters, and "other waters" with

s ignificant nexus to an existing WOTUS.

The type of stormwater. facilities and other related infrastructure projects of an MS4 system that are potentially vulnerable to jurisdiction under these new categories, include,

but are not limited to:

 MS4 conveyance facilities

 Detention and settling basins

 Storm water treatment systems

 Infiltration/Detention facilities ,

 Bioswales

 Groundwater recharge facilities

 Green infrastructure projects

...the Partnership recommends that the Proposed Rule be revised to clearly indicate that the definition of tributary does not, and is not intended to, include MS4 facilities. The Agencies can accomplish this by ensuring that, the exclusions

... are clear, concise, and specifically address storm water management facilities. The Agenci es also need to include text within the descriptive portion of the final rule that clearly and definitively,

states that MS4 facilities are not a WOTUS. Such a clarification is consistent withClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

426 previous EPA findings. (See 53 Fed. Reg. 49416, 49442 (Dec. 7, 1988) ["[W]aters of the United States are not storm sewers for purposes of this rule."].)

... Under the expansive ecoregion approach, many "other waters" throughout California will be included under CWA jurisdiction, unless specifically excluded. Arguably, any surface water body on the landscape that is not categorically exempted may be treated as a WOTUS if either Agency. determines that the surface water body in question, or in combination with other similarly situated waters, affects the chemical, physica l, or biological integrity of a traditional navigable water, interstate water, or territorial sea. Hydrologic connection (surface

- or subsurface) would be unnecessary to create significant nexus. Under such an approach, stormwater agencies in California wil l face significant uncertainty with respect to CWA jurisdiction for MS4 conveyance facilities as well as other stormwater related facilities. Further, the vagueness in the exclusions will only add to this uncertainty, which will not further the overall cla rity goals of the Proposed Rule.

Moreover, the Proposed Rule states that functions of waters that might demonstrate a significant nexus include sediment trapping, nutrient recycling, pollutant trapping and filtering, retention or attenuation of flood water s, runoff storage, export of organic matter, export of food resources, and provision of aquatic habitat. (79 Fed. Reg. 22,188, 22213 (April 21, 2014)) Many of these functions are identical to functions provided by stormwater structural BMPs. Thus, based on the Proposed Rule, many stormwater facilities could be found jurisdictional under the "other waters" category

. Yet again, however, such facilities were specifically created to serve these functions, and are implemented to ensure compliance with CWA NPDES MS4 permit requirements. Considering the broad and expansive nature of the "other waters" category, it is imperative that the exclusions

... specifically call out and include stormwater facilities. (p.

2

- 3, 4, 6)

Agency Response: While the agencies may not agree with all point s raised in this comment, they agree that a specific exclusion for stormwater control features built

in dry land is appropriate. See summary response at 7.4.4. Groundwater recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land: detention and retention basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling” or

under the stormwater control feature exclusion at (b)(6), depending on the source of

water. In effect, both have the same result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in dry land. Please note that the final

rule does not change the applicability of the Underground Injection Control program for Class V injection wells or subsurface fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part 144.

Ventura County Watershed Protection District (Doc. #1 8762)

7.659 The Proposed Rule's suggestion that some types of storm water facilities, infrastructure projects, and associated facilities could be regulated within the scope of a definitional WOTUS poses uncertainty and potential confusion among both the regulati ng entitiesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

427 and the regulated entities, and may increase the regulatory burden associated with implementation of MS4 permit requirements. The Ventura Countywide Stormwater Quality Management Program supports the California Stormwater Quality Association's (CASQA) recommendations that the Agencies revise the Proposed Rule to clarify that MS4s are not WOTUS, and that certain types of storm water related facilities discussed herein are also not considered to be WOTUS. Specifically, certain exclusions within th e Proposed Rule need to be expanded to include MS4 conveyance facilities and other related facilities. Exclusions needing expansion include: waste treatment system, artificial lakes, ditches, and swales. The Program also supports the revisions to the Propo sed Rule provided in CASQA's comment letter. These issues are summarized below:

1. MS4s are not WOTUS

2. New definition of 'tributary' could improperly include MS4 facilities

3. New definition of 'adjacent' could improperly include MS4 and other important

water resource facilities

4. 'Other waters' approach goes beyond the case

- by

- case significant nexus test

5. The exclusions for waters that are not WOTUS must be revised to incorporate MS4 conveyance and other related facilities. (p. 1

- 2)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dryland is appropriate. Please see summary response at 7.4.4.

Northern Arizona Municipal Waters Users Association (Doc. #9730)

7.660 ...Storm water systems should be clearly identified as not being "waters of the United States." (p. 1)

Agency Response: Please see summary response at 7.4.4.

Northwest Colorado Council of Governments Water Quality/ Quantity Committee (Doc. #10187)

7.661 QQ supports the cont inued exemption for tributary ditches and canals that are part of wastewater treatment systems. However, we propose that tributary ditches or canals that are part of stormwater management systems and water treatment systems also should be expressly exclude d from the definition of tributaries in particular, and waters of the United States more generally. (p. 4)

Agency Response: Please see summary response s at 7. 1 and 7.4.4.

Duke Energy (Doc. #13029)

7.662 b. The Proposed Rule Should Expressly Exclude Stormwater Management Facilities and Their Conveyances

Since stormwater management activities are not explicitly exempt under the proposed rule and it is unclear if they would be meet the requirements for the waste treatment exclusion, Duke Energy has concerns that man

- made con veyances and facilities for stormwater management could now be classified as a “water of the United States.”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

428 Stormwater control structures are located at many of Duke Energy’s various sites, from generation sites to individual substations. These entities a re not currently considered “waters of the United States.” Duke Energy owns and maintains hundreds of electrical substations, the majority of which include some form of stormwater control structure,

which include wet retention/detention basins. These basin s are used to capture, control, and treat the stormwater runoff from the substations and are necessary to ensure reliability of electrical equipment. A picture of one facility is included as an example.

Currently, these stormwater features are not regulate d as “waters of the United States” because they are isolated, man

- made stormwater control and treatment structures. They are regulated, however, through state programs such as the Environmental Resource Permit (ERP) program in Florida. The ERP program in F lorida was created in 1995 as a merger between two specific state programs, the wetland resource permitting program (WRP) and the management and storage of surface waters (MSSW) program. The intent was to streamline these regulatory programs without any lo ss of environmental protection.

The stormwater structures regulated under the ERP program must be designed and constructed to meet water quality (such as suspended solids and oil/grease) and water quantity (flood control) criteria. While industry and state officials within Florida consider these features to be waste treatment facilities, they arguably could not fit within the scope of the waste treatment system exclusion because they were designed to meet state requirements, not “the requirements of the Cle an Water Act,” as courts could narrowly construe applicability of the exclusion.

Consequently, under the proposed rule, these isolated features could be deemed jurisdictional as either “adjacent waters,” if c onstructed within a floodplain 398 of a jurisdictio nal water, or as “other waters” through aggregation of similarly situated waters. Additionally, more recently constructed control and treatment basins are often required by the state permitting authority to include a shallow littoral zone utilizing wetland vegetation to facilitate additional treatment. The impact of capturing such treatment systems as “waters of the United States” would be enormous. The stormwater treatment systems would no longer be able to serve their essential purpose (which is to treat stormwater), necessitating alternative control and treatment structures (which, themselves, could then be considered “waters of the United States”). Capturing such stormwater treatment systems cannot possibly be part of the aquatic inventory that Congress intended to protect under the CWA.

Lastly, if these stormwater control features, which include swales, detention/retention ponds, or surrounding littoral zones, were classified as “waters of the United States,” additional permitting burdens would apply. Fo r example, substation SPCC Oil Spill Response Plans could require significant revision to account for the increased notification and response requirements that would be mandatory if there were a spill to the newly designated “water of the United States.” A dditionally, a general permit would be needed

398 Determining the floodplain would be through the best professional judgment of the regulating agency and co uld be of a larger flood interval (i.e. 100 year) that would encompass a greater amount of surface area than what the retention pond was designed for (i.e. 20 or 50 floodplain).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

429 for herbicide or pesticide application for vegetation control. Moreover, a CWA § 404 permit could be required to remove vegetation when maintaining the pond.

While some of these impacts may only result in minor cost increases or regulatory burdens to any one substation or other electrical facility, the aggregate cost for hundreds of these facilities could be significant with no consequential environmental benefit. Since these entities were designed and construct ed for specific stormwater management activities, additional regulation is not appropriate and will not result additional environmental protection.

The agencies have stated that MS4 systems would not change status and would not

become “waters of the United States.” 399 It seems the agencies’ intent is to exclude these systems under the waste treatment exclusion, however, this is not evident in the language in the proposed rule. In addition, there is no justification why MS4 systems would be

included within the exclusion and other stormwater systems designed and constructed under state or local requirements would not.

Duke Energy recommends that all stormwater structures (retention ponds, detention ponds and conveyances), not just MS4 systems, be expressly excluded from the definition of “waters of the United States” or for the agencies to clarify that these entities are included under the waste treatment exclusion. (p. 46

- 48)

Agency Response: While the agencies may not agree with all points raised in this comment, they agre e that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4.

7.663 Section 402(p) of the CWA specifies that an NPDES permit is required for any “storm water discharge associated with industr ial activity.” EPA has historically recognized that collected stormwater is not a “water of the United States” and, in some cases, regulated as a “point source”. If a facility discharges or has the potential to discharge stormwater to a municipal separate storm sewer system or directly to “waters of the United States,” then that facility requires authorization under a NPDES industrial stormwater permit.

Stormwater management features are located everywhere, including in floodplains. With the proposed fundam ental change in jurisdictional determinations (jurisdictional unless excluded), stormwater collection systems could be considered jurisdictional “adjacent” or “other waters.” The conveyances associated with these systems could exhibit

characteristics that would classify them as jurisdictional tributaries per the proposed rule’s definition. This is disconcerting since there is not a specific exclusion included in the proposed rule for any stormwater collection system. EPA has mentioned that MS4 systems would qualify for the waste treatment exclusion, but this is not clarified in the rule. In addition, there are several other non

- industrial/non

- municipal systems in service that are regulated by the state and perform the same functions (collecting rainwater for safety and flood control). Duke Energy recommends that the agencies clearly assert that all water collected in stormwater management systems are not “waters of the United States” until discharged into such a water. (p. 53

- 54)

399 EPA Questions and Answers About Waters of the U.S. Proposal , September 6, 20 14 (Q13)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

430 Agency Response: While the agencies may not ag ree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

7.664 VI. Unanswered Questions

Despite the proposal’s stated objective to add clarity to the regulatory process, the proposal in fact creates great confusion and uncertainty...issues that must be addressed, through clarification and in the context of an ongoing dialog ue amongst stakeholders,

include:

...

 Will man

- made swales used to capture stormwater be jurisdictional (should have exemption);

(p. 6

- 7)

Agency Response: Please see summary response at 7.4.4.

EcoSynthesis Scientific & Regulatory Services (Doc. #14586)

7.665 Another important subj ect, alluded to above, that needs to be clarified, is the Proposed Rule’s intent and effect on regulation of constructed roadside ditches in locations where there is no antecedent historical drainage feature... application of the actual language of the Propo sed Rule would include them. This would have massive regulatory implications for municipalities of every size. The disincentive to implement stabilization of long

standing roadside erosion posed by the costs and timeline of delineating and obtaining permit s for such improvements would have negative consequences for water quality.

This concern extends also to every kind of permanent water quality BMP such as sediment basins with no continuous tributary connection to downstream waters:

maintenance of such fac ilities would presumably require a verified delineation, notification, and a permit, which also means NHPA Section 106 consultation and sometimes also ESA Section 7 consultation. This is impossibly onerous for small entities.

Delineation verifications alon e take 3

- 18 months from submittal. Added to the permit timeline, this would mean that, if it became evident that a large event (say an exceptional

10

- or 20

- year one) had filled a basin with sediment, it would usually be impossible to complete the regulato ry process prior to the beginning of the ensuing rainy season, when that sediment capacity will be sorely needed. The Rule absolutely needs to have exclusions for MS4 features of every kind except those that are realignments of

identifiable historic draina geways. (p. 5

- 6)

Agency Response: Please see summary response at 7.4.4.

National Rural Water Association (Doc. #14623)

7.666 Community storm sewer systems (MS4s) should be excluded from the final rule in a similar manner as waste treatment systems. Some communities’ storm sewer systemClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

431 conveyance facilities include channels that may discharge to traditional “Waters of the U.S.” (p. 4)

Agency Response: Please see summary response at 7.4.4.

Tarrant Water Regional Water District, Fort Worth, Texas (Doc. #14643)

7.667 The proposed rules jeopardize our abili ty to build cost

- effective BMPs because stormwater retention basins, constructed wetlands, bio swales, etc. could become part of the proposed definition of waters of the U.S., making permitting, construction, and maintenance more costly and time consuming. We therefore recommend that the rules

exclude these and other stormwater BMPs so that we can continue to insist that developers implement stormwater quantity and quality controls. (p. 3)

Agency Response: Please see summary response at 7.4.4.

Santa Clara Valley Water Distr ict (Doc. #14776)

7.668 The Proposed Rule is also inconsistent with stormwater regulation. In the West, open channels are often used to convey stormwater to ambient waters. Sometimes, portions of surface streets are used to convey stormwater. Both EPA and Califo rnia typically treat these artificial conveyances as part of the stormwater system, and require NPDES permits for discharges from the downstream end of these conveyances to ambient waters. But the Proposed Rule suggests that these conveyances may actually be tributaries classified as waters of the United States. The final rule should clarify that the waste conveyance systems, as well as waste treatment systems, are excluded from the definition. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.669 Municipal Stormwater Control Facilities. It appears that the Proposed Rule would regulate most Municipal Separate Storm Sewer System (MS4) as jurisdictional tributaries. If various components of MS 4s are treated as jurisdictional, local governments would be responsible for meeting additional requirements throughout the local system, which includes traditional components such as ditches, channels, pipes, and gutters, as well as “green” stormwater inf rastructure such as rain gardens. These additional requirements include numeric nutrient criteria applicable to Class III (“recreational”) water bodies, anti

- degradation requirements and other permit conditions. Ironically, green stormwater infrastructure, which is designed to clean water before a discharge to waters of the United States, would itself need to meet water quality standards. Local governments would also be subject to permitting requirements for any dredge and fill activities associated with MS 4 components, including some routine maintenance activities. The Agencies should categorically exempt MS4s from regulation under the Proposed Rule. (p. 29

- 30)

Agency Response: Please see summary response at 7.4.4.

Kentucky Stormwater Association (Doc. #18912)

7.670 Our KSA membe rship communities are already responsible, via the MS4 regulations, for maintaining the manmade stormwater drainage system / Stormwater Control MeasuresClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

432 (SCMs) in an environmentally sustainable manner. The extent to which SCMs and other management practice s are to be double

- regulated with the respective financial burden upon our local governments without additional benefit to our waterways is a primary concern. KSA requests that additional detail be provided for exclusion of manmade stormwater drainage / St ormwater Control Measures (SCMs). (p. 1)

Agency Response: Please see summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

7.671 The proposed rulemaking is also silent on Low Impact Development (LID). Many LID

features will fit the definitions outlined in the proposal and NAFSMA requests that EPA explicitly exempt LID / green infrastructure features from WOTUS. The vague language in the proposed rule could contradict the existing waste water treatment exemption and inadvertently recapture MS4s, including treatment BMPs, back under WOTUS. Commingling MS4s and WOTUS will forcibly misapply costly compliance requirements intended for receiving water bodies to the vast water collection and conveyance network. One of the many unanticipa ted consequences will be deterring the regulated community from implementing green infrastructure. NAFSMA acknowledges permit requirements for new construction activities, however, the maintenance of LID, green infrastructure,

and MS4 features should all b e explicitly exempt from WOTUS. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4. . Please note that the proposed rule did not address which activities are regulated under the CWA; rather it addressed which waterbodies are jurisdictional. Comments about act ivities such as maintenance are outside the scope of this rule.

American Rivers (Doc. # 15372)

7.672 4. Specifically Exclude Stormwater Treatment Systems

The proposed rule currently excludes waste treatment systems but it does not discuss what that term encompass es. 400 The definition of “waters of the United States” categorically excludes from CWA jurisdiction, “waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA.” 401 We request that the Agencies better define ‘waste treatment systems’ and in doing so include stormwater treatment systems, specifically systems that rely on infiltration and bioretention to replicate natural hydrology. 402 “Green infrastructure,” so far as it is defined as engineered stormwater management sy stems and practices that use or mimic natural processes to infiltrate or evapotranspirate stormwater runoff on the site where the runoff is generated, generally is employed as a stormwater management practice permitted under MS4 and other stormwater permit s. Given EPA’s consistent interest in encouraging the use of “green infrastructure” as a preferred approach to reducing runoff volumes and water quality impacts, it would be inconsistent to imply, or assert, that use of these practices incurs additional pe rmitting obligations. (p. 30)

400 Id . at 22217 [ Definition of WOTUS , 79 Fed. Reg. at 22219. ]

401 33 CFR 328.3(a) (2013).

402 See also, SAB review of the proposed rule, supra note 89 at 3

- 4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

433 Agency Response: Please see summary response s at 7. 1 and 7.4.4.

Association of State Floodplain Managers, Inc. (Doc. #19452)

7.673 6. The proposed rule includes language reiterating current exemptions for waste treatment systems. However, the regula tion of natural or artificial waters that are used to convey or treat stormwater is not clear; this is a long standing issue that is further complicated by the proposed rule.

Regulations and exemptions for waters conveying stormwater should be clarified i n the final rule and in implementing guidance. In additions, any distinctions between §404 dredge and fill requirements, and the regulatory scheme under §402

– including

stormwater treatment

– should be clarified.

 The basic underlying question of whether stormwater collection and treatment systems are considered to be wastewater treatment systems must be clarified. In some circumstances, artificial stormwater treatment ponds have reportedly been identified by federal agency staff as wastewater systems, but in other cases that

have been treated as waters of the United States. Situations where natural waters are used to collect, store, convey, or filter stormwater become even more complicated.

...

 A number of questions have been raised regarding jurisdiction ov er natural waters used to convey and filter stormwater. In some instances, these waters have been used to convey stormwater since prior to regulation under the CWA.

 The distinction between wetlands or other waters that store or convey stormwater,

and those wetlands used specifically to treat or filter stormwater, also raises questions regarding the scope of the wastewater system exemption. (p. 9)

Agency Response: Please see summary response at 7.4.4.

Florida Stormwater Association (Doc. #14613)

7.674 The Regulations be re

- propose d to confirm that ditches, canals and other waterways that convey wastewater or treated water to or from features where treatment occurs are covered by the wastewater treatment exclusion, including all sections of NPDES

permitted Municipal Separate Storm S ewer Systems (MS4s) that are upstream from the point of discharge. (p. 2)

Agency Response: Please summary response at 7.4.4.

7.675 ...unless there is a specific exclusion pursuant to the very limited exceptions as contained in the proposed regulations, one could interpret the regu lations as making all ditches, stormwater conveyances and attenuation ponds jurisdictional waters. (p. 4)

Agency Response: Please see summary response at 7.4.4.

7.676 Exclusions

– We recommend that subsection 40 CFR 230.3(t)(1) (concerning exclusions

from the definitions of “wat ers of the United States”) be revised as follows:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

434 Waste treatment and flood control systems, including treatment ponds or lagoons, stormwater retention and detention ponds, and man

- made and made

- altered structures, devices and conveyances that are designed to meet the requirements of the Clean Water Act, the conditions of an MS4 permit or to provide flood control

services.

Such an exclusion would be consistent with existing distinctions in the Clean Water Act and EPA regulations. Specifically, such a distin ction would confirm that sections of an MS4 upstream from a discharge point are not jurisdictional; that the MS4 system itself is not waters of the United States; that the features of an MS4 are clearly and unequivocally subject to the waste treatment excl usion and are distinct from waters of the United States. See, e.g. 33 U.S.C. § 1342(3)(B) (requiring NPDES permits to limit pollutant “discharges from municipal storm sewers”)(emphasis added); 40 C.F.R. §122.26(b)(9)(defining an

MS4’s “outfall” as “ the poi nt where a municipal separate storm sewer discharges to waters of the United States... ”) (emphasis added); Id. at § 122.26(d) (providing requirements for MS4 permittees to manage their systems to limit pollutants to jurisdictional waters); Id. at § 122.1(b) (“The NPDES program requires permits for the discharge of ‘pollutants’ from any ‘point source’ into waters of the United States.”). (p. 8)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for sto rmwater control features built in dry land is appropriate. Ple ase see summary response at 7.4.4.

Iowa Stormwater Education Program MS

- 4 (Doc. #14511)

7.677 The draft proposed rule includes changes to twelve portions of the Clean Water Act. In general terms, the draft proposed rule includes the same changes to all twelve sections. The following is new revised rule language that we recommend be added to this rule. It is expressed in a format appropriate for the proposed revisions to Part 328, Section 328.3. We req uest that similar language, revised as appropriate, be added to each section

included in this rule.

Added to PART 328

— DEFINITION OF WATERS OF THE UNITED STATES § 328.3 (c) “Definitions” (and other similar sections)

Fully

- constructed Stormwater Control Meas ures . The term fully

- constructed stormwater

control measures (SCMs) means man

- made structures, devices, measures, or Best Management Practices (BMPs) that are constructed for the purpose of water quality treatment, stormwater volume reduction, stormwater r ate control, flood control, stormwater conveyance, or any combination of these purposes. Fully

- constructed SCMs include the following man

- made features: constructed stormwater ponds, constructed stormwater wetlands, rain gardens, infiltration devices and s tructures, groundwater recharge facilities, stormwater reuse facilities, swales, bioswales, Low Impact Development structures and BMPs, pipes, streets, curbs, gutters, roadside ditches, man

made channels, storm drains, and other constructed stormwater cont rol and conveyance structures, devices, and features. SCMs that have been built at the approximate location of similar types of natural waters (such as stormwater ponds constructed at the location of natural lakes or natural wetlands, ditches constructed a t the location of natural streams orClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

435 creeks, or stormwater channels constructed at the location of natural rivers) shall not be considered fully

- constructed SCMs. Natural lakes, natural ponds, and natural wetlands with stormwater conveyance pipes dischargi ng to them and constructed outlets shall not be considered fully

- constructed SCMs. SCMs that are subject to the ebb and flow of the

tide shall not be considered fully

- constructed SCMs. (p. 1)

Agency Response: Please see summary response at 7.4.4.

7.678 Comments Directly Related to the New Recommended Revised Rule Language

Provided Above

1. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. Many more of these MS4s are not regulated and are not covered under an MS4 permit. Some MS4s (e.g.: counties a nd DOTs) have portions of their systems that are regulated under MS4 permits (inside an Urbanized Area) and portions that are not regulated (outside of Urbanized Areas). Taken together, all these MS4s own, operate, and maintain

millions of Stormwater Contr ol Measures (SCMs) and Best Management Practices (BMPs). These SCMs and BMPs include both structural and non

- structural practices, programs, and features. In order for these MS4s to operate and maintain their systems in

an efficient and cost

- effective mann er, the WOTUS jurisdictional status of the vast majority of these constructed SCMs and BMPs must be clear. Determining the WOTUS jurisdictional status of most of these constructed SCMs and BMPs on a case

- by

- case basis is not manageable or practicable. It i s essential that clarity be provided by having specific and explicit exclusion language in the new rule for most of these constructed SCMs and BMPs, including roadside ditches. Broad inclusion language and reliance on agency best professional judgment and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable.

2. If a significant number of urban SCMs are determined to be WOTUS, the operation and maintenance of those SCMs will become much more complicated, difficu lt, and expensive for the public entities responsible for these MS4s, without any corresponding positive environmental outcomes. In fact, the MS4s’ work and performance to protect, restore, and improve water quality will be diminished. Such determinations may be the result of agency judgment or the outcome of third party lawsuits, based on interpretations of rule language. This is part of the reason why an explicit exclusion for most urban

SCMs is needed.

3. Specific exclusion language is needed for urban SCMs. If, as has been stated publicly,

it is EPA’s intent that most of these waters and structures are not to be considered WOTUS, this should be clearly stated in the rule. Such a clear statement would formalize and clarify EPA’s intent. Such a clear stat ement would significantly reduce the probability of unfortunate interpretations in the future.

4. The current draft of the rule is almost silent about urban stormwater, in the preamble and the proposed rule language. This recommended revision language woul d rectify a portion of that deficiency. Adding exclusion language for urban SCMs to this rule would be appropriate, historic, and significant.

5. Because EPA is driving construction of MS4 SCMs and BMPs as part of its regulatory function, EPA has a respons ibility to define clearly the jurisdictional status of most urbanClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

436 SCMs in the new WOTUS rule. This is part of the reason why an explicit exclusion for

most urban SCMs is needed.

6. The definition for the term “tributary” provided in the proposed draft rule language is breathtakingly broad, especially the language related to man

- made and natural breaks. Under this language, it appears that many urban SCMs could be considered tributary to other Waters of the United States and, thus, themselves be WOTUS. This contradicts EPA’s public statements that most urban SCMs are not WOTUS. This is part of the reason why an explicit exclusion for most urban SCMs is needed. Broad inclusion language and reliance on agency best professional judgment and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable.

7. Section 1.a.vi. of the draft proposed rule (“All waters, including wetlands, adjacent to a water identified in paragraphs (a)(1) through (5) of this section”) states that al l waters adjacent to WOTUS are WOTUS. The definition of the term “adjacent” includes the term “neighboring”. The definition of the term “neighboring” includes waters located within the riparian area or floodplain of a WOTUS. Under this rule language, it ap pears that constructed urban SCMs in the riparian areas or floodplains of WOTUS would be considered WOTUS. This contradicts EPA’s public statements that most urban SCMs are not WOTUS. This is part of the reason why an explicit exclusion for most urban SCMs is needed. Broad inclusion language and reliance on agency best professional judgment and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable.

8. The approach with this new recommended revised rule language is to provide a broad exclusion for most types and the vast majority of urban stormwater SCMs, BMPs, and roadside ditches. The authors recognize that it may be appropriate that some types of urban SCMs are determined to be WOTUS, on a case

- by

- case basis. T o this end, the new recommended revised language includes “exceptions to the exclusion” in the definition for “fully

- constructed SCMs” (see the last three sentences). We urge EPA and the Corps to consider this approach for the final rule language. This app roach allows for a categorical exclusion for most urban SCMs but also allows for some types of urban SCMs to be determined to be WOTUS, on a case

- by

- case basis. If additional exceptions are needed and appropriate for “fully

- constructed SCMs” or exceptions are needed and appropriate for some types of roadside ditches, we urge EPA and the Corps to use this approach and add exceptions as needed.

9. We urge EPA to add explanatory language to the preamble to clarify its approach for urban SCMs. The preamble shou ld be as clear for urban SCMs and roadside ditches as it is for agricultural waters, flows, practices, and ditches.

10. The exclusion language in the current proposed rule (“Waste treatment systems, including treatment ponds or lagoons, designed to meet th e requirements of the Clean Water Act.”) is inadequate for urban SCMs. Many urban SCMs were constructed for and serve purposes other than “waste treatment”. Many urban SCMs were designed for purposes other than meeting “the requirements of the Clean Water Act”. For example, this language does not cover many SCMs constructed in non

- permitted MS4s. This language would not cover urban SCMs and roadside ditches constructed the passage ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

437 the CWA. The new recommended revised rule language is intended to address these

deficiencies.

... 14. The terms “stormwater control measures” and “best management practices” are widely used and very broadly defined, in common usage among stormwater management professionals and regulators. They are used to describe both non

- structu ral and structural practices, programs, and constructed features. A portion of the range of non

- structural and structural BMPs can be found at a Web site developed by USEPA for the MS4 permitting program: “National Menu of Stormwater Best Management Practi ces” at this Web URL: http://water.epa.gov/polwaste/npdes/swbmp/

15. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. Some are cities. Others are various types of public entities (DOTs, counties, non

traditional MS4s, etc. ). Some of these MS4s are regulated under the MS4 NPDES permitting program. Many more of these MS4s are not regulated and are not covered under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portions of their systems that are regulated under MS4 p ermits (inside an Urbanized Area) and portions that are not regulated (outside of Urbanized Areas). The exclusion language proposed here applies to all urban SCMs, regardless of whether they are covered under an MS4 permit or not. It may be appropriate to include language in this rule providing an exclusion for urban SCMs that are within the boundaries of permitted MS4s, but that is not the goal of this recommended rule revision. It is essential, for all the reasons listed above, that an exclusion be provid ed for the vast majority of urban SCMs, regardless of MS4 permit status.

16. The term “stormwater control measures” (SCMs) is used in this recommended revised rule language because of its use in the National Research Council’s report from

2008 “Urban Storm water Management in the United States”. (p. 2

- 6)

Agency Response: Please see summary response at 7.4.4.

Water Environment Federation (Doc. #16584)

7.679 Impacts on MS4 Communities: The proposed rule will impact MS4 communities as it relates to the issue of waste treatment system exclusions in the context of stormwater management. Currently, exclusions listed in 40 CFR 122.3 specifically target discharges associated with pest control, nonpoint sources and agricultural activities, sewage and industrial wastes, water transfer activi ties5, and even sewage discharged from vessels.

Not included here are stormwater management and treatment systems. The proposed rule plainly states that it “does not change regulatory exclusions for waste treatment systems.” However, EPA and the Corps do n ot intend for traditional stormwater practices, such as detention ponds, or green infrastructure practices, such as bioretention facilities and permeable pavements, to be considered jurisdictional Waters of the United States, but the lack of language expli citly outlining the exclusion of these systems leaves the rule open for interpretation as to whether stormwater controls are considered jurisdictional. WEF asks that EPA specifically exempts these so to avoid their inclusion.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

438 To clarify that waters associa ted with stormwater infrastructure are not considered Waters of the United States, WEF suggests that specific terms, such as “stormwater control measures” or “best management practices,” be integrated into the regulations and clearly exempted. This would h elp to codify that infrastructure used to treat, manage, infiltrate, or retain urban stormwater runoff is covered under the waste system treatment exclusions. The rule also should further define the systems to which the exemption applies and could include man

- made structures and devices as well as treatment measures used to improve water quality, reduce stormwater volume, control flow rate and flooding, convey stormwater, or any combination of these purposes. WEF suggests the following language to address t his issue:

Added to (c) “Definitions”

“Fully

- constructed Stormwater Control Measures. The term fully

constructed stormwater control measures (SCMs) means man

- made structures, devices, measures, or Best Management Practices (BMPs) that are constructed by th e purpose of water quality treatment, stormwater runoff volume reduction, stormwater runoff rate control, flood control, or any combination of these purposes. Fully

- constructed SCMs include constructed stormwater ponds, constructed stormwater wetlands, rai n gardens, infiltration devices and structures, Low Impact Development structures and BMPs, and other stormwater control and conveyance structures, devices, and features. SCMs that have been built at the approximate location of similar types of natural wat ers (such as stormwater ponds constructed at the location of natural lakes or wetlands, ditches constructed at the location of natural streams or creeks, or stormwater channels constructed at the location of natural rivers) shall not

be considered to be fu lly

- constructed SCMs. Natural lakes, ponds, and wetlands with stormwater conveyance pipes discharging to them and constructed outlets shall not be considered to be fully

- constructed SCMs.”

Added to “(b) The following are not “waters of the United States”

n otwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of

this section

- (5) The following features:”

(viii) Fully

- constructed stormwater control measures.

The term “Stormwater Control Measures” is used in the 2008 National Research Cou ncil report “Urban Stormwater Management in the U.S.” and would present a simple exclusion language to a now unclear provision. WEF finds that the use of the term “fully

constructed SCMs” is narrow enough to allow a reasonable application of what otherwise could be a broad term. We also intend for this to be narrow and by listing examples, achieve such narrow objective. (p. 7

- 8)

Agency Response: Please see summary response at 7.4.4.

California Stormwater Quality Association (Doc. #16606)

7.680 The Proposed Rule’s suggestion that some types of stormwater facilities, infrastructure projects, and associated facilities could be regulated within the scope of a definitional “waters of the United States” (WOTUS) poses uncertainty and potential confusio n amongClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

439 both the regulating entities and the regulated entities, and may increase the regulatory burden associated with implementation of MS4 permit requirements. CASQA recommends the Agencies revise the Proposed Rule to clarify that MS4s are not
WOTUS , an d that certain types of stormwater related facilities discussed herein are also not considered to be WOTUS . Specifically, CASQA recommends that certain exclusions within the Proposed Rule be expanded to include MS4 conveyance facilities

and other related f

acilities. Exclusions needing expansion include: waste treatment system, artificial lakes, ditches, and swales.

...the Proposed Rule states that functions of waters that might demonstrate a significant nexus include sediment trapping, nutrient recycling, pol lutant trapping and filtering, retention or attenuation of flood waters, runoff storage, export of organic matter, export of food resources, and provision of aquatic habitat. (79 Fed. Reg. 22,188, 22,213 (April 21, 2014).) Many of these functions are ident ical to functions provided by stormwater treatment control BMPs. Thus, based on the Proposed Rule, many stormwater facilities could be found jurisdictional under the “other waters” category. Yet again, however, such facilities were specifically created to serve these functions, and are implemented to ensure compliance with CWA NPDES MS4 permit requirements. Considering the broad and expansive nature of the “other waters” category, it is imperative that the exclusions, discussed below in section II, specific ally identify and include stormwater facilities. (p. 2, 6)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #19599)

7.681 The broad definitions in the proposed rulemaking, especially the definition of Tributary in conjunction with Adjacent, can lead to the conclusion that MS4s woul d be deemed

Waters of the US. The distinction between MS4s and WOTUS is critical and begs the question of how CWA Sections 303 and 402 will be applied to historic MS4s deemed to be WOTUS. NAFSMA requests that the EPA clearly define what is considered to be an MS4 and what is determined to be a WOTUS, and reaffirm that an MS4 cannot be WOTUS. (p. 1)

... The (b)(1) Waste Treatment Systems exemption does not clearly address stormwater treatment systems such as bioswales and constructed wetlands treatment systems

. NAFSMA urges the federal agencies to clarify that such water quality treatment systems constructed to meet the requirements of the CWA are exempt. In addition, off

‐ channel groundwater recharge basins, constructed adjacent to WOTUS should also be exempt. (p. 1, 2)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

440 Honorable Congressman Ed Perlmutter and Honorable Congressman Mike Coffman (Doc. #17456)

7.682 Additionally, we are hearing concerns about Municipal Separate Storm Water Sewer Systems (MS4s). It is common for ditch es and other stormwater components to be connected to an MS4 in efforts to reduce and recycle stormwater runoff. Clarity is needed on exemptions for these systems as they are already permitted under the National Pollution Discharge Elimination System. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Honorable Representative Frankel, Honorable Representative Napolitano and Honorable Representative Dina Titus (Doc. #17458)

7.683 The Florida Department of Environmental Protection currently regulates surface water

manage ment systems under statewide environmental resource permitting programs that additionally provide certification under Section 401 of the Clean Water Act that the systems comply with the applicable provisions of the Clean Water Act. While the proposed rule preserves the existing exemption for wastewater treatment systems from being considered WOTUS, currently permitted surface water management systems could arguably fall within the definitions articulated under the proposed rule. Will the agencies explicitly exempt surface water management systems that are permitted under state law and meet state water quality standards from being considere d WOTUS? If not, why not?

... If the agencies feel as though the above concerns [stormwater management practices] currently fit under the existing waste treatment exemption to the "Waters of the United States" rule, please provide citations to existing regulations, guidance documents or other sources to support such a proposition. (p. 2, 3)

Agency Response: Please see summary response at 7.4.4

.

7.4.5. Other

Summary Response

Please see Summary Response above for New Exclusions/Language from Commenters

Specific Comments

Oak Ridge National Laboratory (Doc. #14463)

7.684 The definition should not deter the beneficial, non

- CWA use of water management features by failing to clearly exclude them from jurisdiction. The proposed definition raises jurisdictional uncertainty for some voluntary water management features.

1. Water management features required to be constructed by a CWA program but have

ceased to function fo r the purposes of the CWA compliance but are voluntarily left in place. Example: Storm water runoff associated with construction activity is discharged to a project

- related storm water detention basin. After the constructionClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

441 activity is completed, the basi n is not removed and serves the purpose of detaining storm water runoff from the area of the completed project.

2. Water management features required by a non

- CWA program such as a state or local requirement.

Example: Wetlands constructed to mitigated impact s under a state program.

3. Water management features not required but voluntarily constructed to achieve sustainability goals.

Example: A water feature is constructed in uplands to help achieve LEED certification for a new building or development by capturi ng roof runoff. As time passes, the water feature develops flora and fauna common to ponds or wetlands. (p. 1)

Agency Response: With respect to items 1 and 3

, see summary response at 7.4.4. With respect to point 2

, the rule excludes stormwater and wastewater treatment features constructed in dry land. If the waters in question meet these criteria, they

would not be considered waters of the United States.

U.S. House of Representatives Committee on Science, Space and Technology (Doc. #16386)

7.685 The fact that your rule covers all waters in a flood plain calls into question the municipal, industrial and agricultural use of water. Water from rivers or groundwater aquifers is appropriated or withdrawn (under state law controlling the ownership of water) by municipalities, industr y, farmers, and others for use. It may be stored in ponds. It may be conveyed in ditches all year round. But, until it is discharged back into a water of the U.S., any water that is in use should not be considered a water of the U.S. If it is treated,

then the water might be considered part of an exempt waste treatment system, but not all water that has been used needs to be treated and some water is never discharged back to a

water of the U.S.

In your outreach sessions, EPA and the Corps have told people that you did not intend to regulate these waters. Staff has even suggested that the role does not reach water that is in use because it is no longer considered "waters" or because a pond or ditch was excavated in uplands.

Unfortunately, there is no clear e xemption in the proposed rule that supports these assurances. However, a 2005 EPA General Counsel memo on water transfers says that it is EPA's longstanding position that water that when is withdrawn from navigable waters for an intervening industrial, mun icipal or commercial use and then reintroduced to navigable waters, that reintroduction requires a permit, So, water loses its status as "waters of the United States" when it is being used.

Will the final rule will clearly explain that it does not regulate water that is withdrawn, collected, transported, stored, or used for an intervening industrial, municipal, or commercial use, and this includes all management of water internal to a particular site? (p. 16

- 17)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

442 Agency Response: Please see summary response at 7.4.4. The 20 05 memo referred to in this comment concerns whether there is an “addition” of pollutants in this situation, not the jurisdictional status of a waterbody.

Alaska State Legislature, Alaska Senate Leadership (Doc. #7494.1)

7.686 IV. Permafrost should be excluded from CWA jurisdiction as it is a "subsoil" entity without a "continuous surface connection" that maintains or improves "downstream water quality."

The agencies are seeking comment on other categories of water which do not have a significant nexus and are not jurisdictional. 403

We recommend that permafrost be added to 33 C.F.R. § 328.3(b), because permafrost is cryogenically isolated, does not have a significant nexus to other water, and is not jurisdictional under the CWA. 404

As most Alaskans know, permafrost, as a permanently frozen material underlying the

solum 405 or a perennially frozen soil horizon, does 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. It is cryogenically isolated. As a result, permafrost does not have a "significant nexus" and is beyond jurisdiction pursuant to the Rapanos decision. 406

The Rapanos decision specifically stated that only wetlands with a "continuous s urface connection" to bodies that are waters of the United States in their own right are adjacent

to such waters and covered by the CWA. 407 As permafrost is, per se, a "subsoil" entity without a "continuous surface connection," it should properly be excluded from CWA jurisdiction.

Noteworthy: Instead of providing flow, permafrost inhibits flow.

Rivers crossing vast permafrost regions are hydrologically isolated by the underlying permafrost. Isolated patches of permafrost effectively seal surface vegetative ma terials from underlying groundwater. There is no recharge through permafrost. Nor does permafrost serve to maintain or improve water quality (or beneficially affect the chemical, physical or biological integrity of traditional navigable rivers, streams,

tr ibutaries, lakes, or ponds).

Permafrost does not demonstrate a significant function to the watershed by serving as a sediment trap. Because it is a nutrient sink, it is not a source of nutrient recycle. It does not trap pollutants but is, instead, an emitt er of carbon monoxide and methane.

403 Per Definition of "Waters of the United States" Under the Clean Water Act, 79 Fed. Reg. 22,252 (April 21, 2014), and concurrent to the broad policy objectives of the CWA, permafrost should properly be included under 33 C.F.R. § 328.3(b).

404 The agencies mu st take this opportunity (without relying on "regional supplements" produced in violation of the Administrative Procedure Act ("APA")) to correctly designate permafrost as non

- jurisdictional under the CWA.

405 "Solum" is the upper layers of a soil profile. S ee http://dictionarv.reference.com/browse/solum.

406 Rapanos , 126 S.Ct. 2208, 547 U.S. 715.

407 See Rapanos , 126 S.Ct. at 2212

- 2213 , 547 U.S. at 716

- 717 .Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

443 Permafrost does not serve to retain floodwaters. Nor does it provide organic matter to the organic

- starved arctic and subarctic rivers and streams.

Permafrost does not provide food resources, nor aquatic habitat. The upla nd habitat it provides for birds is neither unique nor linked specifically to endangered species.

The lack of hydrologic connection to traditional streams and waters is not a function of

man

- made ditches or canals; it is a factor of it being permanently frozen. Permafrost ice lenses have persisted through not only the current periglacial period, but are preserved in underlying strata from the prior 30 to 40,000 year old ice age (having persisted through this and the prior periglacial period).

The nexus, a t best, between permafrost and traditional waters is limited to runoff of snow melt. It occurs in a very limited timeframe that precedes the growth season. The shallow and insignificant nature of the connection is best illustrated by the improved functiona lity of disturbed watersheds. It is not a continuous surface connection. The drainage can vary from season to season depending on snow drift and the erratic pattern of a given year's

snowmelt.

Isolated areas of permafrost otherwise surrounding by uplands h ave even less connection to traditional waters, often impeding or preventing groundwater flow.

Permafrost is not "surface water." The minimal phreatic "groundwater" that forms a few inches below the surface is not a "significant connection" that provides b eneficial functions to the waters of the United States. (p. 5

- 6)

Agency Response: The agencies agree that permafrost is not “surface water.” As noted, it is a term that refers to subsurface conditions, specifically, permanently frozen soil. As such, permafrost is not, in and of itself, a water of the U.S. Similarly, permafrost itself is not a “surface connection,” continuous or otherwise.

Office of Water Management, Pennsylvania Department of Environmental Protection (Doc. #7985)

7.687 The proposed definitions do not exclude wet weather/stormwater conveyance or
treatment systems . The proposed rule would include wet weather or storm water conveyance and treatment systems as regulated waters of the US. This result is unrealistic and unsound from the scientific perspective. The application to current regulated efforts to treat and manage storm water through pipes, conveyances, and other engineered structures, or through passive green infrastructure practices, would result in these activities being categorized as waters of the US. EPA has indicated in the Q&A related to the rule that this is not the intention, but language in the rule should be added to the exemptions in order to clarify this. (p. 6)

Agency Response: Please see summary response at 7.4.4.

State of Idaho (Doc. #9834)

7.688 3. Exclusions

Th e Proposed Rule should specifically exclude additional waters and features generally considered to be outside the scope of CWA jurisdiction, including:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

444 a. Farm ponds, stock ponds, irrigation ditches, and the maintenance of drainage ditches, as currently exclu ded under the CWA 's agricultural exemption;

b. Man

- made dugouts and ponds used for stock watering or irrigation in upland areas that are not connected to surface waters; and

c. Dip ponds that are excavated on a temporary, emergency basis to combat

wildfires and address dust abatement. (p. 5)

Agency Response: Recognizing the vital role of farmers in providing the nation with food and fiber, the C lean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal farming activities such as seeding, harvesting, cultivating, planting, soil and water conservation practices, and other activities from the Section 404 permitting requirement. “Normal” farming, silviculture, and ranching is clarified in the agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and ongoing activities to distinguish from activities needed to convert an area to farming, silviculture, or r anching and activities that convert a water to a

non

- water. Nothing in this rule changes the implementation of the exemptions und er 404(f).

The final rule also contains an exclusion for “Artificial lakes and ponds created in dry land and used primarily for uses such as stock watering, irrigation, settling basins, rice growing, or cooling ponds.” In the exclusion for artificial lake s or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or

recreati on. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another incidental beneficial use, such as temporary ponds constructed in dry land for the purpose of combating wildfires.

State of Hawaii Department of Transportation (Doc. #10184)

7.689 ...green infrastructure, which includes existing stormwater treatment systems and low impact development stormwater treatment systems, is not explicitly exempt un der the proposed rule. HDOT uses green infrastructure as a stormwater management tool to lessen flooding and protect water quality by using vegetation, soils and natural processes

to tr e at stormwater runoff. The proposed rule could inadvertently impact a n um ber of these facilities by requiring Section 404 permits for green infrastructure construction projects that are jurisdictional under the new definitions in the proposed rule. Additionally, it is unclear under the proposed rule whether a Section 404 perm it will be required for maintenance activities on green infrastructure areas once the area is established. (p. 2)

Agency Response: Please see summary response at 7.4.4.

New Mexico Department of Agriculture (Doc. #13024)

7.690 Closed BasinsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

445 According to consultation with the New Mexico Environment Department, waters within

closed basins do not drain into any navigable or interstate waters and have not historically

been under the jurisdiction of the CWA Instead, these waters are under state jurisdiction.

In New Mexico closed basins are defined as "closed with respect to surface flow if its topography prevents the occurrenc e of visible outflow. It is clo sed hydrologically if neither surface nor underground outflow can occur." Therefore, NMDA requests the

addition of waters within "cl osed basins" to the list of exclusions presented in this proposed rule, as they cannot satisfy any criteria req uired for a water to b e jurisdictional.

Also, the former definition of Waters of the U

. S . includes in part (c), "All other waters

such as... play a lakes." Will playa lakes be excluded due to their hydrologic disconnect from major waterways or are they assumed to be included under one of the new Waters

of the U.S. categories? (p. 10)

Agency Response: The agencies did not exclude closed basins as a category by

rule f rom coverage under the final rule, but recognize that all categories of waters covered require a significant nexus to traditional navigable waters, interstate waters, or territorial seas. If that nexus is absent, then the waters in question are not

conside red “waters of the United States.”

Although some commenters suggested additional subcategories of waters for consideration, such as playa lakes and kettle lakes, the agencies at this time are not able to determine that the available science supports that the suggested additional subcategories of waters as a class have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas. However, to be clear, under the rule, individual waters of the suggested additional subcategor ies are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) (e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water, or one that is 2,000 feet from a jurisdictional tributary and is determined on a case

- specific basis to have a significant nexus to a traditional navigable water, interstate water, or the territorial seas).

Division of Aviation, North Carolina Department of Transportation (Doc. #14766)

7.691 The Division of Aviation (DoA) proposes an additional exclusion by regulation based on existing Federal Aviation Administration Orders and Advisory Circulars regarding safety of the traveling public. The following are the documents DoA refers to:

 14 CFR 139. Ti t le 14: Aeronautics and Space. PART I3 9

- CERTIFICATI ON OF

AIRPORTS http://www.faa.gov/airponslairporl_satety/part139_cert/

 FAA Advisory Circu lar J50/5200

- 32 Reporting Wildl ife Aircraft Strikes

 FAA Advisory Circ ular 150/5200

- 33 Hazardous Wildlife Att ractants On or Ne ar Airports

 Memorandum of Understanding between the United States Department of Transpo rtation Federal Aviation Administrat ion and the United States Department

of Agriculture Anim al and Plant Health Inspection Ser vice Wildlife Services.

June 2005Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

446 http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1015&context=birdstri

keother

 Significant Wildlife Strikes to Ci vil Aircraft in the United States (1990

- 2014) http://www.faa.gov/airports/airport_safety/wildlife/resources/media/sig_strikes_1 990_2014.pdf

 Wildlif

e Hazard Management at Airports

- A Manual for Airport Personnel http://www.faa.gov/airports/airport_safety/wildlife/resources/media/2005_FAA_

Manu al_complete.pdf

Though these resources regulations and guidance refer to "wildlife hazards," birds makeup 97% of the reported strikes to aircraft. Approximately 61% of bird strikes occur when the aircraft is at a height of 100 feet or less above ground le vel (AGL). 74% occur at 500 feet or less AGL, and 92% occur at or below 3,000 feet AGL. These numbers clearly show the vast majority of bird strikes occur within the airport property during

take

- off and landing. Research has also proven that standing water on airport property and surrounding properties attract hazardous birds and that these birds f1y at altitudes hazardous to aircraft operating in the same areas. (p. 1

- 2)

Agency Response: The agencies believe the current regulations, policy guidance, and memoranda adequatel y address this issue. Therefore the agencies did not add a specific exclusion relating to wildlife hazards.

7.692 In North Carolina, the Department of Environment and Natural Resources (NCDENR) and DoA partnered with several other agencies to assist in the passi ng of legislation prohibiting the siting of any stormwater BMPs that promotes standing water on or near North Carolina airports. The legislation is based upon FAA separation criteria, wildlife hazard guidance, the FAA Wildlife Strike Database trends, and o ther relevant research showing how some stormwater BMPs can be extremely hazardous to aircraft operating in the area of the airport property. The NCDENR Stormwater BMP manual has added Chapter 13 "Public Airports" and can be accessed here: http://portal.ncdenr.org/c/document_library/get_file?uuid=c7a8e5a2

- f141

- 4612

- 817a

43c48c2f108b&groupId=38334

. This document supports the legislation, G.S. 143

- 214.7(3c) & (c4) located here: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_143/
GS_143

- 217.7.html

. DoA is proud to have been involved with this e ffort

, as it is immediately working to make public airports in NC sa fer. In order to continue this trend

, we respectfully request to haw BMPs located on public airports added as excluded by the definition of "waters of the U.S." Additionally DoA requests extremely wide latitude be given to BMPs within the FAA defined separation di stance for wildli fe attractants of five miles. We ask for as

few as possible of these BMPs be label ed as "waters of the U.S."

Severa l factors contribute to the rising number of bird/aircra ft strikes. Successful wildlife conservation efforts and qu ieter aircraft engines are two such factors. The U.S. Army Corps of Engineers in North Carolina is very aware of Bird Aircraft Strike Hazard (BASH) issues. NCDENR is now also aware of the unique challenges Airports have to preserve water qual ity. DoA feels EPA may lack vis ibility on this issue and therefore thisClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

447 exclusion would serve to educate further how dangerous standing water can be on

air ports. Just as strike reportin g is rising, the number of dead ly and damaging strikes is going down. This is a direc t result of following a protoco l of managing hazardous wildlife at airpo rts that includes wildlife population management

, ha bitat modi ficatio n
, land use planning

, training

, harassment , and depredation on and ne ar the airport property. The exclusion we seek fits into the category of “habitat modification", speci fically

, avoiding construction of

, or removing area s of standing water

, which ar e pr oven attractive to birds. (p. 1

- 3)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. Features that meet these criteria are not conside red “waters

of the United States.” The agencies believe the current regulations, policy guidance, and memoranda adequately address this issue. Therefore the agencies did not add a specific exclusion relating to habitat modification.

Florida Department of E nvironmental Protection (Doc. #15080)

7.693 Regulated Discharge Systems

The federal agencies propose no changes to the agencies' regulations that exclude from the definition of "waters of the United States" waste treatment systems designed to meet

Clean Water Ac t requirements. 79 Fed. Reg. 22,217. In addition, the federal agencies intend no change to the statutory and regulatory exemptions from National Pollutant Discharge Elimination System ("NPDES") permitting requirements under section 402 of

the Act. 79 Fed. Reg. at 22,218. The proposal does not, however, appear to expressly address stormwater management or treatment systems that discharge through outfalls permitted pursuant to section 402. These systems, which often consist of municipally

owned or operated st ormwater treatment systems, traditionally have been regulated as "point sources" that discharge to "waters of the United States." These systems serve a critical pollution treatment role in Florida and treating them as "waters of the United States" subject to water quality criteria within their permitted boundaries could limit their viable use in treating urban and agricultural area runoff.

Similarly, Florida's large Everglades Stormwater Treatment Areas, which function as a major component of Everglades res toration, were built and are operated to remove excess nutrients from stormwater runoff before discharging into the Everglades and other natural areas. These constructed wetlands have an effective treatment area of 57,000 acres and are permitted as point s ources through the NPDES program.

 The Department asks that the federal agencies clarify whether water bodies that could be considered tributaries or adjacent waters under this proposal, but that comprise a system having an outfall that is permitted under s ection 402 of the Act, particularly stormwater treatment systems, would constitute "waters of the

United States."

 The Department asks that the federal agencies clarify whether the agencies intend states to apply water quality standards or develop total max imum daily loads under section 303 of the Act for water bodies that comprise a system having anClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

448 outfall that is permitted under section 402 of the Act, but that also may meet the proposed definition of "waters of the United States." (p. 7)

Agency Response: Please see summ ary response at 7.4.4

.
7.694 Dispersed Water Storage

The federal agencies propose to exclude from the definition of "waters of the United States" artificially irrigated areas that would revert to upland should application of irrigation water to that area cease, and artificial lakes or ponds created by excavating or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing. 79 Fed. Reg. at 22,218. The proposal does not appear to expressly address artific ial water bodies created by excavating or diking dry land as part of water quality or water quantity improvement projects.

Since2005, the State of Florida, through its regional water management districts, has been working with a coalition of agencies, envi ronmental organizations, ranchers, and researchers to enhance opportunities for storing excess surface water on private and public lands. Managing water on these lands, known as the Dispersed Water Management Program, reduces the amount of excess water ult imately discharged to coastal estuaries during the wet season. Dispersed water is defined as shallow water distributed across parcel landscapes using relatively simple structures. Shallow water retention also provides valuable groundwater recharge for wate r supply, opportunities for water quality improvement, and rehydration of drained systems. Through July 2014, in the greater Everglades system, approximately 47,400 acre

- feet of water retention and storage has been made available through cooperative agreem ents, interim lands or environmental services projects.

In addition, the Department and the South Florida Water Management District committed a total $3 million this year for three pilot projects in the St. Lucie River watershed to test the concept of stor ing excess surface water on privately

- owned fallow citrus lands. In February 2014, the first of these pilot projects became operational on property owned by a private citrus company. Under the pilot program, water will be pumped onto 450 acres of private p roperty in Martin County, capturing an average of 6,780 acre

- feet of water a year that would otherwise flow from lake Okeechobee and surrounding basins into the St. Lucie River and Estuary. Two more pilot projects on other privately

- owned property are

unde r construction or being designed. These two projects wi ll provide more than 4,500

acre

- feet of additional water storage in the St. Lucie watershed.

 The Department asks that the federal agencies clarify whether dispersed water storage systems would constitu te "waters of the United States" if, during periods of water storage, the systems otherwise meet the definitions of tributaries or adjacent waters under the proposal.

 The Department asks that the federal agencies clarify whether the agencies intend agricul tural permitting exemptions under sections 402 and 404 of the Act to apply to any dispersed water storage systems that may meet the definition of "waters of the United States" under this proposal, but that are utilized during fallow agricultural periods. ( p. 7

- 8)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

449 Agency Response: The final rule contains an exclusion for “Artificial lakes and ponds created in dry land and used primarily for uses such as stock watering, irrigation, settling basins, rice growing, or cooling ponds.” In the exclusion for artificial lakes or pond s, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water

retention or recreation. The c hange to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not

become so because of another incidental beneficial use. Provided the features

discussed in this comment meet the con ditions states in the final rule, they would not be considered “waters of the United States.” However, if not constructed in dry land, these features may be jurisdictional under (a)(4), (a)(6), or (a)(8).

“Normal” farming, silviculture, and ranching is cl arified in the agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and ongoing activities to distinguish from activities needed to convert an area to farming, silviculture, or ranching and activities that convert a water to a no n

- water. Nothing in this rule changes the implementation of the exemptions under 404(f).

7.695 Reclaimed Water Storage

7.696 Similar to the artificial water bodies created for dispersed water management, the proposal does not appear to expressly address water bodies c reated for the purpose of reclaimed water storage. Reclaimed water plays an important role in water resource, wastewater, and ecosystem management in Florida. When reclaimed water is used, it eases the demand on traditional, often limited, sources of water . The storage and subsequent reuse of reclaimed water also reduces discharges to surface waters and recharges groundwater.

 The Department asks that the federal agencies clarify whether reclaimed water storage systems would constitute "waters of the United States" if the systems otherwise meet the definitions tributaries or adjacent waters under the proposal. (p. 8)

Agency Response: The final rule contains exclusions for stormwater and wastewater management features constructed in dry land. Provided the features

discussed in this comment meet the conditions states in the final rule, they would not be considered “waters of the United States.” However, if not constructed in dry land, these features may be jurisdictional under (a)(4), (a)(6), or (a)(8).

Tennessee Department of E nvironment and Conservation (Doc. #15135)

7.697 Storm water treatment systems are traditionally considered exempt as waste water treatment systems, assuming not created in a water of the U.S., if they are being actively maintained. Storm water systems, however, are evolving as EPA and the states encourage the use of constructed wetlands, green infrastructure, and other similar features. We request that the agencies make clear in this rulemaking that such systems will remain exempted under the waste water treatmen t exemption. (p. 28)

Agency Response: Please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

450 North Carolina Dep artment of Transportation (Doc. #15179 )

7.698 ...we especially call attention to AASHTO's [American Association of State Highway and Transportation Officials] comments on the proposed r ules' potential effects on stormwater management constructed to support transportation facilities. Clarification of the criteria to exclude the stormwater treatment systems associated with green infrastructure is necessary to negate any concerns over poten tially creating jurisdictional waters. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Arizona Game and Fish Department (Doc. #15197)

7.699 7. State fish and wildlife agencies have unique jurisdictional authority over their state

trust resources and maintain the ex pertise to determine actions necessary to protect those resources. The uncertainties of the proposed Rule may create excessive financial burdens on state public fiscal resources to accomplish fish and wildlife management objectives. The Department therefor e requests the development of a clearly

- expressed exemption for actions and activities in WUS conducted by State fish and wildlife agencies for the benefit of watershed habitats and fish and wildlife resources. Alternatively, a new permitting process could be developed similar to the ACOE's Section 404 Regional General Permits. At a minimum, the EPA must analyze and disclose the financial impacts to state fish and wildlife agencies. (p. 3)

Agency Response: The agencies have historically encouraged habitat

enhancement activi ties, and have been open to the development of streamlined permitting options, such as the current Nationwide Permit #27 for Aquatic Habitat Restoration, Establishment, and Enhancement Activities. Therefore, the agencies do not believe it is necessary to a dd a specific exclusion for enhancement activities conducted by State agencies.

While the rule imposes no direct costs as a definitional rule, the agencies prepared an economic analysis for informational purposes. The agencies conducted this

economic anal ysis to provide the public with information on the potential indirect costs and benefits associated with this definitional rule. The economic analysis was done for informational purposes only, and the final decisions on the scope of

“waters of the United S tates” in this rulemaking are not based on consideration of the information or analysis in the economic analysis. Please see the Economic Analysis for more details

.

California Department of Water Resources (Doc. #15245)

7.700 ...the policy for excluding some features, activities, and waters from CWA regulation is to recognize that there are certain facilities over which the USACE and EPA have generally not asserted jurisdiction as a policy matter and in order to provide greater regulatory clarity. (79 Fed. Reg . at p. 22189.) DWR requests that other facilities with functions similar to the features in the Proposed Rule be added to the definition of features. These proposed additional features include:

Flood By

- Pass System. As described above, the primary Califor nia flood management system depends in part on multiple by

- pass systems that divert high flood flows throughClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

451 wide channels protected by artificial levees and berms away from cities and important agriculture areas to mostly uninhabited upland areas. When th e flooding stops, the water drains from the by

- pass regions, which reverts back to uplands. The main activity on these uplands during the non

- rainy periods is irrigated agriculture. Similar to the concept of including artificially irrigated areas that woul d revert to uplands upon cessation of irrigation, DWR requests the USACE and EPA consider expanding the definition of features to include areas that are part of the flood control systems, including by

- pass areas, that would revert to uplands when the flood waters are no longer being diverted and water drains from the lands. (p. 5

- 6)

Agency Response: The final rule does contain an exclusion for artificial, constructed lakes and ponds created in dry land. See response at 7.3.2. See also response at 7.4.

7.701 b. Artificial Water Supply Delivery Facilities. As elaborated above, the SWP water supply system includes numerous artificial conveyance structures, such as concrete

- lined aqueducts, canals, pipes, tunnels, above

- ground storage tanks, forebays, afterbays, and pumping plants t hat are used to transport water around the state after it is diverted. The SWP uses these artificial systems to transport and deliver water, both surface waters that would be diverted from traditionally navigable waters and groundwater, to its customers

ar ound the state. These types of facilities that are used for water deliveries are different than some canals and aqueducts found on the East Coast that are used for transportation and recreation and should be treated differently for jurisdictional purposes.

The definition of features recognizes that certain artificial water facilities should be excluded from the definition of jurisdictional waters as a matter of policy, recognizing that such waters have been separated from jurisdictional waters by legal mean s and such activities do not affect the chemical, physical, or biological integrity of waters of the United States. DWR requests that this rulemaking consider expanding the definition of features to include other water delivery facilities that are equivale nt in function to those already listed as features in the Proposed Rule, especially artificial water conveyance systems like aqueducts, pipelines, and canals. Although DWR does not believe these artificial water facilities should be considered jurisdiction al under the Proposed Rule, adding them to the list of features would provide important regulatory clarity for DWR and other operators of water supply systems. (p. 6)

Agency Response: As noted in the preamble, the agencies have consistently regulated aqueducts and canals a s “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land.

Sealaska Corporation (Doc. #15356)

7.702 Water Supply Systems . It appears that the proposed rule would treat most water supply systems, ranging from major federal and State water delivery systems to smaller reservoirs and other water system components managed by local governments, as “tributaries.” This would unduly increase the regulatory burden on small villages in Southeast Alaska that are already struggling, and on temporary water systems for loggingClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

452 camps for an industry that is already near collapse. The ru le exempts wastewater treatment systems from jurisdiction, but does not include a similar exemption for water supply systems. Regulation of water system components under the CWA would impose a needless burden on water purveyors. The Agencies should categor ically exempt water supply systems (including treatment systems) from regulation under the proposed rule. (p. 21)

Agency Response: Although the agencies have modified the definition of “tributary” in the final rule, the preamble states that the agencies have consistently

r egulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of

feat ures when created in dry land.

West Virginia Department of Environmental Protection (Doc. #15415)

7.703 The waste treatment system exclusion only covers systems designed to meet the requirements of the CWA. The same rationale for excluding waste treatment system s required for the CWA applies to such systems and supporting drain control structures constructed to comply with laws other than the CWA. This exclusion should be clarified and broadened to cover drainage control ditches or conduits constructed to comply with other environmental laws, including state counterparts to federal environmental laws. For example, surface and underground coal mining are regulated indirectly by the federal Surface Mine Control and Reclamation Act of 1977 ("SMCRA"). Pennsylvania Federation of Sportsmen's Clubs, Inc. v. Hess , 297 F.3d 3 10 (3d Cir. 2002); Bragg v. West Virginia Coal Association , 248 F.3d 275 (4th Cir. 2001). State law counterparts to SMCRA that provide for regulation in accordance with SMCRA and consistent with

fed eral regulations promulgated pursuant to SMCRA, 30 C.F.R. 9 732.15(a), directly apply to the coal industry.' Pursuant to these state laws, mine operators are required to build diversion ditches for fresh water, drainage control ditches and structures to co ntrol and direct runoff that has been exposed to un

- weathered rock and coal in the mine area, as well as sediment ponds, water treatment ponds, fresh water impoundments, and waste storage impoundments. On an individual basis, the purpose of some of these f eatures cannot be deemed to be solely waste treatment. Some are merely conveyances, while others are for storage. Generally, however, they are constructed to comply with regulatory requirements under the state counterparts to SMCRA having to do with

ensuri ng water quality that go well beyond the requirements of the CWA. Some of these features are temporary and will be removed when no longer necessary. Some of them will be retained after mining is completed. In all cases, reclamation will be conducted

accord ing to a plan approved in the mine operator's permit. The reclamation usually results in some alteration of these features to make them compatible with the surrounding landscape and drainage patterns in the post

- mining scenario. Where a mine operator fails to perform its duties under these laws, state government must step in to perform the mine operator's duties. A bond is posted by the mine operator to assure compli anc e and to fund the state's effort in the event it is called upon to perform reclamation. E ach surface mining permit covers a defined permit area. The WVDEP urges the EPA to further exempt features that are built within this permit area to comply with the requirements of state counterparts to SMCRA.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

453 Other mines are regulated under the State's Qu arry Reclamation Act, W.Va. Code § 22

- 4

- 1, et seq. Similar to the regulatory regime under SMCRA, these mining operations are required to have drainage control systems within a defined permit area, the individual features of which may not all be deemed to be purely for compliance with the CWA. As with coal mines, some of these features will become permanent, some are temporary, and all are subject to maintenance requirements during mining and some form of reclamation following mining. The features of these on

- site drainage control structures should also be exempt. (p. 12

- 13)

Agency Response: As stated in the SMCRA statute, SMCRA “ shall not be deemed in any way to repeal or supersede any portion of the Federal Water Pollution

Control Act and no control or treatment under this subsection shall in any way be less than that required under the Federal Water Pollution Control Act. ” The agencies believe that the two statutes have complementary, but differing, mandates and therefore is not appropriate to add a specific exclusion for features authorized

under SMCRA.

With respect to stormwater control features, please see the summary response at

7.4.4.

Ohio Department of Natural Resources et al. (Doc. #15421)

7.704 Ohio EPA Comments:

Some confusion has been created by the proposed rule becau se, by rule, all tributaries (defined as having a bed, bank and ordinary high water mark) are defined as waters of the U.S. The agencies should explicitly clarify in the final rule that constructed storm water best management practices (BMPs) including, bu t not limited to, retention basins, detention basins, infiltration basins/trenches, constructed wetlands and bioretention permitted under Section 402 of the CWA that connect to a downstream jurisdictional receiving water through a constructed outlet having a bed, bank and ordinary high water mark are not considered waters of the U.S. (p. 24)

Agency Response: Please see summary response at 7.4.4.

San Gabriel Basin Water Quality Authority (Doc. #15642)

7.705 WQA respectfully requests that groundwater recharge basins be excluded fro m jurisdiction under the proposed rule . We note that the proposed rule definition of "waters of the United States" now includes, "... all waters, including wetlands, adjacent to traditional navigable water ..." Although EPA has also listed several exceptions

, we believe the definition should be modified to also allow an exception for groundwater recharge basins created specifically for the discharging, capturing and infiltrating of groundwater, storm water and non

- storm water runoff. Such an exception would a llow for the efficient discharge and reuse of water in infiltration basins without additional layers of onerous regulatory reviews

- a scenario, which WQA envisions, could apply to discharges throughout the San Gabriel Valley regardless of whether or not t he discharges are covered by an NPDES permit.

More than 30 groundwater treatment facilities are operating in the San Gabriel Basin today and many of them require the ability to discharge large volumes of water to floodClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

454 control channels over short periods o f time to facilitate plant start

- up (including complying with the State Water Resources Control Board's Division of Drinking Water permit requirements), operations and maintenance. Earlier this year the WQA, in furtherance of its mission, sponsored a basin wide Los Angeles Regional Water Quality Control Board discharge permit for the efficient discharge and reuse of water not otherwise available for direct potable use. This permit also allows for the future construction and use of groundwater recharge basins to allow direct recharge to the San Gabriel Valley groundwater basin. Additionally, these basins are envisioned to be multi

benefit by also serving as integrated stormwater capture basins. Much of the land available for these newly constructed recharge ba sins located adjacent to facilities and waterways considered waters of the U.S. Therefore, if the proposed rule were implemented as proposed these constructed basins could be subject to additional permitting that is time

- consuming, burdensome and costly wi th no additional benefit or improvement of water quality for San Gabriel Valley residents . (p. 2)

Agency Response: In the final rule, t he agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as g roundwater recharge basins and percolation ponds built for wastewater recycling.

Environmental Protection Division, Georgia Department of Natural Resources (Doc. #16348)

7.706 The presence of one or more man

- made or natural breaks does not affect the jurisdictio nal status of a tributary. Further clarity should be provided in this rule to prevent redundant regulation and the potential for conflict from existing facilities that are regulated under CWA Section 402 (i.e. Municipal Stormwater Systems, Natural

Wastewat er Treatment Facilities such as constructed wetlands, etc.). It is further suggested that clarity be provided in the proposed rule regarding exemptions for green infrastructure. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4.

Py ramid Lake Paiute Tribe (Doc. # 17472)

7.707 As the rule reads, § 328.3

- Definitions, describes water bodies which are subject to the exclusions of waters of the United States, which includes, but is not limited to: artificial reflecting pools, swimming pools, small ornamental waters, water

- filled depressions created incidental to construction activity, etc. However, the exclusions do not include

storm

- water Best Management Practices (BMPs). Language should be added to § 328.3

Definitions to include storm

- water BMPs and define them by using specific examples, such as: rain gardens, infiltration basins, storm

- water wetlands, and other storm

- water BMPs that improve water quality. (p. 1)

Agency Response: Please see summary response at 7.4.4.

Lee County, Florida (Doc. #1346 .1 )

7.708 As Lee County is a proponent of wate r reuse we require more time for a complete analysis of the potential impacts to our reuse efforts. We recognize that the proposed rule reiterates the exemption for wastewater treatment facilities under the CWA, however,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

455 water reuse infrastructure, at time s, will not fall into this category and thus could become jurisdictional. (p. 2)

Agency Response: The final rule specifically excludes constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and pe rcolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though the se features are often created in dry land, they are also often located in close proximity to tributaries or other larger bodies of water. The exclusion also covers water distributary structures that are built in dry land for water recycling.

Board of Count y Commissioners, Sweetwater County, Wyoming (Doc. #6863)

7.709 To prevent the proposed rule from adding another layer of permitting delays to companies that are already excessively burdened by time delays, Sweetwater County strongly encourages the EPA, in its proposed rule, to explicitly exempt local streets, gutters, and manmade ditches from the definition of the waters of the United States. (p. 2)

Agency Response: Please see summary response at 7.4.4.

City of Thornton, Colorado (Doc. #73 28. 1 )

7.710 Thornton operates a drinking wate r supply system that could be impacted by the proposed rule.

Thornton diverts water from Clear Creek and the South Platte River, both of which are

considered "waters of the United States". The South Platte River is an effluent dominated

stream in a heavil y urbanized ar ea, with discharges from centra lized wastewater treatment plants contributing significantly to the flow of the river. This treated effluent is typically high in nutrients and BOD. Thornton stores some of this water in reclaimed gravel pit res ervoirs that have been lined in accordance with Colorado state standards to prevent them from leaking. The water stored in the gravel pit reservoirs is used as a source for Thornton's drinking water.

As part of Thornton's pre

- treatment program for the effl uent dominated water, to control algae and taste and odor problems and to help meet SDWA standards, particularly for disinfection by

- products, Thornton adds algaecide, oxidizers and/or act ivated carbon to the water in the lined gravel pit reservoirs. This pre

- treatment process occurs in a closed

s ystem within the lined facility . This pre

- treatment process has never been regulated by the EPA or the Corps, and Thornton requests that the proposed rule provide that this pre

treatment process in its lined gravel pit reservoirs be exempted as described below.

Another reason this pre

- treatment process shoul d not be regulated is that afte r the water from the lined gravel pit reservoirs is used in Thornton's municipal water supply system, it is discharged in complia nce with a CDPS permit, under Colorado's programClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

456 administering the federal NPDES program, at t he Robert W. Hite Treatment Plant operated by the Metro Wastewater Reclamation District. (p. 2)

Agency Response: Many commenters asked for an exclusion for drinking water supply systems, similar to exclusions for wastewater treatment and stormwater control. Because water supply networks can be both complex in structure and extensive in size, involving the use of tributaries as well as a variety of other features, the agencies det ermined that a complete exclusion of such systems is not appropriate. However, not all portions of these systems would be regulated under the final rule. Some portions of these systems are tributaries, or even traditional navigable waters, and so would be regulated under this rule for the same reasons that all such waters are subject to regulation as “waters of the United States.” At the same time, there are some portions of these systems that would be excluded from regulation under the paragraph (b) exclu sions, including (b)(3) (ditches that do not flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, constructed lakes and ponds created in dry land).

7.711 Thornton requests an additional new exemption for municipal water supplie rs for lined gravel pits.

The proposed rule would maintain exemptions for certain facilities or activities.

Thornton's concern could be addressed with an add itional exemption under the "features" section of the proposed rule § 328.3(b)( 5 ) for lined gravel pit reservoirs. It appears that the basis for the proposed rule is the scientific recognition of "connectivity" and the nexus between various bodies of water. As described above, the connectivity is not present because of the liner in the gravel pit reserv oirs. There is no nexus or connection.

Accordingly, Thornton requests that a new exemption under § 328.3(b)(5 ) be added to the proposed rule . We propose the following language:

"(viii) lined water storage facilities, including lined gravel pit reservoirs ."

This narrow exemption is similar to the other "features" that a re proposed in rule § 328.3(b)(5 ). It is justified because the lined gravel pit reservoirs have not been previously regulated and the USEPA has indicated, according to AWWA, that drinking w ater suppliers' infrastructure is not intended to be regulated under the proposed rule. Moreover, it is justified by the lack of "connectivity" which is the science behind the proposed rule. (p. 3)

Agency Response: See prior response.

Transportation and Storm Water Department, City of San Diego, California (Doc. #7950.2)

7.712 Comment Number: 9

Section: 22206

- G

Topic: Adjacent Waters

Comment: New construction and flood control activities could result in the unintended

creation of a WOTUS. The installation of baffles and weirs to facilitate removal of pollutants such as sediment in storm water (as required by storm water permits) would

now requ ire complex 404 permitting procedures. Additional storm water permitting forClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

457 construction and development activities for all departments would be required and could delay infrastructure maintenance and municipal services from being constructed and will

cer tainly increase costs.

Recommendation: Allow an exemption for installation and maintenance of water quality improvement structures or streamlined permitting for activities that will contribute to increasing water quality. (p. 3 )

Agency Response: Please see summary response at 7.4.4.

Office of Environmental Programs, City of Phoenix, Arizona (Doc. #7986)

7.713 Green Infrastructure

Green infrastructure includes creative, less intensive methods of controlling and utilizing stormwater. For example, instead of directing stormwater im mediately into the underground stormwater pipe conveyance system, swales could be constructed and planted with vegetation to utilize stormwater before the excess makes its way to the conveyance system. Under the proposed definition, these swales would like ly meet the requirements to be considered WOTUS, which would add an unnecessary permitting requirement for efforts that are constructed specifically to benefit the environment. Therefore, we respectfully request the inclusion of "green infrastructure" in t he list of features identified as "not waters of the United States" in §328.3 (b). (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.714 Water Transfers

Water transfers are integral to Phoenix’s water supply and are handled in environmentally responsible ways. The Colorado River supplies a significant percentage of the City’s water supply and is delivered by the Central Arizona Project (CAP) through a series of dams, reservoirs, and canals. Although there is a rule in place exempting water transfers

from Clean Water Act National Pollution Discharge Elimination System (NPDES) permitting requirements, that rule is undergoing legal challenge.

It would be enormously costly and provide no additional benefit to the environment to require the CAP to treat its water at any p oint, since the water is already treated by City of Phoenix water treatment plants prior to delivery to its customers.

As any diminution of its water supplies could have a devastating effect on the City, we respectfully request that EPA specifically indica te that water transfers will not require Clean Water Act permits. (p. 1

- 2)

Agency Response: Please see summary response at 12.3.

Aurora Water (Doc. #8409)

7.715 2. The new and expanded definition of "tributary" in the proposed rule adds ambiguity in its application in the wester n U.S.

The existing regulations do not fully define "tributary"; in practice, "tributary" has usually been restricted to a water feature with an active channel designated by ordinary high

- water marks and connection to traditional navigable waters.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

458 Under the proposal, all tributary and adjacent waters would now be "jurisdictional by

rule". The definition of "tributary" and the scope of what is "adjacent" would both expand, including a new concept of "neighboring waters". Under the proposed rule, "neighbori ng" is defined for the first time to include waters located within the riparian area or floodplain of a WOTUS or waters with a confined surface or shallow subsurface hydrological connection. While typical shallow subsurface flows are not considered a

WOTUS under the proposed rule, those flows may define a connection, establishing jurisdiction to a "jurisdictional" water. The western U.S. faces additional critical issues due to the absolute lack of connection (as currently defined) of many of its ephemeral

w ater bodies and the seasonal fluctuations in the water resource itself.

Many water treatment features, such as Aquifer Recharge and Recovery (ARR) and Aquifer Storage and Recovery (ASR) sites, may be unintentionally and inappropriately considered jurisdict ional under the "adjacent" or "neighboring" definitions. As sources of

water in the West continue to become scarce due to over appropriation and effects of climate variability, many western water utilities are either currently using or are evaluating the o pportunities to utilize ARR and ASR for drought protection measures

and/or water treatment. Many of these features utilize large man

- made basins that allow the water to slowly infiltrate into the subsurface aquifer. Specifically, Aurora utilizes an

ARR sit e to provide direct natural treatment to its raw source water through a man

- made system of infiltration basins and medium amendment.

The proposed rule also asserts that all tributaries in a watershed will be considered in

combination to assess whether they have a significant nexus to a WOTUS. The significant nexus test allows for a watershed scale determination of jurisdiction. Many of the dry arroyos, washes, and ephemeral or intermittent water bodies so common in the arid West could become the subject of federal oversight upon adoption of the proposed

rule.

Additionally, the proposed rule states that determination of jurisdiction using the terms "riparian area," "flood plain," and "hydrologic connection" will be based on best professional judgment and expe rience applied to the definitions proposed in this rule. There is no limiting scope to the size of a riparian area or a definition of the types of animal, plant and aquatic life that may trigger this definition.

Lastly, the rule does not clearly define how water must be geographically proximate to the adjacent water, nor how waters outside the floodplain or riparian zone are jurisdictional if they are reasonably proximate. This l ack of clarity creates uncertainty

about whether these waters would be consider ed a WOTUS because it leaves it up to the local ACOE office to determine jurisdiction in these instances.

Recommendations: Man

- made water treatment facilities should be explicitly exempted in the rule regardless of whether they are utilized for drinking wa ter, sewer, or stormwater.

Dry arroyos, washes, ephemeral or intermittent water bodies should be exempted from

the rule. (p. 2)

Agency Response: The final rule has modified the proposed definition of “tributary.” In addition, the final rule specifically excludes constructed detentionClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

459 and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling.

With respect to stormwater control features, pl ease see the summary response at

7.4.4.

7.716 4. The current and prop osed rules under section 404(f)(1) (A) allow an exemption for "Normal farming, silviculture and ranching activities ... " and lists fifty

- six (56) specific conservation practices which are and would continue to be exempted, but does not address similar watershed best management practices by urban water providers.

Aurora Water adopts a best management practices approach in the protection of its watersheds, headwaters, stormwater retention areas a nd ditches. These maintenance activities can often be accomplished under an existing nationwide permit. Under the proposed rule, some of these conservation practices may require a full Section 404 permit, increasing costs and delaying or eliminating some m aintenance and operations activities. In addition, Aurora Water works closely with federal, state and local agencies to improve the conditions of our watersheds.

Recommendation: New exemptions for activities related to stream and habitat improvements shoul d be included in the rule, allowing a more immediate response to wildfires, floods and other natural disasters as an "urban corollary" to the similar agricultural best conservation practices exemptions. (p. 3)

Agency Response: Based on the existence of regulatory procedure s for emergency authorizations, as well other streamlined permitting options, such as Nationwide and Regional Permits, the agencies do not believe it is necessary to add a specific

exclusion for these activities.

Board of Supervisors, Imperial County, Cal ifornia (Doc. #10259)

7.717 Waste Treatment Systems: The proposed rule should expand exemption for waste treatment systems if they are designed to meet any water quality requirements, not ju st the requirements of the CWA. (p. 5)

Agency Response: Please see summary response at 7. 4.4. Also, see summary response 7.1 concerning the waste treatment system exclusion

.

Mecklenburg County Government, North Carolina (Doc. #10946)

7.718 BMPs should be categorically excluded from "waters of the United States." BMPs are often constructed at the pe rimeter of sites in low lying areas. Many of these BMPs are constructed wet ponds and wetlands. With these features possibly becoming "waters of the United States" it becomes much more difficult to do repair work to these BMPs. As development continues to increase, the size of these BMPs may need to increase to treat the additional impervious areas.

Capital Improvement Projects for flooding are typically located adjacent to "waters of the United States." If these improvement projects are damaged and need to be repaired or significantly altered in the future, this may become more difficult as the BMPs would be considered "waters of the United States." (p. 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

460 Agency Response: Please see summary response at 7.4.4. While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate.

City of Escondido, California (Doc. #11116)

7.719 It has also been suggested that a tributary could include a water conveyance system such

as the Es condido Canal which transports water from the San Luis Rey Watershed to the

Water Treatment Plant at Lake Dixon. If the water in the Escondido Canal is determined to be a Waters of the U.S., then all the requirements of the Clean Water Act would be trigger ed, including water quality standards and total maximum daily loads (TMDLs) could be applied to this man

- made infrastructure. These are not discretionary requirements. This definition would expand the authority (and obligations) not only of the Army Corps of Engineers, but the State and Regional Water Quality Control Board. Potable water supply and recycled/reclaimed water conveyance systems should be excluded from the definition. (p. 2)

Agency Response: Although the agencies have modified the definition of “tributary” in t he final rule, the preamble states that the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agen cies have not in practice asserted jurisdiction over these types of features when created in dry land.

City of Palo Alto, California (Doc. #12714)

7.720 Water Reuse

Palo Alto is an active participant in the Regional Water Quality Control Plant Water Reuse Progra m. Since 1980 this program has reused over 10 billion gallons of water for irrigation and cooling, reducing the need to import potable water and reducing discharges of wastewater into San Francisco Bay. Water reuse in California is an essential requirement to meet demand, particularly at a time of recurring droughts. Investing in the necessary infrastructure and facilities to increase water reuse is expensive, and while government must ensure public safety and environmental compliance, it should not

discour age the investment. Unfortunately, the proposed rule introduces impediments to water reuse and does not protect investments made in water reuse, even though federal agencies encourage such activity.

Recycled water is treated and distributed in ancillary in frastructure to a wastewater treatment system and can include channels to convey wastewater, settling or retention basins, and a separate pipe system to deliver the recycled water. Some of these facilities could fall under the definition of "tributary" of the proposed rule, could be located within a floodplain or riparian area, and would not necessarily be covered by the wastewater treatment exemption in the rule, which stipulates the exemption only for "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act." While water recycling provides further treatment of wastewater, the purpose for its treatment is not "designed to meet the requirements of the Clean Water Act." Further, the rule's exempt ion for settling basins does not afford sufficient protectionClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

461 for water reuse facilities because it does not cover detention basins, reservoirs, or associated infrastructure such as channels, ditches, or other conveyances.

At a minimum, we ask that the fin al rule include a clear exemption for all water reuse and water reclamation facilities. (p. 3

- 4)

Agency Response: The final rule specifically excludes constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater rechar ge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water pri or to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable s oils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger bodies of water. The exclusion also covers water distributary structures that are built in dry land for water recycling

.

Charlotte County, Florida (Doc. #13061)

7.721 The rule must explicitly exempt water quality treatment systems permitted via Florida Department of Environmental Protection/Southwest Florida Water Management District/South Florida Water Management District from the Clean Water Act Standards because these systems were created to capture pollutants and protect downstream waterways. These systems typically include stormwater treatment/attenuation facilities and associated conveyances including roadside ditches, vaul ts, bioswales, rain gardens, and other green infrastructure. We suggest you significantly modify the proposed rule to address these obvious issues; or simply exclude similar features from any future definition of WOTUS. (p. 2

- 3)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4.

Waters of the United States Coalition (Doc. #14589)

7.722 Application to terminal water supply reservoirs

– The Proposed Rule will potentially classify many water supply reservoirs as waters of the United States. Throughout the west, many reservoirs are constructed on canyons or gullies that at one time may have been bisected by an ephemeral stream. Many such reservoirs simply act as forebays to surface water treatment plants, storing imported water that is not native to the underlying stream. They are isolated and/or lack any significant nexus to waters of the United States

in the watershed where the reservoi r is located. Classifying these reservoirs as waters of the United States will interfere with water operations as permitting and other water quality requirements could severely limit the utility of the reservoirs.

To address these concerns the Public Infra structure Waters of the US Coalition request the following changes to 40 C.F.R § 122.2:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

462 Waste treatment, flood control and water supply systems , including but not limited to aqueducts, water supply canals not used for navigation , treatment ponds, or lagoon s, storage ponds, pipelines, open channels, agricultural drains, manmade treatment wetlands, swales, or other low impact design infrastructure designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of

water which were not created in waters of the United States (such as disposal area in wetlands[See Note 1 of this section.] Waters of th e United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act j urisdiction

remains with EPA. (p. 5)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include certain wastewater treatment and stormwater facilities that may address some of the features d iscussed in this comment, wh ere constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be co nsidered jurisdictional

. With respect to stormwater control features, please the summary response at 7.4.4

7.723 Recycled water

The Proposed Rule will hinder recycled water projects. Water supply agencies rely on percolation ponds like those described above to add recycled water to the potable and

non

- potable supply. If man

- made percolation ponds are classified as waters of the Uni ted States, then the percolation ponds will be required to attain designated Water Quality Standards. Though highly clean, recycled water can have TDS and nutrient levels that are higher than what regulatory agencies including EPA have determined is necess ary for waters of the United States to attain their designated Water Quality Standards. If percolation ponds are considered waters of the United States, discharges of recycled water into the percolation ponds could require an NPDES permit, and the discharg e itself could be prohibited because of high TDS and other constituent levels in the source water.

These restrictions will hinder the use of recycled water and put limits on the ability of water purveyors to develop new, responsible supplies. In Southern C alifornia, every gallon of recycled water that can be used is a gallon that does not have to be brought south through the Sacramento San Joaquin Delta or taken from the Colorado River. Likewise, in south Texas, every gallon of recycled water used allows mo re water to stay in the Rio Grande. There are very real ecological benefits to increasing the use of recycled water across the country, and the Proposed Rule could hinder those efforts. (p.

140 )

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycl ing structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas likeClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

463 California where water supplies can be limited and droughts can exacerbate supply

issues.

7.724 We additionally request that the Proposed Rule’s changes to 40 C.F.R § 122.2 and other

relevan t sections of the federal regulations be modified as follows:

(a) Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term ‘‘waters of the United States’’

means:

(1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; (3) T he territorial seas; (4) All impoundments of waters identified in paragraphs (a)(1) through (3) and (5)

of this section excluding man

- made water supply reservoirs that lack a significant

nexus to downstream waters ;
(b) The following are not ‘‘waters of th e United States’’ notwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of this section

– (1) Waste treatment systems, including treatment ponds, treatment wetlands, storage ponds or lagoons, and percolation ponds designed to meet th e requirements of the Clean Water Act , or designed to reuse treated effluent

. (2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes

of the Clean Water Act the final authority regarding Clean Water Act jurisdiction

remains with EPA. (3) Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow. (4) Ditches that do not contribute flow, either directly or through a nother water, to a water identified in paragraphs (a)(1) through (4) of this section. (5) The following features: (i) Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease; (ii) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, water supply storage, groundwater recharge, or rice growing; (iii) Artificial reflecting pools or swimming pools created by excavating and/or diking dry land; (iv) Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons; (v) Water

- filled depressions created incidental to construction activity; (vi) Groundwater, including groundwater drained conveyed to waters of

the United States through open channels and subsurface drainage systems;

and (vii) Gullies and rills and non

- wetland swales.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

464 (viii) Any wastewater recycling facil ities and all appurtenances thereto, including but not limited to conveyances, pumping facilities, discharge pipes, holding ponds, spreading grounds, and percolation ponds. (6) Manmade flood control and water supply systems, including but not limited to

aq ueducts, water supply canals not used for navigation, treatment ponds, storage ponds, lagoons, pipelines, open channels, agricultural drains, manmade treatment wetlands, swales, or other low impact development infrastructure. (c) The term “upland” shall me an all lands that are not classified as waters of the United

States. (p. 5

- 7)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include certain wastewater treatment and stormwater facilities that may address some of t he features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be co nsidered jurisdictional . See the preamble for the agencies’ rationale for changes to the final

rule.

With respect to stormwater control features, please the summary response at 7.4.4

Valley Center Municipal District, California (Doc. #14752)

7.725 Water infrastructure, such as recycled water facilities, groundwater recharge basins,

storm wate r retention basins, and constructed wetlands adjacent to "waters of the United States," should be excluded from jurisdiction under the proposed rule. (p. 2)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include ce rtain wastewater treatment and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be co nsi dered jurisdictional

. With respect to stormwater control features, please the summary response at 7.4.4 Groundwater recharge basins are covered under the exclusion at (b)(7) for “wastewater recycling structures created in dry land: detention and retention basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling” or under the stormwater control feature exclusion at (b)(6), depend ing on the source of water. In effect, both have the same result, i.e., the infiltration basin is not a jurisdictional water as long as it was built in dry land. Please note that the final rule does not change the applicability of the Underground Inject ion Control program for Class V injection wells or subsurface fluid distribution systems under the Safe Drinking Water Act. See 40 CFR Part 144.

Washington County Commission, Utah (Doc. #14991)

7.726 A. Proposed amendment to definition of tributaries . Washingto n County proposes that dry washes located throughout the southwestern United States be excluded

- by name

- s

from jurisdiction if waters only flow in the dry wash intermittently or ephemerally andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

465 tile primary flow from the dry wash or arroyo is drainage imme diately following

ra infall. 408 This proposal would (1 ) provide a bright

- line rule to determine jurisdiction, (2) prevent the new rule from significantly expanding the Agencies' jurisdiction, (3) prevent the Agencies from imposing significant costs on Washing ton County, and (4) follow congressional intent in ensuring the unprotected lands in Washington County remain open for travel and multiple use.

In the proposed rule, the Agencies specifically request comments regarding recommendations which will provide gr eater clarity to the proposed definition of jurisdictional tributaries as compared to non

- jurisdictional gullies. As stated above, the county has expertise in maintaining roads in an area with frequent and localized flash flooding. Consequently, the county respectfully provides additional information to the Agencies with the intent of showing the need to not include dry washes or arroyos as jurisdictional by rule.

... The county respectfully requests that the Agencies' modify the proposed rule to not

establis h tributaries and other waters as jurisdictional by rule. Additionally, the county has significant experience with dry washes or arroyos as commonly found in the

southwestern United States

. The county strongly recommends that these dry washes not

be consid ered jurisdictional by rule. Jurisdiction of dry washes is not permitted under the law. Additionally, approving the proposed rule without specifically excluding dry washes from the Agencies' jurisdiction will likely impose significant costs on the county a nd restrict access to public lands in the county. More importantly, the proposed rule would likely put the health, safety, and welfare of travelers at risk because it would hinder the county's regular repair of roads damaged by flash flooding. (p. 3, 4)

Agency Response: The agencies modified the definition of “tributary” in the final

rule to “ a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (a)(4) of this section), to a water identified in paragraphs (a)(1) through (3) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” The physical indicators of bed and banks and ordinary high water mark

demonstrate that there is suffic ient volume, frequency and flow in such tributaries to a traditional navigable water, interstate water, or the territorial seas to establish a significant nexus. “Tributaries” as defined are jurisdictional by rule.

The rule identifies all erosional featur es, including gullies and rills, as non

jurisdictional features. While the proposed rule specifically identified gullies and rills, the agencies intended that all erosional features would be excluded. The final

rule makes this clear. Erosional features are not jurisdictional under the terms of paragraph (a) and the definitions in paragraph (c), especially the definition of tributary, and would be non

- jurisdictional in any case.

City of Glendale, Arizona (Doc. #15054)

7.727 Water Transmission Canals

408 See Rapanos v U.S. , 547 U.S. 715, 739 (2006)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

466 The City of Glendale receives most of its water supplies via the Central Arizona Project's or the Salt River Project's canals. Water quality standards for Phoenix area canals have been established in Arizona Administrative Code, Title 18 Environmental Quality.

These c anals often discharge to a groundwater recharge basin or return flow, either directly or through another water, to a jurisdictional water. Under the proposed rule, man

made conveyances meet the definition of "tributary" if they have a bed, a bank, and an

o rdinary high water mark and contribute flow either directly or indirectly to an (a)(1) through (a)(4) water. These water transmission canals may meet the definition of "tributary" under the proposed rule.

Maintenance activities to operate the distribution canals, such as mechanical and chemical controls for aquatic plants and animals and removal of silt and debris from the channels, will become subject to state and federal permit requirements. Financial resources of the Central Arizona Project and Salt

- Riv er Project would be spent on permits without additional benefit to the environment. Water transmission canals should be specifically excluded from the definition of "waters of the United States." (p. 4)

Agency Response: Although the agencies have modified the definition of “tributary” in the final rule, the preamble states that the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land. T he final rule also specifically excludes constructed detention and retention basins created in dry land used for wastewater recycling a s well as groundwater recharge basins and percolation ponds built for wastewater recycling.

New York City Law Department (Doc. #15065)

7.728 Green Infrastructure: It is the City's understanding that bioswales, rain gardens, and similar green infrastructure would not be considered jurisdictional, and thus subject to regulation under the Clean Water Act, under the Proposed Rule. Several City agencies, including DEP, the Department of Transportation, and the Department of Parks and Recreation, among others, install and manage green infrastructure to manage stormwater in the City. The City appreciates that EPA and the Corps view the Proposed Rule as not defining green infrastructure as jurisdictional. To ensure clarity on this issue, the City suggests that EPA and the Corps add a subsection expressly exempting green infrastructure from jurisdiction. (p. 3)

Agency Response: Please see summary response at 7.4.4.

7.729 Water Transfers: EPA and the Corps should take advantage of this rulemaking as an opportunity to clarify the applicability of t he Clean Water Act to water transfers. This is particularly important in light of the recent decision in Catskill Mountains Chapter of Trout Unlimited, Inc., et al. v. U.S. Environmental Protection Agency, et al. , in which the

court struck down EPA's 'Wate r Transfers Rule, 40 CFR § 1 22.3(i). 8 F. Supp. 3d 500 (S.D.N. Y. March 28, 2014). In that case, the court explicitly questioned the status of water transfers in connection with the definition of "waters of the United States," The City believes that this ru lemaking is an appropriate context in which to address theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

467 applicability of the Clean Water Act to water transfers. Accordingly, the City proposes the following additions, which are underlined, to the definitions in 40 C.F.R. Section

122.2:

"Discharge of a pollutant" means

(a) Any addition of any "pollutant" or combination of pollutants to "waters of the United States" from any "point source," or

(b) Any addition of any pollutant or combination of pollutants to the waters of the "contiguous zone" or the oce an from any point source other than a vessel or other floating craft which is being used as a means of transportation.

(c) For purposes of water transfers and impoundments. the source water and the receiving water shall be considered unitary. For navigable waters that are unitary, an addition of pollutants to navigable waters occurs only when pollutants first enter the navigable waters from a point source, not when pollutants are impounded or moved between navigable waters.”

This definition includes additio ns of pollutants into waters of the United States from: surface runoff which is collected or channelized by man; discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any "indirect discharger,"

“Water transfer” means an activity that conveys or connects waters of the United States.” (p. 3

- 4)

Agency Response: Please see summary response at 12.3.

Flood Control and Water Conservation, Alameda County, California (Doc. #15074)

7.730 Green Infrastructure projects, such as bio

- swales and artificial wetlands, are constructed

to restore natura l hydrological features and promote multiple environmental benefits. These systems are covered under the NPDES permit and should be excluded from Waters of the US. (p. 2)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree t hat a specific exclusion for stormwater control features built in dryland is appropriate. Please see summary response at 7.4.4.

National Association of Counties (Doc. #15081)

7.731 Ensuring that Local Governments Are Able to Quickly Recover from Disasters

In our nation’s history, our citizens have experienced both manmade and natural disasters. Counties are the initial line of defense, the first responders in protection of its residents and businesses. Since local governments are responsible for much of what

c onstitutes a community

— roads and bridges, water and sewer systems, courts and jails, healthcare, parks, and more

— it is important that local governments quickly recover afterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

468 disasters. This includes removing wreckage and trash from ditches and other

infras tructure that are considered jurisdictional. 409

Counties in the Gulf Coast states and the mid

- west have reported challenges in receiving emergency waivers for debris in ditches designated as “waters of the U.S.” after natural and manmade disasters. This, in turn, damages habitat and endangers public health. NACo would urge the EPA and the Corps to revisit that policy, especially if more waters are classified as “waters of the U.S.” (p. 18)

Agency Response: The need for emergency action for a specific time and place is

not related to the issue of whether a water is a defined “water of the United States” under the Clean Water Act. Rather, the agencies believe that such situations are better addressed through implementation actions, such as streamlined permitting procedures, that can provide the tailored oversight necessary to protect vital water resources while adequately responding to unusual emergency circumstances

Painesville Township, Ohio (Doc. #15183)

7.732 "Waste Treatment Systems and Other Exclusions"

The proposed rule exc ludes "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" among other features listed in the section. While such systems have traditionally been excluded from CWA jurisdiction, we believ e that other constructed water management and treatment infrastructure with similar attributes to these waste treatment systems should be exempted. (p. 2)

Agency Response: Waste treatment systems have been excluded from this definition since 1979, and they remain substanti vely and operationally unchanged. Only ministerial changes to delete an outdated cross reference are made to the exclusion for waste treatment systems. Continuing current practice, any waste treatment system built in a “water of the United States” would ne ed a section 404 permit to be constructed and a section 402 permit for discharges from the waste treatment system into “waters of United States. Because the agencies are not making any substantive changes to the waste treatment system and these comments ar e outside the scope of the proposed rule, the final rule does not reflect changes suggested in public comments. See summary response at 7.1

Los Angeles Department of Water and Power (Doc. #15238)

7.733 Impacts to Water and Power Suppliers, Such as LADWP

The prop osed rule has the potential to impact LADWP's water rights, sources of water, transmission projects , water transfers , spill containment areas, evaporation cooling ponds, forebays used for water pass through for generating hydro

- electric power, intake

cha nnels used for once

- through cooling, and operation and maintenance activities by an

409 Disaster Mitigation: Reducing Costs & Saving Lives: Hearing before the Subcomm. on Econ. Dev., Pub. Bldgs. & Emergency Mgmt., H. Comm. on Transp. & Infrastructure, 113th Cong. (2014) (statement of Linda Langston, President, Nat’l Ass’n of Counties).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

469 increased need for more permits and permit requirements. Projects will be subject to individual permits versus the Corps Nationwide Permits and expansion of National

Pollut ant Discharge Elimination System (NPDES) permits that may have total maximum daily loads (TMDLs) associated as effluent limitations. The Agencies will have jurisdiction and may conflict with agreements for flow requirements in order to maintain

beneficial uses of streams, creeks, and/or rivers that have already been established. The proposed rule has the potential to interfere with already established water rights, and threatens the ability to maintain water and electricity demands as well as system

reliabi lity.

Science shows that including waters previously not classified as WOUS would not improve the quality of these waters; updating the definition of WOUS as proposed would only serve to place more waters under more regulations due to increased oversight. For example, drinking water meets potable water standards, which is its primary beneficial use, there is no benefit to being under the jurisdiction of the CWA; the environmental benefits do not outweigh the increased regulatory burden.

In addition, generat ing stations that are powered by coal or natural gas may have impoundments that hold cooling water from a WOUS prior to use in some form of cooling process. All of these impoundments are man

- made. In some cases, sea water is

drawn into an intake channel th at was built solely for the operations of the plant. The water has been taken into the control and onto private property out of the public domain. Thus, the WOUS classification should be waived in this example. For inland generating

stations that draw fres hwater as cooling water, a man

- made impoundment is also needed. As with the intake channel example, this type of impoundment does not harm any aquatic life or beneficial uses of a downstream water body and should not be classified as a WOUS. Generating sta tions also have lined ponds within the property, which are used either to accumulate wastewater or evaporate excess water as a part of treatment processes. These ponds should also not be classified as WOUS. If necessary, they will be permitted for discharg e, which would protect any nearby waters.

Some hydroelectric power plants use a pump

- back process so they can reuse water that was used to generate power. The water is held in a forebay until electricity demand is low, and then the water is pumped up to a reservoir at a higher elevation to be reused when the demand is high. The forebay is an enclosed man

- made impoundment that

should not be classified as a WOUS.

Aqueducts should not be considered WOUS. Aqueducts have a primary purpose to provide reliable wat er to the citizens that have water rights. Aqueducts often require maintenance in order to remove sediment or repair the sidewalls of the open channels,

and also to maintain enclosed sect ions made of metal or concrete. In addition manmade

ditches should not be WOUS because of the frequent maintenance that often requires flow adjustments for aqueduct system reliability that do not harm beneficial uses but are necessary for maintaining the operation of the aqueduct.

Spreading grounds used to recharge ground water supply should not be considered WOUS. If the proposed regulation includes the significant nexus test, then an entire groundwater basin might be considered to be the connectivity between the spreading grounds and a river that is perhaps miles away fro m the spreading grounds.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

470 The definition of WOUS should not inadvertently interfere with implementing existing water rights by hindering maintenance activities on facilities used to deliver water in a

reliable and efficient manner. Maintenance activities on conveyances such as ditches and facilities such as flow regulating structures need to be done very quickly

- much faster than the turnaround time for NPDES and/or Corps permits

- in order to ensure uninterrupted supplies. Some activities are highly depend ent on weather as well as flow requirements downstream in the water supply system. Thus, water supply conveyances, ditches , and facilities must be left out of WOUS classification. (p. 6

- 7)

Agency Response: In the final rule, the agencies have expanded and clarified the

fe atures not considered “waters of the United States” for the purposes of the Clean Water Act. In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are

often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not

treated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to ma ny requests to clarify that cooling ponds created in dry land are

excluded.

Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice

that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

A lthough the agencies have modified the definition of “tributary” in the final rule, the preamble states that the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing

water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land.

7.734 LADWP recommends that the Proposed Rule be modified to:

...

 Exclude ephemeral streams from the definition of WOUS and allow the States to regulate them;

 Clarify in the Rule that groundwater basins are not to be considered a tributary;

...

 Exclude aqueducts and water supply features from the definition of WOUS;Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

471  Exclude storm water ponds, detention basins, spreading grounds, puddles, reservoirs, or other standing waters from the definition of WOUS by virtue of being adjacent or with a significant nexus;

 Exclude impoundments for holding cooling water or power plant pump back

water from the d efinition of WOUS;

 Exclude lined ponds within a facility from the definition of WOUS; and

... (p. 8, 9)

Agency Response: The agencies have modified the definition of “tributary” to require the presence of a bed and bank and other indicator of ordinary high water

mark. A bed and banks and other indicators of ordinary high water mark are physical indicators of water flow and are only created by sufficient and regular intervals of flow. These physical indicators can be created by perennial, intermittent, and ephemeral flows. Th e rule includes ephemeral streams that meet the definition of tributary as “waters of the United States” because the agencies determined that such streams provide important functions for downstream waters,

and in combination with other covered tributaries in a watershed significantly affect the chemical, physical, and biological integrity of traditional navigable waters, interstate waters, and the territorial seas.

The final rule has expanded the features not considered “waters of the United

States” to incl ude certain wastewater treatment and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be co nsidered jurisdictional

. With respect to stormwater control features, please see the summary response at

7.4.4.

Water and Sewer Department, City of Greeley, Colorado (Doc. #15258)

7.735 B. Exclusion for Water Treatment Systems

...Greeley provides drinking wate r to its citizens through two treatment plants. The City must therefore comply with the stringent requirements of the Colorado Primary Drinking Water Regulations. 410

Ponds and related treatment system components are typically located on plant property having no public access. It would be contrary to Safe Drinking Water Act requirements to allow contaminants to enter these waters prior to treatment and distribution. It would also be impractical to require drinking water these waters prior to treatment and dist ribution. It would also be impractical to require drinking water providers to obtain Corps authorization before performing necessary work on treatment system components where such work may involve a discharge of fill material.

410 5 CCR 1002

- 11. Colorado is authorized to implement its o wn drinking water program that complies with the Safe Drinking Water Act.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

472 The definition of Waters the United States has long excluded "waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act." The Agencies should add a similar exclusion in 40 CFR §122.2(b) for "Drinking water treatment systems, inclu ding treatment ponds or lagoons , designed to meet the requirements of the Safe Drinking Water Act." (p. 6

- 7)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have

his torically not treated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive,

and tre atment ponds or lagoons constructed in dry land may also be excluded.

Many commenters asked for an exclusion for drinking water supply systems, similar

to exclusions for wastewater treatment and stormwater control. Because water supply networks can be b oth complex in structure and extensive in size, involving the use of tributaries as well as a variety of other features, the agencies determined that a complete exclusion of such systems is not appropriate. However, not all portions of these systems would be regulated under the final rule. Some portions of these systems are tributaries, or even traditional navigable waters, and so would be regulated under this rule for the same reasons that all such waters are subject to regulation as “waters of the United States.” At the same time, there are some portions of these systems that would be excluded from regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not flow into a navigable water, interstate water or territorial sea) or (4)(B )(artificial, constructed lakes and ponds created in dry land.

District of Columbia Water and Sewer Authority (Doc. #15379)

~

7.736 3. Combined Sewer System

As is the case with many combined sewer systems constructed over a century ago in cities undergoing urbani zation, parts of DC Water's combined sewer system incorporate small streams and stream segments that were tributaries to larger streams and rivers leading to the Anacostia, Potomac, or Rock Creek. DC Water is currently spending

billions of dollars on the D istrict's combined sewer system to control discharges from the system, and we are concerned that the Rule could be interpreted to extend CWA jurisdiction over flows in the combined sewer system itself where the system incorporates streams and stream segmen ts. Therefore, the term "tributary" needs to be amended in the Rule to make it clear that piped or buried sections incorporated into a combined system, o

not meet the definition of "waters of the United States."

The Rule is unclear regarding the treatment of combined sewer systems and DC Water cannot support a final rule that does not specifically exempt combined systems and infrastructure that are part of a combined system as non

- jurisdictional. Stream segmentsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

473 that flow through pipes that are part of a co mbined system should be specifically exempted and should not be considered "waters of the U.S." (p. 4)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4

. Also, please see Summary response at 12.3 concerning the NPDES program.

7.737 4. Green Infrastructure

DC Water's ongoing and proposed green infrastructure ("GI") projects incorporate a variety of measures, including green roofs (gardens on rooftops), rain gardens, rain barrels, and pervious pavements, removing impervious surfaces, and using other natural means to capture and infiltrate rain water. Man

- made wetlands may be developed along with canals, ditches, and retention systems associated with GI. DC Water has made a significant investment in its com mitment to GI that will capture and convey water to the GI before it can enter the combined system. In this way, combined sewer overflows will

be reduced and controlled.

Stormwater and green infrastructure are not explicitly exempt under the proposed rule.

This infrastructure is vital to DC Waters commitment to clean water and without clarification, DC Water will be open to adverse agency determinations and the possibility of citizen suits under the CWA. DC Water seeks a rule that states affirmatively that GI infrastructure is not classified as a "water of the U.S." and that GI projects and

infrastructure are not meant to be included in the proposed rule.

...
DC Water recommends that the definition of waters of the U.S. be narrowed and/or the exemptions expand ed as set out below:

1. Exempt by definition of tributary or by definition of waste treatment system all sanitary and combined system facilities, the impoundments, ditches, and infrastructure related to them, from the definition "waters of the U.S," This w ould include sections of streams that flow through pipes that are part of a sanitary sewer system or combined

systems;

... Exempt by definition GI installations the impoundments, ditches, and infrastructure related to them, from the definition "waters of the U.S." This would also include sections of streams that flow through pipes tha t are part of a GI system. (p. 4 , 5, 6 )

. Agency Response: Please see response to previous comment.

County of Los Angeles and Los Angeles County Flood Control District, California (Doc. #15620)

7.738 3 . Green Infrastructure Projects

EPA’s System of Registries describes “Green Infrastructure” as “an adaptable term used to include an array of product, technologies, and practices that use natural systems

– or engineered systems that mimic natural processes

– to enhance overall environmental quality and provide utility services.”2 Green Infrastructure projects provide multipleClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

474 benefits such as groundwater replenishment, water quality improvement, and enhancement of wildlife habitats and recreational opportun ities. In July 2014, EPA launched the Green Infrastructure Collaborative, which in part aims to advance green stormwater management techniques.3 The President’s Office of Management and Budget also has acknowledged that Green Infrastructure, including wetl ands, can be a cost

effective way to manage stormwater and meet Clean Water goals.4 In a press release and fact sheet dated October 8, 2014, the President’s Council on Environmental Quality identified creek and wetland restoration and wetland protection as examples of Green Infrastructure projects.3 The County and LACFCD share EPA’s commitment to Green Infrastructure as a way to attain more sustainable and livable communities. In recent years, the LACFCD has begun to incorporate Green Infrastructure element s, including constructed wetlands and engineered soft bottom, low

- flow channels, as part of its flood control infrastructure. While some of these Green Infrastructure projects are intended for compliance with requirements in municipal stormwater permits re quired under Section 402(p) of the CWA and are part of a larger stormwater quality improvement strategy, others are simply reflective of a “greener” approach to flood protection aimed at more livable communities. Following are two examples of Green Infrast ructure projects recently constructed by the LACFCD. We are concerned that under the Proposed Rule, projects like these could be deemed WOTUS, which could discourage future Green Infrastructure projects.

The first example is the Dominguez Gap Wetlands, a c onstructed wetland located within the City of Long Beach and operated by the LACFCD. The wetlands project maintains the integrity of flood protection along Los Angeles River (a jurisdictional WOTUS), while introducing new water quality elements, groundwate r recharge, restoration of native habitat, pedestrian and equestrian trails, environmental education, and river bike trail enhancements. The wetlands naturally treat from 2

- 3 cubic feet per second (1.3 to 3.2 million gallons a day) of stormwater and urban runoff

— enough water to fill five Olympic

- size swimming pools, which results in a significant reduction in the amount of fecal coliform, nutrients, heavy metals, organic carbons, and oil and greases in the runoff.

The second example is the Tujunga Wash Gr eenway, a meandering stream constructed by the LACFCD as part of the Tujunga Wash Ecosystem Restoration Project, located in the City of Los Angeles. The Greenway is a man

- made stream adjacent to the concrete

lined Tujunga Wash flood control channel, which is a jurisdictional WOTUS. The Greenway has brought plant and animal habitat, water quality enhancement, groundwater replenishment, and passive recreation to a one mile reach of the Tujunga Wash. Both sides of the Wash now feature vibrant native vegetation and pathways for walking and biking. During an average rain year, as much as 325,000 gallons a day will flow through the Wash’s new naturalized streambed, resulting in improved water quality for the region and enough groundwater recharge to provide 760 fa milies of four with drinking water for an entire year.

The County and the LACFCD are concerned that projects such as these could be broadly interpreted to be WOTUS under the Proposed Rule, as they are located adjacent to existing WOTUS and do not clearly q ualify for any of the current exclusions. As with the infiltration basins, designating waterway

- based Green Infrastructure projects such as Dominguez Gap Wetlands and Tujunga Wash Greenway as a WOTUS would discourageClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

475 the future development of these types o f projects. Requiring CWA Section 404 and 401 permits or applying water quality standards to these types of projects would raise their cost beyond feasible funding sources. The County and the LACFCD believe that a specific exclusion for Green Infrastructur e projects in the Proposed Rule is needed to avoid ambiguity and to promote Green Infrastructure projects that help improve water quality or create water features where none existed before. Such exclusion is especially crucial now because many Los Angeles area municipalities are currently in the planning stages of various Green Infrastructure projects, reflecting a larger trend towards using green stormwater management techniques. (p. 8

- 9)

Agency Response: Please see summary response at 7.4.4.

City of Riverside, California (Doc. #15824)

7.739 The City of Riverside has several facilities such as holding ponds, constructed wetlands, and water and wastewater infrastructure located adjacent to "water of the United States." The City of Riverside also has several projects on the horizon to capture and recharge storm water. These are projects that will be constructed in the foreseeable future. In addition, we plan to expand our recycled water system which may include the recharge of our groundwater basins with recycled water.

The City of Riverside 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." (p. 4)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4.

The final rule specifically excludes constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds buil t for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, g roundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are ofte n created in dry land, they are also often located in close proximity to tributaries or other larger bodies of water. The exclusion also covers water distributary structures that are built in dry land for water recycling.

Colorado Springs Utilities (Doc. # 16351.1)

7.740 No exemption is offered for water treatment systems or water reuse facilities which oftentimes employ pits, ponds, lagoons and recharge basins. These features may be found jurisdictional under the rule (unlike wastewater treatment systems). (p. 2)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include certain wastewater treatment and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However , when constructed in, orClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

476 impounding, waters of the United States, these features may still be co nsidered jurisdictional

.

7.741 There is no exemption for emergency work, such as post

- fire drainage remediation activities of the type Colorado Springs and its neigh bors had to construct after recent devastating forest fires. On a similar note, there is no exemption for stormwater control facilities necessary to meet MS4 obligations. (p. 2)

Agency Response: With respect to stormwater control features, please see the

summary response a t 7.4.4. See also summary response at 7.4

.

South Kansas Groundwater Management District No. 3 (Doc. #16465)

7.742 The Federal Agencies' proposal could also place a significant amount of previously non

jurisdictional water infrastructure under the CWA. Municipal water providers depend on much of this infrastructure to meet water needs in a responsible and environmentally conscious manner. The proposed rule expands the CWA jurisdiction from "adjacent wetlands" to "adjacent waters". This unnecessary expansion will capture a large amount of infrastructure not previously jurisdictional. Infrastructure that could be implemented includes a large number of water recycling and reuse facilities, groundwater recharge facilities, retention basins, and constructed wetlands. T hese facilities, often by necessity, are constructed in areas that the proposed rule would make jurisdictional for the first time. To address the issues identified in this letter the Federal Agencies should:

...

 Clarify that jurisdictional "impoundments" do not include manmade, off

- stream facilities that lawfully appropriate and remove water from the natural environment, such as a drinking water system, off

- stream storage pond, intake canal for any use;

...

 Clarify in the text of any final rule that nothing in the proposal changes the regulatory status of water transfers;

... (p. 2, 3)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Ple ase see summary response at 7.4.4. Regarding water transfers, please see response at 12.3.

City of Beaverton , Oregon (Doc. #16466)

7.743 We recognize that EPA and the Corps may claim these outcomes are unanticipated. However, there is so much gray area in the p roposed rule that the rise of third

- party citizen suits are likely to define all these described waters as WOTUS. The agency's so

called intent will not matter, because where there is gray, there will be a lawyer to file a lawsuit. Ultimately, the aggressi ve reach of this rule and its ambiguous provisions and terminology introduces uncertainty, requires more agency analysis and intervention, and will create increased litigation.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

477 With that in mind, the rule must include the following provisions that are prio rity concerns for local governments:

...

 Green infrastructure developed to improve water quality or achieve multiple public benefits shall be encouraged and given priority consideration that does not impose additional financial and regulatory burdens of perm ittees and shall not be considered waters of the U.S.;

 Water delivery, reuse, and reclamation systems and facilities shall not be considered waters of the U.S.;

... (p. 2

- 3)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4. 4.

The final rule specifically excludes constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the gr owing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are bec oming more prevalent tools for water reuse and recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in cl ose proximity to tributaries or other larger bodies of water. The exclusion also covers water distributary structures that are built in dry land for water recycling.

Brady Township Supervisors, Clearfield County, Pennsylvania (Doc. #16480)

7.744 In section (b), the proposal excludes 'waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" among other features listed in the section. While such systems have traditionally been excluded from CWA jurisdi ction, we believe that due to the expansive nature of the proposal, the agencies should also exclude other constructed water management and treatment infrastructure with similar attributes to these waste treatment systems. These facilities

could include wa ter reuse and recycling ponds, treatment lagoons, and other

- appurtenances; artificially constructed wetlands designed to treat agricultural or stormwater runoff ( e.g. green infrastructure ) used and managed to improve water quality; arid artificially cons tructed groundwater recharge basins designed to percolate surface water into groundwater basins. All of these features would revert to dry land if the application of water were to cease and should be included in the list of features identified in the propo sed rule as excluded from the definition of "waters of the U.S." (p. 5)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4

. The final rule specifically excludes constructed detention and retention basins created in dry la nd used for wastewater recycling as well as groundwater rechargeClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

478 basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water. The exclusion also covers water distribu tary structures that are built in dry land for water recycling.

Palm Beach County, Florida (Doc. #16647)

7.745 The proposed rule, in section (b), excludes "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Cl ean Water Act" among other features listed in the section. Due to the expansive nature of the proposed, the agencies should also exclude other constructed water management and treatment infrastructure with similar attributes to traditionally waste treatmen t systems, as well as constructed or managed water reuse and recycling systems that may not have been designed to meet the requirements of the Clean Water Act, but that serve a vital purpose for water recycling and provide marked water supply benefits. The se facilities could include water reuse and recycling ponds, conveyance systems, treatment lagoons, and other appurtenances; artificially constructed wetlands designed to treat agricultural or stormwater runoff (e.g. green infrastructure) used and managed to improve water quality; and artificially constructed groundwater recharge basins designed to percolate surface water into groundwater basins. Simply put, as the agencies update and "clarify" the definition of what constitutes a "water of the US," they sh ould also take the opportunity to update the language of the water treatment exclusion to recognize the advancements that have been made in wastewater design and treatment, as well as the innovative measures being undertaken by wastewater utilities to embr ace a "one water" framework and incorporate water reuse into local and regional goals. (p. 10)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4

. The final rule specifically excludes constructed detention and retention b asins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detenti on and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling. These features are us ed to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water. The exclusion als o covers water distributary structures that are built in dry land for water recycling.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

479 7.746 The Palm Beach County Water Utilities Department (PBCWUD) is the third largest water and wastewater utility in Florida and operates one of the largest and most mature

re claimed water networks in the State. PBCWUD treats wastewater at its Southern Region Water Reclamation Facility and supplies reuse to a number of different golf courses and residential communities for irrigation use. The facility is permitted under

Florida DEP NPDES Permit FL0041424. Under the conditions of the permit, PBCWUD discharges reclaimed water into existing stormwater treatment systems that are owned, operated and maintained by the various golf courses and homeowner's associations and have previous ly been permitted under Florida's en vironmental permitting programs . The storage of reclaimed water in the stormwater systems are subject to DEP Program

Guidance Memo DOM 96

- 01 and the associated TBEL that have previously been approved by EPA.

Under the co nditions of its permit, PBCWUD is limited to discharging reclaimed water into the systems up to an agreed upon control elevation. Due to Florida's wet weather and groundwater/surface water interface, water within the ponds and lakes that make up the

stormw ater systems is a blend of groundwater, stormwater and reclaimed water. In wet weather periods, there may be intermittent discharges of this blended water from the systems into "waters of the State." PBCWUD is required to monitor and report these

intermitt ent discharges to DEP as part of its permit requirements. The privately owned systems are not considered to be "waters of the state" and are only included in the definition of "waters" in state statutes for the purposes of discharge from the system onto

pr operty or into other “waters.” 411

The lack of clarity in the proposed rule creates broad interpretive possibilities and uncertainties regarding water reuse and recycling infrastructure. Were the proposed rule to result in the stormwater management systems being designated jurisdictional "waters of the US/' PBCWUD would be required to meet water quality standards prior to the discharge of reclaimed water into systems under the existing approved permitting regime. This requirement would result in skyrocketing costs to implement a vital water reuse program that has been promoted by both the Florida DEP and USEPA as an effective way to address water supply concerns and could result in the abandonment of the program as not cost effective. Palm Beach County believ es that water reuse and recycling infrastructure should be expressly included in the waste treatment exemption, along with previously permitted stormwater management systems that are utilized for reclaimed water distribution. (p. 12

- 13)

Agency Response: With respect to sto rmwater control features, please see the summary response at 7.4.4

7.747 To avoid regulatory uncertainty, legal deficiencies and the practical consequences that will result from finalization of the proposed rule, Palm Beach County proposes the following amendmen ts to the rule language:

...

411 See Section 403.301, Florida Statutes, and Guidance Memo DOM

- 96

- 01 (April 26, 1996) at p. 3 (describing golf course lakes and other lakes of ponds as "not waters of the state" and "part of the stormwater management system").Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

480 5) Clarify the waste treatment exemption to further clarify that innovative features other than treatment ponds or lagoons clearly fit within the exemption, including features that are designed to facilitate the delivery or dispo sal or reclaimed water that may not have been explicitly designed to meet the requirements of the Clean Water Act. In the case of Palm Beach County, these systems are included in the NPDES permit for the facilities, however, there are other situations wher e this is not the case and facility owners may see increased liability without an explicit change in the exemption.

6) Explicitly exempt green infrastructure from jurisdiction under the rule. (p. 13, 14)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4

City of Portland, Bureau of Environmental Services (Doc. #16662)

7.748 2. Please clarify that the wastewater treatment system exclusion includes recycled water and innovative treatment technologies. Some innovative treatment tec hnologies, such as wetland systems, do not fall within the traditional boundaries of a wastewater treatment plant. Please clarify that these types of treatment technologies are included in the exclusion for treatment systems" designed to meet the requireme nts of the Clean Water Act" even if they are located in areas that would otherwise make them jurisdictional. This requested change is consistent with longstanding Corps of Engineers practice that excludes constructed treatment wetlands from jurisdiction. ( p. 2)

Agency Response: The final rule specifically excludes constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the g rowing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are be coming more prevalent tools for water reuse and recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in c lose proximity to tributaries or other larger bodies of water. The exclusion also covers water distributary structures that are built in dry land for water recycling.

Office of the Mayor and City Council, City of Palo Alto, California (Doc. #16799)

7.749 Water R euse

Palo Alto is an active participant in the Regional Water Quality Control Plant Water Reuse Program. Since 1980 this program has reused over 10 billion gallons of water for irrigation and cooling, reducing the need to import potable water and reducing discharges of wastewater into San Francisco Bay. Water reuse in California is an essential requirement to meet demand, particularly at a time of recurring droughts. Investing in the necessary infrastructure and facilities to increase water reuse is expensi ve, and while government must ensure public safety and environmental compliance, it should not discourage the investment. Unfortunately, the proposed rule introduces impediments toClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

481 water reuse and does not protect investments made in water reuse, even thou gh federal agencies encourage such activity.

Recycled water is treated and distributed in ancillary infrastructure to a wastewater treatment system and can include channels to convey wastewater, settling or retention basins, and a separate pipe system to d eliver the recycled water. Some of these facilities could fall under the definition of "tributary" of the proposed rule, could be located within a floodplain or riparian area, and would not necessarily be covered by the wastewater treatment exemption in th e rule, which stipulates the exemption only for "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act." While water recycling provides further treatment of wastewater, the purpose for its t reatment is not "designed to meet the requirements of the Clean Water Act." Further, the rule's exemption for settling basins does not afford sufficient protection for water reuse facilities because it does not cover detention basins, reservoirs, or

associ ated infrastructure such as channels, ditches, or other conveyances.

At a minimum, we ask that the final rule include a clear exemption for all water reuse and water reclamation facilities. (p. 3

- 4)

Agency Response: The final rule specifically excludes constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling

an d reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycli ng. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger bodies of water. The exclusion also covers water distributary structures that are built in dry land for water recycling.

7.750 Water Supply

The City of Palo Alto purchases its water supply from the San Francisco Regional Water Supply System, a system of reservoirs and aq ueducts that delivers water from the Sierra Mountains to San Francisco and surrounding communities. The quality of the water from the SF Regional Water Supply System is such that it requires minimal to no pre

treatment. The system of reservoirs and many of the associated rivers and streams are already considered "Waters of the United States" under the Clean Water Act. We are unaware of any consultation that has taken place with state and regional entities that own and manage these water supply facilities wi th respect to any changes that may occur as a result of this proposed rule. We urge the agencies to carefully consider the impact of this rule on water supply systems and make the appropriate changes in the final rule to ensure that the public can continue to rely upon these sources for dependable and affordable water supply.

... Potential for LitigationClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

482 The City of Palo Alto prides itself on environmental stewardship and exceeds state and federal mandates for the utility services we provide our residents. We consider ourselves a partner with the federal and state governments in achieving the objectives of the Clean Water Act. However, the proposed rule fails to provide the necessary clarity that gave impetus to this rule. We support a rulemaking process that interprets court decisions and ensures future progress in meeting the requirements of the Act. Unfortunately, the aggressive reach of this rule and its ambiguous provisions and terminology introduces uncertainty, requires more agency analysis and intervent ion, and creates increased potential for litigation. In order to avoid bureaucratic delays and litigation, we provide the following examples of ambiguity that require clarification:

... The wastewater treatment exemption has a history of legal challenge. Its application to water reuse facilities and storm water features must be clearly defined. (p. 4, 5)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ curr ent practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like

California where water s upplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation ’s water under CWA.

With respect to stormwater control features, please see the summary response at

7.4.4

Board of Supervisors, Amador County, California (Doc. #174 5 0)

7.751 Changes to the terms "navigable water" or "waters of the United States" will likely alte r the way many water bodies arc regulated and trigger new unfunded mandates on local governments. Additionally, the expanded definition will subject counties to additional enforcement actions, including civil and criminal penalties, and place local governm ents at great risk of third

- party litigation. Some examples include:

...

 Water supply systems, including local and private systems would likely qualify as waters of the U.S. as they convey flow to downstream waters.

 Water reuse facilities are separate from f resh water supply systems and never designed with the objective to meet the parameters of the CWA. The application of water reuse facilities to the proposed definition of Waters of the U.S. is unclear. Reclaimed water is often used for landscape irrigation but in some cases becomes part of the water supply system. It appears the intent was not to include such facilities and if so, should be explicitly exempted.

... (p. 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

483 Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling

structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water re use and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately pro tecting the chemical, physical, and biological integrity of the nation’s water under CWA.

Board of Supervisors, Lassen County, California (Doc. #17461)

7.752 ...even though your agencies have maintained that there is no intent to impact water reuse facilities, th e rule does not clearly address reuse facilities associated with wastewater treatment systems. Reuse facilities were constructed to augment water supply for irrigation and sometimes drinking water, and were not designed with the objective to meet the param eters of the CWA. The rule needs to clearly state your agencies' intent for water reuse facilities. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agenci es’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like

California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of th e nation’s water under CWA.

Board of County Commissioners, Pitkin County, Colorado (Doc. #18921)

7.753 The continued exclusion of wastewater treatment systems is wholly appropriate. It is likewise appropriate that water supply or municipal systems are not excluded. Many domestic water supply systems and infrastructure systems are simply too large and potentially involve multiple river drainages to be safely excluded as a matter of rule. (p.

2 )

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water

reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

484 California State Association of Counties (Doc. #9692)

7.754 Water Quality Treatment Features : Any constructed feature built for the purpose of

water quality treatment or runoff control as required by any agency should be exempt from regulation under the CWA. It is important that counties are able to construct and

maintain or cause to be constructed and maintained these features in a manner that is

cons istent with the overall goal and public good of stormwater management without subjecting themselves and property owners to federal regulation that can delay or

interfere with the features public safety or water supply protection functions. Hindrances

and d elays regarding this function, and discouragement to build treatment features, that will result from federal permit processes and compensato ry mitigation requirements will

, ironically, conflict with the goals of the CWA.

As examples:

 Permanent settling bas ins that are constructed on a site to decant sediment

- laden runoff from the site itself or properties above it prior to running off the property or

into a storm drain.

 Green Infrastructure projects, such as bioswales and artificial wetlands, which are

inte nded to impose or restore natural hydrological features and promote multiple benefits, have been embraced by many counties and municipalities. The Los Angeles County Flood Control District, for example, has constructed an artificial wetland next

to a concr ete flood control channel and an artificial "natural stream" adjoining an existing concrete channel. Additionally, in many areas, such a Los Angeles County, counties and municipalities are combining their efforts in designing facilities to treat

and infilt rate stormwater and urban runoff in facilities that provide other community benefits. Such facilities are artificially created and will be subject to sediment accumulation that will need to be removed; vegetation taking root in the sediment

will also need to be removed and replaced

. These actions are needed to maintain the facilities' water quality function. To encourage the development of such projects, which create water features where none existed before, Green Infrastructure projects should not be desig nated as WOUS.

 Bioswales arc constructed to serve a filtering function. Such facilities are artificially created and will be subject to sediment accumulation that will need to be removed, along with vegetation taking root in the sediment, in order to maint ain their water quality function. (p. 7

- 8)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4

7.755 Artificial Groundwater Recharge Basins : Under the current proposal, off

- channel groundwater recharge basins that are located ad jacent to a WOUS may be considered j urisdictional via the agencies "adjacent waters" language. In keeping with the spirit of the agencies stated intent not to regulate groundwater, language should be added that exempts these types of basins.

For example, s tarting almost 100 years ago, counties in southern California have constructed artificial basins for the purpose of replenishing local area aquifers. Today, the counties in southern California are home to over 20 million people, and the population isClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

485 expec ted to increase. Groundwater serves a significant portion of the water supply for the inhabitants of these counties. In many communities, groundwater actually makes up the majority of their water supply. Counties in southern California are under pressure f rom the federal and State governments to lessen their dependence on water imported from the Sacramento/San Joaquin Delta and the Colorado River for the sake of environmental concerns at these source areas. The State of California declared a drought emergen cy in early 2014 that is still in effect; there are projections that drought conditions may continue for a very long period of time, even decades. It is therefore vital that groundwater recharge in these counties is not only maintained but enhanced.

An exe mption for these groundwater recharge basin s is consistent with exemptions the agencies have already given for artificial stock ponds and waters "created for purely aesthetic reasons." The recharge basins were artificially created. Although the basins may be located adjacent to a river or channel that is designated a WOUS, the basins have no significant hydrologic connection to a WOUS; the waters entering the basins go down into groundwater aquifers, which are not WOUS.

CSAC strongly believes subjecting ar tificial groundwater recharge basins to federal permits will result in reducing groundwater recharge at a time when it is vital to increase recharge. Permit processes will result in delays in maintenance necessary to maintain the basins' operability and wa ter storage and percolation capacity. The costs associated with groundwater recharge will significantly increase due to: increased staff time for permit acquisition; increased monitoring and reporting; the imposition of compensatory mitigation; and increas ed amount of work to remove accumulations in th e basins that

increased while waiting for the permits to be processed. Similar impacts can be expected for any project, including "drought buster" projects being sought by the State of California, to enhance o perations, storage or percolation at existing groundwater recharge basins or create new basins. In addition to adversely impacting the water supply of millions of people and conflicting with the State's goal to alleviate the impact of prolonged droughts, t he imposition of federal permits will, ironically, result in increased demand for imported water that will conflict with federal goals to reduce dependence on imported water. (p. 8

- 9)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling

structu res created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importa nce of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

486 Association of California Water Agencies (Doc. #12978)

7.756 California’s Water Conveyance and Delivery Systems should be Excluded from the Proposed Definition of “Waters of the United States”

The proposed rule would define “waters of the United States” to include “tributaries.” (79 Fed. Reg. No. 76, 22198 (April 21, 2014)). It would define “tributaries” as “water physically characterized by the presence of a bed and banks and ordinary high wate r mark. . . , which contributes flow, either directly or through another water” to waters of the United States (Id. at 22201). Although the proposed rule includes narrow exceptions for some types of man

‐ made, non

‐ stream conveyance facilities, the proposed rule states specifically that, “A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are one or more man

‐ made breaks (such as bridges, culverts, pipes, or dams or one or mor e natural breaks . . . . A tributary, including wetlands, can be a natural, man

‐ altered, or man

‐ made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in paragraphs (b)(3) or (4) (Id. at 22199, 22201

‐ 22202). This definit ion is so

broad that numerous man

‐ made, non

- stream conveyances would constitute tributaries and become subject to unnecessary permitting. ACWA requests that water conveyance systems be excluded from the definition of “waters of th e U.S

. ” in the proposed rule. Additionally, the proposed rule should explicitly exempt Federal Energy Regulatory Commission relicenses. (p. 3

- 4)

Agency Response: Although the agencies have modified the definition of “tributary” in the final rule, the preamble states that t he agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to

another.

7.757 ACWA does not believe it is EPA’s intent to regu late water re

‐ use 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 ”

. ACWA 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”. (p. 13)

Agency Response: The final rule has expanded the features not consid ered

“waters of the United States” to include certain wastewater treatment and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be co nsidered jurisdictional

.

7.758 While the proposed rule includes an exemption for artificial lakes and ponds used exclusively for settling basins, this language does not cover water reuse facilities. Reuse

facilities c an function or take on the characteristics of a wetland and can receive and discharge water into surface ditches that are not exempt. In addition, the proposed rule’s wastewater treatment exemption would not extend to water reuse facilities because such

fa cilities are not expressly “designed to meet the requirements of the Clean Water Act,” aClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

487 condition stipulated in the exemption, nor do the facilities treat wastewater. ACWA requests the construction, operation and maintenance of water recycling facilities, including associated storage ponds and percolation basins, be excluded from the proposed

definition of “waters of the United States” . (p. 15)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. Thi s new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particu larly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwa ter recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of

th e nation’s water under CWA.

7.759 3. The proposed rule increases the regulatory burden to construct wetlands for water

treatment increased.

Constructed wetlands are designed to treat urban runoff and remove pollutants before they enter a traditional navigable wa ter. These projects are often integrated into water agencies’ existing Clean Water Act compliance permits. The constructed wetland ponds are currently non

‐ jurisdictional, but are often located in floodplains and adjacent to

“water of the United States.” Un der the proposed rule, the ponds themselves would become jurisdictional. ACWA requests the proposed rule exclude man

‐ made treatment
wetlands. (p. 17

- 18)

Agency Response: Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act are listed as one of the specific features not considered “waters of the United States”, even where they would otherwise meet the terms of the rule. See summary responses at 7.1 and

12.3.

California Association of Sanitation Agencies (Doc. #12832)

7.760 The Waste Treatment Exemption Should Specifically Include Water Recycling Facilities and Effluent Storage Ponds

In order to address the historic drought conditions currently plaguing the western states, water and wastewater agencies must rely on a full suite of flexible options to provide potable and recycled water supplies for a variety of ongoing uses. Thus, CASA opposes any direct or indirect regulatory impacts on water recycling, water storage, and other mechanisms that play a part in recycled water infrastructure and processes as a result of the proposed rule.

As noted above, we appreciate the explicit acknowledgement and codification of the waste treatment exemption in the proposed rule. However, we believe it is important that the proposed ru le expressly states that the waste treatment exemption extends to recycledClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

488 water facilities. California water recycling projects often depend upon artificially created wetlands and storage ponds to treat millions of gallons of water a day. If these feature s are considered waters of the U.S. and are excluded from the waste treatment exemption, they could theoretically no longer be used as an integral component of the waste treatment systems, forcing the closure of important recycled water projects critical t o California’s water supply. Moreover, a lack of clarity on this issue may stall or halt the development of recycled water projects at a time when recycling is needed the most to address climate resiliency priorities.

Because recycled water demand is varia ble with time of day and season, recycled water agencies maintain reservoirs or storage basins/ponds to store recycled water during periods of low usage in anticipation of peak demands. These features are an essential component of the recycled water proces s and integral to an agency’s ability to continue reliably producing and supplying recycled water in many instances. The proposed rule should affirm that such reservoirs along with influent and treated effluent storage ponds are within the scope of the was te treatment exemption, consistent with the regulatory definition of “complete waste treatment system” found in existing federal regulations. 412
As the proposed rule and existing practice acknowledge, waste treatment systems designed to meet the requirements of the Clean Water Act are not waters of the U.S., and treatment systems should include any facilities, including storage ponds and basins,

r elated not only to traditional treatment facilities and processes, but also to the production of recycled water.

In the alternative, recycled water facilities and features (including storage ponds, basins, artificially created wetlands, recycled water rese rvoirs and other features associated with water recycling) should be expressly exempted as part of the specifically identified features that are not considered waters of the U.S. within the proposed rule. In this case, recycled water facilities would be tr eated similar to artificial lakes, ponds, swimming pools, ornamental waters, and groundwater, which are specifically identified and expressly exempted. In either case, whether recycled water facilities are considered part of the waste treatment exemption o r have their own specifically identified exemption, it is essential that the proposed rule not interfere with recycled water production and treatment by making those features jurisdictional.

The failure to include an explicit statement in the final rule wo uld leave open the question

of whether these features are considered “waters of the U.S.” Such a situation could lead to regulatory disincentives to produce recycled water in California and other western states, compounding a water scarcity situation that is already dire. Pending and adopted federal and state legislation to address the impacts of our historic drought contain a number of approaches to encourage recycled water projects. Transforming components of the recycled water process (including integral systems such as storage ponds) into jurisdictional waters would completely undercut efforts to address the drought and have

412 See 40 C.F.R. §35.2005(b)(12), defining “complete waste treatment system” as “all the treatment works necessary to meet the requirements of title III of the [CWA], involving . . . the ultimate disposal, includ ing recycling or reuse, of the treated wastewater and residues which result from the treatment process.” (Emphasis added); see also 40 C.F.R. §35.2005(b)(49) [definition of “treatment works” includes “storage of treated wastewater in land

treatment systems before land application” among other things].Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

489 resoundingly negative water supply ramifications across the state. We concur with the comments of Representative Grace Napolitano ( D

- CA) delivered to the House Committee on Transportation and Infrastructure Committee at the hearing held on June 11, 2014, as she questioned why in light of the severe drought in California, USEPA would not expressly include recycled water within the scop e of the waste treatment exception. Given the drought and dire need to develop recycled water facilities in the arid west, clarification that excludes recycled water facilities from additional federal regulation is absolutely vital. (p. 2

- 3)

Agency Response: Paragraph (b)( 7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when c onstructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed d etention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conse rvation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

7.761 In addition, many CASA member agencies utilize spreading grounds or basins in order to facilitate groundwater replenishment; a vi tal part of water management throughout California. Others utilize artificially created effluent storage ponds as part of their treatment process. Many agencies maintain reservoirs or storage basins/ponds to store recycled water. These artificially created features and spreading grounds have not previously been defined or regulated as “waters of the United States,” and should remain

separate. For this reason, the proposed rule should expressly include..., spreading grounds/basins, ...within the scope of the Was te Treatment Exception,... (p. 3)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other bene ficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another

incidental beneficial use. The list of uses has always been illustrative rather than

exhaustive.

7.762 If these “adjacent” wastewater and recycled water facilities, including spreading grounds, are defined to be within the jurisdiction of the CWA, it would adversely impac t CASA’s member agencies’ ability to augment groundwater supplies and to effectively provide wastewater treatment services. The plethora of additional and unnecessary requirements, regulations, and permitting associated with making these areas into jurisdi ctional waters, including but not limited to the procurement of an NPDES permit, assigning designated uses, exposure to penalties and potential third party liability for effluent violations, and impairment of the ability to operate and maintain these areas , would erect new mandates with no benefit to the surrounding ecosystems and waterbodies. Such a result representsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

490 an extreme disincentive to sustainable water supply development and a significant impairment of wastewater agencies’ ability to protect publi c health and safety through

innovative and effective wastewater treatment.

Within the proposed rule, there are two specific exemptions that could potentially address this issue. Pursuant to section 328.3(b)(5)(i) and 122.2(b)(5)(i)2, a spreading ground

cou ld fall under the definition of “[a]rtificially irrigated areas that would revert to upland should application of irrigation water to that area cease” (79 FR 22263 and 22268) Spreading grounds utilized by wastewater treatment facilities are generally artif icially created and might not otherwise exist aside from the application of wastewater effluent to the area. However, without being explicitly stated, it is not clear enough that this definition would apply to upland wastewater spreading grounds. Similarly , pursuant to section 328.3(b)(5)(ii) and 122.2(b(5)(ii), wastewater and recycled water ponds and spreading grounds could fall under an expanded definition of “[a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively fo r such purposes as stock water, irrigation, settling basins, or rice growing.” (79 FR 22263 and 22268) The word “such” seems to indicate that these are merely examples, not an exhaustive list, and thus spreading grounds utilized in conjunction with and/or as part of the overall wastewater treatment process could fall under this exclusion. However, without specific references within these provisions to treatment ponds and spreading grounds, CASA and its members are very concerned that these facilities could become jurisdictional and create significant problems for agencies attempting to protect public health and the environment. This, we would request the explicit inclusion of the terms such as “spreading grounds” and “wastewater and recycled water storage,” within this section. (p.

4

- 5)

Agency Response: See the two previous responses.

Colorado Stormwater Council (Doc. #12981)

7.763 Furthermore, the existing regulations include exclusions for waste treatment facilities that are constructed to meet CWA requirements and are constructe d in uplands. Currently, this exclusion is inconsistently implemented or misinterpreted by USACE and EPA staff at the national offices and regional regulatory field offices level. Clearly, additional language is necessary to restore the intent of this excl usion.

The CSC requests that language be included in the Proposed Rule to state that treatment of stormwater runoff from rural and urban settings conforms to the exclusion and that the exclusion applies to all necessary and constructed components of the st ormwater treatment system. (p. 4)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. See summary response at 7.4.4. The agencies’ long standing practice is to view stormwater water control measures that are not built in “waters

of the United States” as non

- jurisdictional. Conversely, the agencies view some waters, such as channelized or piped streams, as jurisdictional currently even wher e used as part of a stormwater management system. Nothing in the proposed rule was intended to change that practice.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

491 Many commenters, particularly municipalities and other public entities that operate storm sewer systems and stormwater management programs , expressed concern

that various stormwater control measures

— such as stormwater treatment systems, rain gardens, low impact development/green infrastructure, and flood control
systems

— could be considered “waters of the United States” under the proposed

rul e, either as part of a tributary system, an adjacent water, or as a result of a case

specific significant nexus analysis.

This exclusion should clarify the appropriate limits of jurisdiction relating to these systems. A key element of the exclusion is whe ther the feature or control system was built in dry land and whether it conveys, treats, or stores stormwater. Certain features, such as curbs and gutters, may be features of stormwater collection systems, but have never been considered “waters of the Unit ed States.”

7.764 7. Constructed Wetlands . There is language in the Proposed Rule that would appear to make a large number of constructed stormwater ponds and constructed wetlands fall under the "tributary" definition. "In addition, wetlands, lakes, and ponds ar e tributaries (even if they lack a bed and banks or ordinary high water mark) if they contribute flow, either directly or through another water to a water identified in paragraphs (a)(1) through (3) of this section. A water that otherwise qualifies as a tr ibutary under this definition does not lose its status as a tributary if, for any length, there are one or more

man

- made breaks (such as bridges. culverts, pipes, or dams), or one or more natural breaks (such as wetlands at the head of or along the run of a stream , debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A tributary, including wetlands, can be a natural, man

- altered, or man

- made wat er and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in paragraph (b)(3) or (4) of this section." (Proposed Rule at 40 CFR 230.3(u)(5)) It seems inappropriate and undesirable to have a large number of constructed stormwater ponds and constructed wetlands fall under the "tributary" definition and be considered WOTUS.

The CSC requests that the Proposed Rule clarify the rule language and/or provide a categorical exclusion for most types of constructed sto rmwater ponds and constructed wetlands. (p. 5)

Agency Response: The agencies have modified the definition of tributary in the

final rule. With respect to stormwater control features, please see the summary response at 7.4.4

Association of Clean Water Administrators (Doc. # 13069)

7.765 ACWA agrees that the specific exclusions listed in the Proposed Rule will provide increased clarity for regulators and the regulated community. This, in turn, may help streamline permitting by reducing the number of individual jurisdictional determi nations that will have to be made. There are some exclusions, however, that need further clarification...further clarity is needed on whether, when, or what parts of stormwater collection and treatment systems fall within the exclusion of “waste treatment sy stems”, and therefore, a definition of these systems, or better criteria through which these systems will be identified, is warranted. (p. 3)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

492 Agency Response: Please see summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #13613)

7.766 The (b)(1) Waste Treatment Systems exemption does not clearly address stormwater treatment systems such as bioswales and constructed wetlands treatment systems. NAFSMA urges the federal agencies to clarify that such water quality treatment systems

constru cted to meet the requirements of the CWA are exempt. In addition, off

‐ channel groundwater recharge basins, constructed adjac ent to WOTUS should also be exempt. (p. 2)

Agency Response: P lease see the summary response at 7.4.4

. Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisd ictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclud e constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and
encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

Western Coalition of Arid States (Doc. #14407)

7.767 2. Exclude all stormwater retention and groundwater recharge basins from the proposed definition of waters of the U.S. Although, artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as settling are currently excluded from the proposed definition, it is unclear from the preamble whether the agencies intend to exclude basins that are designed to discharge to the subsurface. Also, stormwater retention basins may be excluded as “waste treatment systems” since they are used to prevent or reduce sediment discharges from st ormwater systems to waters of the U.S. (p. 2)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4 Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclu sion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in

ar eas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharg e basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

493 7.768 4. Exclude all isolated impoundments and upland tributaries connected to them from the proposed definition of waters of the U.S. When all upland flow is terminated in a flood

control structure and there is no discernible surface connection to an (a)(1) through (a)(3) water, CWA jurisdiction is not warranted, (p. 3)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. The ag encies’ longstanding practice is to view stormwater

water control measures that are not built in “waters of the United States” as non

jurisdictional. Conversely, the agencies view some waters, such as channelized or piped streams, as jurisdictional current ly even where used as part of a stormwater management system. Nothing in the proposed rule was intended to change that practice A key element of the exclusion is whether the feature or control system was built in dry land and whether it conveys, treats, or stores stormwater. See also summary responses 8.1.2 and 8.3 for discussion of tributaries and breaks in flow.

7.769 Groundwater recharge basins should be exempt from jurisdiction since the recharge/storage activity and water quality requirements of the water (if recycled water) are regulated by State laws and protected by CWA Sect. 101(b). Also, the basins are specifically designed and operated to maximize recharge to the subsurface and, therefore, minimize discharge to the (a)(1)

- (a)(4) waters. (p. 9)

Agency Response: Paragr aph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictiona l when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude const ructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse a nd conservation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

Florida Rural Water Association (Doc. #14897)

7.770 Unless significantly revised, the proposed waters of the United States rul e will significantly increase cost of reusing reclaimed water in Florida. Another exemption should be developed for reuse and use of reclaimed waters. EPA should categorically exempt all components of a functioning reuse system from the rule as they addres s and provide significant benefits in areas such as alternative water supplies and aquifer recharge. Reuse in Florida occurs statewide and takes many forms. Public access reuse systems irrigate 343,782 residences, 536 golf courses, 948 parks, and 358 schoo ls. Also, electric utilities and domestic wastewater treatment utilities in Pensacola, Miami

- Dade County, Polk County, and elsewhere have partnered (or are partnering) to deliver reclaimed water to electric power plants for cooling water and other industri al purposes. Meanwhile, other utilities use rapid infiltration basins, percolation ponds, and other reuse facilities to recharge the aquifer, offset the impacts of groundwater withdrawals, andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

494 increase groundwater supplies for public use. The sum effect is that reclaimed water is viewed a positive environmental action, as a commodity in Florida and a critical piece of Florida’s future water supply plans, not as a mere waste product of the domestic
wastewater treatment process...

... A primary goal of the CWA is to abate surface water discharges, as outlined in 33 U.S.C. § 1251(a)(1). The reuse of reclaimed water is the realization of this goal. Accordingly, it seems that EPA would not want to adopt a rule that would impede reuse infrastructure in any way. Florid a reuse utilities hold state

- issued permits that govern their reuse systems, and applicable State rules prohibit reclaimed water irrigation practices or discharges to groundwater that cause or contribute to surface water impairments (p. 2

- 3)

Agency Response: Paragraph (b)( 7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when c onstructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed d etention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conse rvation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

The final rule has expanded the features not considered “waters of the United

States” to include certain wastewater treatment and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional

.

7.771 Any fina l rule should retain the current exclusion (33 CFR 328.3(a) and 40 CFR 122.2) for “waste treatment systems” and clarify that that the exclusion includes similar practices implemented by drinking water treatment systems. (p. 4)

Agency Response: The existing exclusion for wa ste treatment systems moves to paragraph (b)(1) with no substantive changes. One ministerial change is the deletion

of a cross

- reference in the current language to an EPA regulation that no longer exists. Because the agencies are not addressing the substan ce of the exclusion, the agencies do not make conforming changes to ensure that each of the existing definitions of the “waters of the United States” for the various CWA programs have the exact same language with respect to the waste treatment system exclu sion, with the exception of deleting the cross

- reference. See Summary response at 7.1.

Western Urban Water Coalition (Doc. #15178)

7.772 The statement that “[t]he agencies propose . . . no change to the regulatory status of water transfers” appears multiple time s in the Preamble. 79 Fed. Reg. at 22189; see also id. at 22193, 22199 and 22217. EPA’s Water Transfers Rule excludes any “activity thatClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

495 conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, mun icipal, or commercial use” from the National Pollutant Discharge Elimination System (“NPDES”) created by CWA. 40 C.F.R. § 122.3(i) (“Water transfer means an activity that conveys or connects waters of the United States without subjecting the transferred wa ter to intervening industrial, municipal, or commercial use . . .”). The Water Transfers Rule does not define “waters of the United States,” although EPA relied on one of the definitions the agencies propose to change in the Proposed Rule. See 40 C.F.R § 1 22.2. 73 Fed. Reg. 33,697, at 33,699, note 2 (June 13, 2008). In addition to the statements in the preamble, the final rule should expressly state in regulatory text that it does not change the regulatory status of water transfers. (p.

7

- 8)

Agency Response: Regarding water transfers, please see summary response at
12.3

.

Pennsylvania Municipal Authorities Association (Doc. #15374)

7.773 PMAA would support wastewater treatment systems and drinking water systems, and their auxiliary operations, to be specifically excluded from the d efinition of tributary.

a. We suggest that the exemption for wastewater treatment systems be expanded to include all facets of that treatment, such as recycled water storage ponds, reconstructed wetlands associated with water reuse, connecting trenches, et c.

b. Likewise, some of the same “natural” infrastructure mentioned above, as well as ground water recharge basins, are also applicable to water treatment systems for storage and retention, and should be included under the exemption provision. (p. 1)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdi ctional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water r euse and conservation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

The United States Conference of Mayors et al. (Doc. #15784)

7.774 The proposed rule provides that "waste treatment system s, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" (emphasis added) are not "waters of the U.S." In recent years, local governments and other entities have moved toward a holistic approach in treating stormwa ter by using ponds, swales and wetlands. Traditionally, such systems have been exempt from the CWA, but due to the broad nature of the proposed rule we believe the agencies should also exempt other constructed wetland and treatment facilities which may ina dvertently fall under theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

496 proposed rule. This would include, but not be limited to, water and water reuse, recycling, treatment lagoons, setting basins, ponds, artificially constructed wetlands (i.e. green infrastructure) and artificially constructed groun dwater recharge basins. Therefore, we ask the agencies to specifically include green infrastructure techniques and water delivery and reuse facilities under this exemption.

A. Green Infrastructure

With the encouragement of EPA, local governments across the country are utilizing green infrastructure techniques as a stormwater management tool to lessen flooding and protect water quality by using vegetation, soils and natural processes to treat stormwater runoff, These more beneficial and aesthetically pleasin g features, which include existing stormwater treatment systems and low impact development stormwater treatment systems, are not explicitly exempt under the proposed rule, Therefore, these sites could be inadvertently impacted and require Section 404 permi ts for green infrastructure construction projects if they are determined to be jurisdictional under the new definitions in the proposed rule.

Additionally, it is unclear under the proposed rule whether a Section 404 permit will be required for maintenance activities on green infrastructure areas once the area is established. Moreover, if these features are defined as "waters of the U.S.," they would be subject to all other sections of the CWA, including monitoring, attainment of water quality standards, con trolling and permitting all discharges in these features, which would be costly and problematic for local governments.

Because of the multiple benefits of green infrastructure and the incentives that EPA and other federal agencies provide for local govern ments to adopt and construct green infrastructure techniques, it is ill

- conceived to hamper local efforts by subjecting them to 404 permits or other requirements that would come with being considered a "waters of

the U.S."

B. Water Delivery and Reuse Facil ities

Across the country, and particularly in the arid west, water supply systems depend on open canals to convey water. Under the proposed rule, these canals would be considered "tributaries." Water reuse facilities include ditches, canals and basins, and are often adjacent to jurisdictional waters. These features would also be "waters of the U.S." and as such subject to regulation and management that would not only be unnecessarily costly, but discourage water reuse entirely. Together, these facilities se rve essential purposes in the process of waste treatment and should be exempt under the proposed rule.

Requests:

Clarify the waste treatment exemption by stating that green infrastructure practices and water delivery and reuse facilities meet the requireme nts of the exemption."

Expand the waste treatment exemption to include systems that are designed to meet any water quality requirements, not just the requirements of the CWA.

Provide a specific exemption for green infrastructure and water delivery and reus e facilities from the "waters of the U.S." definition. (p. 6

- 7)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

497 Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and w ater features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

With respect to stormwater control features (e.g., green infrastructure), please see the summary response at 7.4.4

7.775 Emergency Exemptions

In the past several years, local governments who have experienced natural or man

- made

disasters" have expressed difficulty obtaining emergency clean

- up waivers for ditches and other conveyances. This, in turn, endangers public health and safety and jeopardizes habitats. We urge the EPA and the Corps to revisit that policy, especially as more waters are classified as "waters of the U.S." under the proposed rule.

Request:

 Set clear national guidance for quick approval of emergency exemptions. (p. 7

- 8)

Agency Response: The need for emergency action for a specific time and place is

not related to the issue of whether a water is a defined “water of the United States”

under the Clean Water Act. R ather, the agencies believe that such situations are better addressed through implementation actions, such as streamlined permitting procedures, that can provide the tailored oversight necessary to protect vital water resources while adequately responding to unusual emergency circumstances.

Washington State Water Resources Association (Doc. # 16543 )

7.776 A. Real World Consequences Associated with the Proposal

The previously noted “expansion” will, in turn, have negative real world consequences without any concomi tant environmental benefits. Adoption of the proposal would significantly increase the time required before an entity can construct or modify necessary infrastructure; significantly increase the costs associated with the permitting, construction and potent ially the operation of such infrastructure; unnecessarily increase

post

- permitting mitigation costs; and potentially even preclude the construction and operation of the infrastructure, placing at risk the ability to timely meet essential consumptive use an d environmental/recreational water needs. For example:

... To the extent water supply agencies desire to maximize the use of scarce water resources through innovative recharge, reuse and recovery projects, many of which involve theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

498 construction and operation of holding basins and recharge ponds, as well as connecting canals and ditches, they will find that there is no exemption for such “water supply” activities comparable to that available to wastewater treatment facilities. Hence, employment of these necess ary facilities faces a new regulatory hurdle.

... (p. 7, 8)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water f eatures used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can e xacerbate supply issues. The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclus ion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

7.777 C. Examples of Proposal’s Impact on Municipal Water Suppl iers

Municipalities have a responsibility to meet water supply, wastewater treatment and stormwater control needs. Meeting these needs often requires significant investments in water storage reservoirs; water recycling and reuse facilities; desalinization plants; pump

back projects; groundwater recharge facilities; and reverse osmosis water treatment plants. Putting this water to beneficial use will also require the operation, maintenance and expansion of miles and miles of delivery and distribution pipelin es.

As the demand for water continues to rise, NWRA’s members are committed to undertaking a variety of efforts to meet this need. These efforts include extensive water

conservation efforts as well as the reclamation and reuse of water

– i.e. water recycli ng. Reclaimed and reused water is a beneficial use that fully utilizes local water resources and reduces the demand for imported water. The processes for reclaiming and reusing water are costly, but are becoming increasingly feasible in areas of the countr y where groundwater and surface water sources are strained and the cost or availability of imported water are prohibitive. Water authorities across the country are investing millions of dollars in infrastructure to utilize this drought proof water resource . Treatment and distribution costs of recycled water are already high, making this valuable resource marginally cost effective in some places. Any significant increase in regulation will escalate the cost of utilizing this water and discourage its developm ent.

Under the proposed rule, water reclamation and reuse facilities are not exempt from being designated “waters of the U.S.” As noted earlier, ditches that transport effluent or discharged water could also be considered a “tributary” under the proposed r ule and be categorically regulated. The proposed rule defines as a “tributary” any natural or manmade feature that has a bed, bank, ordinary high water mark, and conducts flow to another water. In addition, reclamation and reuse facilities are frequently l ocated in a floodplain or otherwise adjacent to jurisdictional water where all waters are categorically defined as “waters of the U.S.” While the proposed rule includes an exemption forClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

499 artificial lakes and ponds used exclusively for settling basins, such reuse facilities can function or take on the characteristics of a wetland and can receive and discharge water into surface ditches that are not exempt. The proposed rule’s wastewater treatment exemption would not extend to an associated water reuse facilit y because such facilities are not expressly “designed to meet the requirements of the Clean Water Act,” a condition stipulated in the rule. Many states have acknowledged the value of recycled

water. Some states like California have established a statewide goal (California Water Plan) of recycling 2.5 million acre feet of water by 2030. In 2009, .67 MAF was recycled; increasing to 2.5 MAF is ambitious, but necessary to help drought

- proof the state. Currently, 3.5 MAF of treated wastewater is being discharged to the ocean, and not beneficially reused.

The proposed rule’s impact on recycled water projects of this nature can be highlighted by one of NWRA’s members, the Eastern Municipal Water District (EMWD). EMWD is a water and wastewater agency in Southern Cal ifornia that utilizes nearly 100 percent of the water it generates, with recycled water constituting 30 percent of its entire water supply portfolio

– over 35,000 acre feet annually. In recent years EMWD, in cooperation with federal partners at the Bureau if Reclamation, has developed 5,714 acre

- feet of seasonal storage, five million gallons of elevated storage (to pressurize the system), 200 miles of recycled distribution water pipeline, and 19 pumping facilities. EMWD currently has greater demand than sup ply for recycled water, and in response has prepared unique

allocations for customers.

We are concerned that under the proposed rule, 10 EMWD recycled water storage sites could become jurisdictional because they are located in floodplains, are adjacent to jurisdictional water, and likely possess a subsurface hydrologic connection. After becoming jurisdictional, regular maintenance and vegetation removal of these 500 acres of ponds would require Sec. 404 permits. This added regulatory burden would not only

i ncrease the cost of recycled water, and potentially delay further development of recycled water storage ponds, but could hamper the development of this drought

- proof water supply. Numerous agencies in the arid southwest share this scenario, concern, and

di lemma.

Water reclamation and reuse facilities should be expressly exempt from this rule. The importance of this point is particularly evident in times of drought such as the one that currently affects most western states. Developing new sources of water fo r consumption should be encouraged. This rule could discourage water reuse and interfere with the successful deployment of water recycling programs.

This issue was highlighted during several hearings in the U.S. House of Representatives

where NWRA members testified. During a June 11, 2014 House Committee on Transportation and Infrastructure Committee Hearing, then EPA Deputy Administrator Robert Perciasepe responded to questions from Congresswoman Grace Napolitano that it was not EPA’s intention to regulate water recycling facilities. It is our hope that the Agencies follow through on this assertion and clearly exempt water recycling facilities and associated infrastructure. (p. 11

- 13)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling

structur es created in dry land are excluded. This new exclusion clarifies theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

500 agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importan ce of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

7.778 D. Examples of Proposal’s Impact on Groundwater Banking and Recharge

The Agencies have consistently stated that the proposed rule will not regulate groundwater. However, concern remains th at the proposal could inadvertently envelope some groundwater banking and recharge projects. Multiple NWRA members operate groundwater banking and recharge projects. These projects can capture unused irrigation water and treated effluent from municipal tre atment plants and divert it into basins designed to allow incoming flows to be “banked” in shallow aquifers for future use. Some of these facilities are located immediately adjacent to rivers. On occasion these sites were specifically selected based in par t on adjacency to ensure operation efficiency and maximize water savings. However, these facilities have never been subject to CWA jurisdiction. Groundwater banking is an efficient water storage method that helps to conserve water by reducing water loss du e to evaporation. The Agencies should provide additional clarity that the rule will not apply to groundwater, shallow subsurface aquifers and groundwater banking and recharge projects. (p. 13)

Agency Response: The agencies specifically exclude constructed detention and

ret ention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

Iowa League o f Cities (Doc. #18823)

7.779 Green Infrastructure

Another area within storm

- water systems that has raised concerns is the utilization of green infrastructure for the management of storm

- water runoff. This includes projects that include permeable paving, dike sys tems, vegetation, soils and natural processes. Some cities within the Iowa have been lauded by the EPA for their usage of this type

infrastructure to control storm

- water and gaining additional benefits important to the EPA

of nutrient reduction and flood m itigation. These cities now have to question whether these projects will need to meet WQS or if maintenance of the systems will require a Section 404 permitting process. Neither, the proposed rule language nor the preamble guidance address these systems fo r storm

- water management.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

501 City Example: After the 2008 flooding, some cities in Iowa have been utilizing green infrastructure, such as newly constructed wetlands, to control flooding and act as a part of their storm water system. They are concerned that these efforts that have been praised

coul d now be brought under further regulation.

Request for EPA Response: We request that the EPA specifically exclude green infrastructure and outline the Agency's understanding of what is included within green infrastructure similar to what was done for agric ultural practices under the joint interpretive rule with the Department of Agriculture. (p. 4

- 5)

Agency Response: With respect to stormwater control features (e.g., green infrastructure), please see the summary response at 7.4.4

Board of County Commissioners, Pitkin County , Colorado (Doc. #18921)

7.780 An additional exclusion should be provided for within the rules. This exclusion should relate to the development of municipal and residential water supplies that are utilized within the same natural river drainage from which the water is developed. This exclusion would recognize the at times exigent need for the development of domestic water supplies and the anticipated large percentage of this developed water resource returning

to the natural stream channels from which it was dev eloped after it is used than occurs in other uses. This exclusion would be a logical extension of the waste treatment systems exclusion. Including the requirement that development and utilization of water supplies

for domestic needs be within the same drai nage as the water naturally occurs recognizes that, if a water supply is developed and then exported away from the natural drainage of its origin, the water quality of the originating based could be severely degraded. As a consequence, the Agencies reviews would be relevant in such circumstances. (p. 3)

Agency Response: Many commenters asked for an exclusion for drinking water supply systems, similar to exclusions for wastewater treatment and stormwater control. Because water supply networks can be both complex in structur e and extensive in size, involving the use of tributaries as well as a variety of other features, the agencies determined that a complete exclusion of such systems is not appropriate. However, not all portions of these systems would be regulated under

the final rule. Some portions of these systems are tributaries, or even traditional navigable waters, and so would be regulated under this rule for the same reasons that all such waters are subject to regulation as “waters of the United States.” At

the same t ime, there are some portions of these systems that would be excluded from regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial,

construct ed lakes and ponds created in dry land).

Golf Course Superintendents Association of America et al. (Doc. #14902)

7.781 The Agencies are proposing for the first time by rule to exclude some waters and features that have by longstanding practice generally consid ered not to be WOTUS. Specifically, the Agencies propose that the following are not WOTUS notwithstanding whether they would otherwise be jurisdictional:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

502 • Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such p urposes of stock watering, irrigation, settling basins, or rice growing;

• Ditches excavated wholly in uplands that drain only uplands and have less than perennial flow;

• Small ornamental waters created by excavating and/or diking dry land for primarily aesth etic reasons; and

• Gullies, rills, and non

- wetland swales.

The way the Agencies have defined tributary, adjacent waters, and “other” waters is in direct conflict with the listed exemptions...Although these features (certain ditches, groundwater, gullies, ri lls, and non

- wetlands, etc.) are not WOTUS under the proposed rule, they can serve to establish a connection under the proposed rule (e.g. connection that demonstrates adjacency to jurisdictional or demonstrates that an “other water” has a significant nexu s to a traditional navigable water, interstate water including wetlands, and territorial sea). The way the Agencies have defined tributary, adjacent waters, and “other” waters is in direct conflict with the listed exemptions, as outlined in our above comme nts. Although these features (certain ditches, groundwater, gullies, rills, and non

- wetlands, etc.) are not WOTUS under the proposed rule, they can serve to establish a connection under the proposed rule (e.g. connection that demonstrates adjacency to juri sdictional or demonstrates that an “other water” has a significant nexus to a traditional navigable water, interstate water including wetlands, and territorial sea).

The golf industry asks EPA and the Corps to make explicit that, except for coverage

expre ssed under the CWA and presently applicable regulation, golf courses are exempted from the new WOTUS rule. Alternatively, we ask that the above features on a golf course are not considered WOTUS. The agency has suggested it is not their intention to regula te these features on a golf course setting as WOTUS. The Agencies should make the intent specific. It is important to have clear guidelines and examples for what is exempt and not rely upon general and vague terminology or intentions that will impact featu res on a golf course. (p. 17

- 18)

Agency Response: The final rule has modified the definitions of tributary and adjacent waters. The final rule also states that the excluded features not considered “waters of the United States” are excluded even where they otherwise meet th e terms of paragraphs (a)( 4 ) through (a)(8).

American Chemistry Council (Doc. #15186)

7.782 II. Cooling and Firewater Ponds

Many ACC members use cooling or firewater ponds to store and manage water for industrial purposes, often exclusively for the purpose of co oling some part of the facility itself. As such, these ponds are not part of a wastewater production or treatment system. Historically, the agencies’ policy and practice have not considered these ponds as “waters of the U.S.,” particularly where the coolin g ponds predate the CWA. Given the agencies’ repeated assurances that the Proposal’s rulemaking is intended only to clarify policy and practices and specifically not to expand CWA jurisdiction, these systems should beClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

503 explicitly excluded. However, potentia lly broad interpretations of the federal government’s jurisdiction under the Proposal could create ambiguity as to whether these ponds would be included. If the agencies consider these ponds “waters of the U.S.,” they would be subject to the requirements o f an applicable State water quality standard. To comply with the applicable standard, the cooling ponds would need to be designated for a specific use and would have to meet accompanying water quality criteria. Given their intended use in industrial proces ses, many, if not all, of these cooling ponds may not be able to meet either narrative or specific water quality criteria for dissolved oxygen, temperature, and turbidity.

More to the point, if the cooling ponds used for industrial water systems were not a ble to meet the designated use and water quality criteria, facilities would be required to list these waters as “impaired” according to the state

- specific CWA 303(d) list. Alternatively, the State would need to develop new designated use categories and wat er quality criteria. These additional CWA requirements would result in a significant new burden on EPA to develop new standards and criteria appropriate for the cooling ponds’ uses, as well as new NPDES or CWA 404 permits for discharges into or activities related to maintenance

of those waters.

Some ACC members use cooling water returns to send water back to manmade ponds or ditches. As discussed above, if cooling water ponds were considered “waters of the U.S.”, each individual return to the pond would als o be considered a point source under the CWA’s NPDES program. This requirement would be particularly problematic and inefficient in the case of an internal recycle pond system. In some of these systems, water is recirculated through the pond to be used aga in in the facility process while a side stream gets discharged to an existing NPDES system. The regulation of this type of pond and its connected feed streams under the NPDES program would likely require, among other things, the installation of flow measur ing and sampling devices.

Additional requirements for these recycle ponds would be especially onerous when one considers that any cooling water pond it returns to must already be maintained to ensure a pond discharge is fully compliant with its authorized NPDES permit. Thus, including cooling ponds not currently regulated under the NPDES program as “waters of the U.S” would result in a potentially massive burden and substantial compliance costs on the regulated community, and an increased administrative bur den on regulatory authorities,

all with no environmental benefit.

For these cooling ponds and related industrial systems, ACC supports and incorporates by reference the proposed exemption language provided in the comments of the American Forest and Paper A ssociation. Specifically, the regulatory exemptions listed in proposed 33 C.F.R. § 328.3(b) should be revised as follows:

(6) Man

- made or man

- altered bodies of water (including adjacent wetlands) that (i) are used for commercial purposes by a facility that owns or occupies the property on which the water is located and (ii) have no surface discharge to a water of the United States, other than through an NPDES

- permitted outfall or as a result of a catastrophic or unusual sustained rainfall event. As used in this paragraph, “used for commercial purposes” means use in the production,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

504 distribution, or sale of goods or services, including both direct uses and uses that support the commercial facility.

The exemption provided in this paragraph does not affect the s cope, application or implementation of any other exemption provided in this section.

This exemption would assure that those industrial or commercial waters that have a potential direct impact on “waters of the U.S.” are regulated, either through limitation s in an NPDES permit (individual or general) at the point of discharge or because the exemption would not extend to waters with an unpermitted discharge. Any water not designed to discharge to “waters of the U.S.” would not lose its exemption, however, if a discharge occurred because of flooding or overflow caused by an unusual sustained rainfall event, e.g. a 100

- year flood event. (p. 3

- 4)

Agency Response: In the final rule, t he agencies added exclusions for groundwater and erosional features, as well as exclusions for som e waters that were identified in public comments as possibly being found jurisdictional under proposed rule language where this was never the agencies’ intent, such as cooling ponds that are created in dry land. These exclusions reflect current agencies’ p ractice, and their inclusion in the rule as specifically excluded furthers the agencies’ goal of providing greater clarity over what waters are and are not protected under the

CWA.

7.783 III. Other Industrial Water Systems

ACC members use other industrial water systems that have been and should continue to be excluded from the definition of “waters of the U.S.” Based on longstanding policy and on the language and structure of the statute, the final rule should specify that water that is subject to a municipal, in dustrial, commercial, or agricultural use is not a “water of the U.S”, and that such use includes water that is being collected and treated prior to discharge to a “water of the U.S.”, or water that is stored or otherwise managed, without discharge. For ex ample, one ACC member uses a quarry that has been converted into a cooling water intake. This quarry is a manmade structure holding water that is being used for production processes. The water used in this system is not discharged back into the original qu arry; instead, it is used exclusively within the facility. Given the industrial purpose of the water held in the quarry and the fact that no water is discharged back into it, it should not be considered a “water of the U.S.”

ACC urges the agencies to clari fy in the final rule that all systems that hold, manage, or move water for collection, use, reuse, treatment, evaporation, infiltration or injection to groundwater, and aquifer storage, are excluded from the definition of “waters of the

U.S.”

ACC is very c oncerned that some of the statements contained in EPA’s Draft Connectivity Report will lead the agencies unlawfully to expand its CWA authority over the structures and water systems discussed in our comments above. For example, EPA

discusses certain featur es such as impoundments that potentially could be “connected” to downstream waters based solely on the fact that they hold water. 413 If the agencies were

413 Draft Connectivity Report at 4

- 45

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

505 to use this rationale to conclude that any structure that holds water affects and controls the supply of water and is thereby a “water of the U.S.”, it would radically and unlawfully sweep in industrial water systems that should not be regulated as “waters of

the U.S.”

For instance, ACC members often use impoundments to settle out solids in water prior to

th e water’s use and primary treatment. The impoundments are currently not regulated and should not be regulated as “waters of the U.S.” as they are not connected to a downstream water. However, applying the rationale used in the Draft Connectivity Report, th e agencies could assert jurisdiction over impoundments based on the simple fact that they hold water, concluding that they could affect and control the supply of water and thus are connected to them for the purposes of the CWA (despite how remote the conne ction is). This could lead again to many of the regulatory complications and negligible environmental benefits discussed above. (p. 4

- 5)

Agency Response: The existing exclusion for waste treatment systems moves to paragraph (b)(1) with no substantive changes. One ministeri al change is the deletion

of a cross

- reference in the current language to an EPA regulation that no longer

exists. See summary response at 7.1. Because the agencies are not addressing the substance of the exclusion, the agencies do not make conforming chan ges to ensure that each of the existing definitions of the “waters of the United States” for the various CWA programs have the exact same language with respect to the waste treatment system exclusion, with the exception of deleting the cross

- reference.

Pa ragraph (b)(7) of the rule also clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not juri sdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically excl ude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages wate r reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the

nation’s water under CWA

.

7.784 IV. Green Infrastructure Features

Some ACC members employ “green infrastructure features” in the form of rain gardens or low impact stormwater management, none of which are currently listed in the proposed rule’s exemptions. These “green infrastructure” facility features follow EPA’s definition and are used for “protecting and restoring natural landscape features and use natural systems (or systems engineered to mimic natural processes) to manage rain water

as a resource.” 414 EPA has stated that it “supports expanded use of green infrastructure to protect and restore waters while creating more environmentally and eco nomically

414 See www.epa.gov/greeninfrastructure.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

506 sustainable communities” and sees green infrastructure as part of its “strategic agenda to protect waters.” 415

In its stakeholder outreach related to the proposed rule, EPA staff publicly informed stakeholders that “rain gardens and similar green i nfrastructure would not be under the proposed rule because they are not wetlands or built in waters protected by the CWA.” 416
However, the stated position is not reflected in the Proposal.

If left unaddressed, the Proposal’s broad definitions of “tributary” and adjacent” could sweep in green infrastructure features as “waters of the United States” based on a remote connection. If these facilities are subject to CWA requirements, the agencies would create unnecessary compliance obligations and no incremental e nvironmental benefits. For instance, if a bioswale that conveys stormwater to downstream waters meets the overbroad “tributary” definition, it would be a water of the United States. Similarly, if a stormwater infiltration pond is constructed in the floodpl ain or riparian area of an (a)(1) through (5) water, it would be categorically jurisdictional. 417

The imposition of CWA requirements on these features would require landowners and operators to obtain costly and burdensome permits to perform simple maintenanc e (e.g. sediment and debris removal) on them. Additionally, many green infrastructure devices will be left unmaintained while the applicant awaits a permit, leading to reduced effectiveness of the features. Thus, ACC urges the inclusion of green infrastruc ture features in the final rule’s waste treatment systems exemption. Excluding these features makes good policy sense and is in keeping with EPA’s public statement that green infrastructure features would not be considered “waters of the U.S.” (p. 5

- 6)

Agency Response: Whi le the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4.4.

Aluminum Association (Doc. # 15388)

7.785 Becaus e the Proposed Rule does not delineate the starting point of the WUS, it may be interpreted to be any and all water at any time. This would create a regulatory quagmire. Moreover, it creates significant concerns for planning, capital utilization, and compl iance for the regulated community.

A straightforward way of avoiding these problems is to create an exclusion for all waters upstream of a designated permitted monitoring point (that is, an outfall authorized under a valid National Pollutant Discharge Elim ination System (NPDES) permit). Today a manufacturing facility has the flexibility to use or reuse waters within its processes until

415 EPA, “A Strategic Agenda to Protect Waters and Build More Livable Communities Through Green Infrastructure.” April 2011. http://wat er.epa.gov/infrastructure/greeninfrastructure/upload/gi_agenda_protectwaters.pdf

416 EPA and U.S. Army Corps of Engineers, Questions and Answers

– Waters of the U.S. Proposal at 6 (Sept. 9, 2014), http://www2.epa.gov/sites/production/files/2014

- 09/documents/ q_a_wotus.pdf (hereinafter, September 2014 Q & A).

417 79 Fed. Reg. 22198.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

507 such time as the water is discharged from the facility, usually from an authorized discharge point, which is regulated unde r the CWA through a NPDES permit.

The following diagram illustrates this concept:

Under the current regulatory interpretation of WUS a facility can use and reuse storm water, process water, heated water, etc. for the purposes of manufacturing requireme nts to minimize raw water use with few, if any, regulatory limitations. The discharge from the facility due to either normal operations or excessive rainfall is managed under the current water regulatory permit programs including, but not limited to, the s torm water program, the NPDES program, general permits, and pretreatment programs. These activities are disclosed to the agency and permitted accordingly.

The Proposed Rule has the potential to alter this regulatory scheme and regulate waters prior to the discharge point as illustrated in the following figure:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

508 We believe that this is an unintended consequence of the rule. Facilities that wish to recycle water, send water to treatment systems, or simply conserve water, may be required to install expensive and cost prohibitive treatment systems to clean water to meet water quality criteria prior to reusing the water or putting that water into a pond or ditch for reuse or transfer. Facilities that once were able to reuse/recycle on

- site water may ha ve to then utilize other sources of water such as potable water to meet their needs. This may affect other users in areas where water supplies are scarce, which is becoming a rising concern. This is particularly true of storm water that can be easily harve sted and reused within a facility. (p. 2

- 4)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dry land is appropriate. Please see summary response at 7.4. 4.

Dow Chemical Company (Doc. #15408)

7.786 3) Dow is particularly concerned that expanding the scope of the CWA would result in the additional regulation of non

- navigable waters or man

- made structures that are part of our facility infrastructure. Dow believes that facility infrastructure such as waste treatment systems were never intended to be regulated as jurisdictional waters under the CWA and that the final rule needs to clearly state this. At aClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

509 minimum, the proposed rule leaves much uncertainty about whet her industrial water systems/infrastructure will be subject to the CWA. Regulation of these systems would have little environmental benefit.

As written, the proposal would potentially include the following non

- navigable or manmade elements of facility infr astructure that are not currently considered jurisdictional under the CWA:

 retention and containment ponds;

 cooling water ponds;

 stormwater retention basins or ponds;

 ditches and canals;

 fire water basins or ponds; and

 brine ponds.

The proposed rule states that these infrastructure elements can be identified as waters of the United States. Dow is concerned that asserting jurisdiction over retention and containment ponds, cooling water ponds, stormwater retention basins or ponds, gravel pits and ditches and canals, and fire water basins and other similar infrastructure waters will result in an undue burden on the regulated community, unnecessary paperwork for government agencies through permitting the maintenance activities of the infrastructure

needed to saf

ely and reliably run the facilities. This additional work for both industry and for the governmental agencies charged with permitting will have little environmental impact on our nation’s water resources.

If these industrial water systems are identified as waters of the U.S., then the applicable State water quality standard would apply. Designated uses of the above identified waters would need to be established along with appropriate water quality criteria. This would negatively impede our ability to proper ly maintain our facilities as well as unnecessarily

increase the cost of maintenance.

In 1986, EPA proposed guidance that attempted to address the issue of man

- made water bodies at industrial facilities and excluded them from CWA Section 404 jurisdiction. EPA specifically addressed the damming of tributaries for industrial water use purposes (such as once

- through cooling water ponds, fire water sources, stormwater management, etc.) where water bodies were created in water drainage areas (e.g., drainage chan nels, intermittent creeks, and etc.). A significant number of these water bodies are associated

with once

- through cooling water systems, where the major use of the water body is for thermal cooling or infrastructure/support systems that are not currently s ubject to the Section 404 CWA jurisdiction.

In the case of cooling water ponds, if the agencies now decide to assert jurisdiction, all the individual returns to the cooling water pond would be considered point sources under.

These returns would have to be permitted individually as opposed to a single point source from the discharge of the cooling water pond. If subject to NPDES regulations, each individual return would most likely require the installation of flow measuring devices, sampling devices, and ele ctric utilities, in some cases. Any cooling water pond mustClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

510 already be maintained at a condition to ensure that any discharge from the pond is fully compliant with the authorized NPDES permit. Any additional requirements as a result of the proposed rule wo uld not benefit the environment but would clearly result in more paperwork/permitting for both the regulated entity and the agency responsible for the permitting.

In the past, EPA has designated some waters as non

- jurisdictional. The proposed rule

appears to allow for the reopening of previous jurisdictional determinations, contrary to EPA’s stated intent. These previously classified bodies of water are not specifically excluded from the proposed rule.

Dow Recommendation : As stated above, the Agencies need to withdraw and rewrite the

fundamental definitions included in the rule so that these definitions make it clear that

non

- navigable or manmade infrastructure elements continue to be non

- jurisdictional waters under the CWA. At a minimum, the proposed defini tions need to be fundamentally revised to more narrowly define and clearly exempt retention and containment ponds, cooling water ponds, aeration basins, stormwater retention basins or ponds, effluent holding basins, gravel pits and other groundwater access systems, ditches and canals, fire water basins or ponds, and any other industrial water system already designated as non

-

jurisdictional. (p. 5

- 6)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include certain wast ewater treatment and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered juri sdictional

. In the final rule, the agencies also added exclusions for groundwater and erosional features, as well as exclusions for some waters that were identified in public comments as possibly being found jurisdictional under proposed rule language

whe re this was never the agencies’ intent, such as cooling ponds that are created in dry land. These exclusions reflect current agencies’ practice, and their inclusion in the rule as specifically excluded furthers the agencies’ goal of providing greater

clari ty over what waters are and are not protected under the CWA.

With respect to stormwater control features, please see the summary response at

7.4.4

.

Rubber Manufacturers Association (Doc. #15419)

7.787 III. RMA recommends that EPA clearly exempt permitted indus trial ponds

In the proposed rule, there are three exemptions that could potentially apply to RMA members’ industrial ponds. Section 122.2(b)(1) exempts waste treatment systems such as “treatment ponds or lagoons, designed to meet the requirements of the Cl ean Water Act.” 76 Fed. Reg. 22268. Sections 122.2(b)(3) and 122.2(b)(5)(ii) exempt uplands ditches and artificial ponds used exclusively as settling basins. Id . But because “designed,” “uplands,” and “settling basin” are not defined, again it is not clear whether industrial ponds at RMA member facilities meet any of these exclusions.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

511 RMA members’ industrial ponds comply with numeric and non

- numeric limits in NPDES permits. As similarly noted supra, industrial ponds are typically lined with impermeable laye r of clay or plastic to prevent untreated water from leaching into other waters and have control measures such as baffles, weirs, and skimmers to remove solids, oils, and other contaminants. RMA members also monitor pH levels, remove chlorine,

and control biological oxygen demand. The purpose of these industrial ponds is to treat water used in the manufacturing process.

To clarify the rule, RMA recommends that EPA explicitly exempt industrial ponds covered by NPDES permits. If these ponds are considered waters of the U.S., there will be a significant regulatory burden on RMA members with no additional environmental benefit since these ponds are already permitted. As noted supra, NPDES permits require RMA members to control floating solids, settled solids, suspended solids, oil sheen, and other indicators of pollution. (p. 2

- 3)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include certain wastewater treatment and stormwater facilities that may address some of the f eatures discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional

.

7.788 V. RMA also supports the commercial waters exemption as proposed by the American Forest and Paper Association (AF&PA)

AF&PA recommends that the following exemption be added to proposed 33 C.F.R. §328.3(b), which designates certain waters as not waters of the U.S.:

(6) Man

- made or man

- altered bodies of water (in cluding adjacent wetlands) that (i) are used for commercial purposes by a facility that owns or occupies the property on which the water is located and (ii) have no surface discharge to a water of the United States, other than through an NPDES

- permitted ou tfall or as a result of a chronic or catastrophic rainfall event. As used in this paragraph, “used for commercial purposes” means use in the production, distribution, or sale of goods or services, including both direct uses (such as for log conditioning) a nd uses that support the commercial facility (such as fire protection or raw water treatment).

The exemption provided in this paragraph does not affect the scope, application or implementation of any other exemption provided in this section.

RMA supports t his exemption because it would cover the different types of RMA member ponds outlined in these comments. AF&PA’s proposal would reduce regulatory burden and clarify which ponds are exempted. (p. 3)

Agency Response: The final rule has expanded the features not considered

“w aters of the United States” to include certain wastewater treatment , artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, wa ters of the United States, these features may still be considered jurisdictional

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

512 Texas Chemical Council (Doc. #15433)

7.789 3. TCC Members Facilities Would be Unduly Impacted By the Additional Regulation of Non

- Navigable Waters and Man

- made Structures That Are Part of

the Facilities’ Infrastructure

TCC is concerned that, as written, the proposed rule would for the first time bring under federal CWA jurisdiction a number of non

- navigable or manmade features incorporated into facility infrastructure. These feature s include various impoundments (retention and containment ponds; cooling water ponds; stormwater retention basins; fire water basins and ponds; brine ponds), as well as ditches and canals, including those for transportation of water used solely for manufac turing purposes. EPA has historically not subjected such systems to CWA regulation, and it should not back away from that interpretation today: this would place an unreasonably high burden on both the regulated community and the state regulatory agency.

Th e potential impact on the industrial community in this regard would be substantial, taking into consideration the breadth of the CWA’s requirements and charges. These water features and systems would become subject to state water quality standards, and

tho se newly established “waters of the U.S.” would then need to obtain designated uses and comply with water quality criteria established by the state regulatory agency. Should such facilities remain unable to meet these requirements

– which would be highly l ikely in light of narrative criteria or specific water quality criteria for dissolved oxygen, temperature, and turbidity

– they would have to list the waters as impaired. 418

TCC members are particularly concerned about the impacts the proposed rule would hav e on industrial ponds, as well as ditches used for conveyance.

a. Industrial Cooling and Firewater Ponds & Industrial Water Systems

One particular area of concern for chemical manufacturing facilities is the impacts the proposed rule would have on their us e of cooling ponds for thermal cooling. These are widely used within the industry, and facilities currently have to obtain National Pollution Discharge Elimination Systems (NPDES) permits for the discharges from such ponds. Historically, EPA has not consid ered these cooling ponds “waters of the U.S.” However, if the agencies were to include cooling ponds in the definition of “waters of the U.S.,” they would be subject to state water quality standards, as indicated above. Additionally, every individual retur n into the pond would have to be permitted under an individual permit for being designated a point source, rather than solely the discharge from the cooling water pond itself. This could require the imposition of additional technology and monitoring that i s unnecessary to maintain compliance with the currently authorized NPDES permits.

Furthermore, the applicable state regulatory agency would incur the additional burden of developing new designated use categories and water quality criteria. EPA would also

h ave to take on new tasks, such as developing new standards and criteria specifically applicable to the cooling ponds, along with additional NPDES or CWA §404 permits tailored to activities surrounding the use of cooling ponds. All of these actions would

418 CWA §303(d) (33 U.S.C. §1313(d)).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

513 en hance the cost of compliance and increase the burdens on regulatory agencies without any environmental benefit. (p. 8

- 9)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include certain wastewater treatment and

storm water facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional

.

In the final rule, the agencies also added exclusions for groundwater and erosional features, as well as exclusions for some waters that were identified in public comments as possibly being found jurisdictional under proposed rule language where this was never the agen cies’ intent, such as cooling ponds that are created in dry land. These exclusions reflect current agencies’ practice, and their inclusion in the rule as specifically excluded furthers the agencies’ goal of providing greater clarity over what waters are an d are not protected under the CWA.

With respect to stormwater control features, please see the summary response at

7.4.4

CLUB 20 (Doc. #15519)

7.790 The rule should exclude, “water withdrawn from a stream for beneficial use” and “water

collected from natural sou rces and conveyed through a ditch.” (p. 2)

Agency Response: Please see the summary response at 7.4 and Compendium 6 on ditches.

Federal Water Quality Coalition (Doc. #15822.1)

7.791 10. Puddles

The version of the proposed rule that was submitted to OMB for interagency review included an exemption for puddles. 419 However, the agencies dropped that exemption before publishing the proposed rule in the Federal Register. According to the agencies, the exemption was deleted because ‘‘puddles’’ is not a sufficiently precise hydrologic term or a hydrologic feature capable of being easily understood. 420 The agencies also

claim that:

In addition, one commonly understood meaning for the term ‘‘puddle’’ is a relatively small, temporary pool of water that forms on pavement or uplands

immediatel y after a rainstorm, snow melt, or similar event. Such a puddle cannot reasonably be considered a water body or aquatic feature at all, because usually it exists for only a brief period of time before the water in the puddle evaporates or sinks into the gr ound. Puddles of this sort obviously are not, and have never been thought to be, waters of the United States subject to CWA jurisdiction. Listing

419 See OMB Review Draft, EPA

- HQ

- OW

- 2011

- 0880

- 0007.

420 79 Fed. Reg. at 22218.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

514 puddles also could have created the misapprehension that anything larger than a puddle was jurisdictional. Tha t is not the agencies’ intent. Id

. Unfortunately, because the agencies are proposing to assert jurisdiction over ephemeral features, puddles may in fact be viewed as jurisdictional if not excluded. Furthermore, because the agencies are proposing to establi sh jurisdiction based on biological connections, any water where biota, even insects, spend a part of their lifecycle, could be considered connected in a significant way to a navigable or interstate water or territorial sea. Moreover, the preamble language quoted above suggests that standing water that does not sink into the ground in a brief period of time could be a water of the U.S. Of course, how quickly water sinks into the ground is a function of how saturated the ground is already. Finally, EPA descr ibes vernal pools as “puddles,” 421 claims the authority to exercise jurisdiction over vernal pools on a case

- by

- case basis, and seeks comment on whether they should, as a category, be waters of the U.S. 422 Unless the agencies provide a rationale to distinguish between what is or is not “thought to be” waters of the U.S., all adjacent waters, including puddles, could become subject to federal jurisdiction, causing significant confusion and concern. (p. 21

- 22)

Agency Response: The final rule adds an exclusion for puddles. The pro posed rule did not explicitly exclude puddles because the Agencies have never considered puddles to meet the minimum standard for being a “water of the United States,” and it is an inexact term. A puddle is commonly considered a very small, shallow,

and hi ghly transitory pool of water that forms on pavement or uplands during or immediately after a rainstorm or similar precipitation event. However, numerous commenters asked that the agencies expressly exclude them in a rule. The final rule

does so.

7.792 3. Water Used for Municipal, Industrial, or Commercial Purposes.

Another example of non

-

jurisdictional water is water that is used or managed for municipal, industrial, or commercial purposes. Courts have held that water that is in use is not regulated. 423 EPA also h as long recognized the distinction between water that is in use and water that is p art of the waters of the U.S. 424 This policy is embedded in EPA’s water transfer rule, which draws the line between waters of the U.S. and water that is subject to a municipal , industrial or commercial use. “For example, if the water is

withdrawn to be used as cooling water, drinking water, irrigation, or any other use such that it is no longer a water of the U.S. before being returned to a water of the U.S., the

water has been subj ected to an intervening use.” 425 As EPA explains:

421 http://water.epa.gov/type/wetlands/vernal.cfm

422 79 Fed. Reg. at 22216.

423 American Iron and Steel Inst. v. EPA , 155 F.3d 979, 996 (D.C. Cir. 1997) (“The statute is clear: The EPA may regulate the pollutant levels in a waste stream that is discharged directly into the navigable waters of the United States through a "point sour ce"; it is not authorized to regulate the pollutant levels in a facility's internal waste stream.”).

424 See August 5, 2005, Memorandum From Anne Klee and Benjamin Grumbles to Regional Administrators, “Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers,” at 18.

425 73 Fed. Reg. 33697, 33704 (June 13, 2008) (emphasis added).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

515 [A water transfer] differs from a situation in which, for example, an industrial facility takes in water for the purpose of cooling some part of the facility itself. In such cases, the water used for coo ling loses its status as a water of the United States when subjected to an intervening industrial use

..... 426

If water that is being used were somehow a water of the U.S, then EPA could subject that use to permitting, gaining complete control of water suppl y and water use, contrary to the stated purpose of the CWA, discussed above.

Based on longstanding policy and on the language and structure of the statute, the agencies should specify that water that is subject to a municipal, industrial, commercial,

or ag ricultural use is not a water of the U.S, and that such use includes water that is being collected, stored, managed, used, or treated prior to discharge to a water of the U.S. or without discharge. This is the legal rationale for the waste treatment system exemption. It is the legal rationale that would clarify a number of areas of confusion. This clarification also would address concerns raised by so me of the SAB Panel members. 427

For example, clarifying that water that is in use is not jurisdictional makes it clear that a ditch that moves cooling water or process water or waste water around an industrial facility every month of the year is not a water of the U.S. Similarly, a canal used by an irrigation district to move water or hold water every month of the year would not be a

water of the U.S.

This recommendation clarifies that all systems that hold, manage, or move water for collection, reuse, treatment, evaporation, infiltration or injection to groundwater, and aquifer storage, would be outside the defini tion of waters of the U.S. This exclusion would continue to apply even if a storage pond began to grow cattails or if an aquifer storage and recovery system recharges to surface water. Water that is being used by municipalities, industries, and farmers and ranchers are not federal waters. (p. 67

- 68)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include certain wastewater treatment and stormwater facilities that may address some of the features discussed in this

com ment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional

. In the final rule, the agencies also added exclusions for groundwater and erosional

featu res, as well as exclusions for some waters that were identified in public comments as possibly being found jurisdictional under proposed rule language where this was never the agencies’ intent, such as cooling ponds and groundwater recharge ponds that are created in dry land. These exclusions reflect current agencies’ practice, and their inclusion in the rule as specifically excluded furthers the agencies’ goal of providing greater clarity over what waters are and are not protected under the CWA.

426 Id . at 33705 n.10 (emphasis added).

427 See supra pp. 49

- 50.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

516 Minnesota Chamber of Commerce (Doc. #16473)

7.793 ...the Agencies should amend the exclusion for waste treatment systems in proposed section (b)(1)

- or add a new exclusion

- to expressly exclude water

- management systems at mining and related industrial facilities. These featur es tend to serve the same beneficial purposes as t hose covered by the proposed rule but for various reasons

- e.g., being designed to meet state or other federal

- law legal requirements rather than being specifically designed to "meet the purposes of the Cle an Water Act"

- may not qualify for

the waste

- treatment system exemption as proposed. (p. 5)

Agency Response: The existing exclusion for waste treatment systems moves to paragraph (b)(1) with no substantive changes. See summary response at 7.1. One ministerial change is the deletion of a cross

- reference in the current language to an EPA regulation that no longer exists. Because the agencies are not addressing the substance of the exclusion, the agencies do not make conforming changes to ensure that each of the existing defini tions of the “waters of the United States” for the various CWA programs have the exact same language with respect to the waste treatment system exclusion, with the exception of deleting the cross

- reference.

However, the final rule does include several ref inements to the

exclusion for water

- filled depressions created as a result of certain activities. In addition to construction activity, the agencies have also excluded water

- filled depressions created in dry land incidental to mining activity. This change is consistent with the agencies’ 1986 and 1988 preambles, which generally excluded pits excavated for obtaining fill, sand or gravel, and there is no need to distinguish between features based on whether they are created by construction or mining activity.

7.794 The Minnesota Chamber recommends that the Agencies make the following changes to the Proposed Rule:

1. The Agencies should amend the exclusion for waste

- treatment systems in proposed section (b)(l)

- or alternatively, add a separate exclusion

- to expressly include holding basins, settlement ponds, tailings basins, and other water

- management systems at mining and related facilities, as well as the on

- site ditches and conduits that connect them.

... (p. 6)

Agency Response: The final rule does include exclusions related to mining sites, ditches and wastewater recycling structures. See discussion of these exclusions elsewhere in this Compendium.

7.795 C. The Proposed Rule Would Create Other Impediments to the Efficient Operation of Minnesota Mining Facilities.

... 2. Mine Pit Sumps

The pi ts of open

- pit mines in Minnesota and other states frequently reach depths below t he natural water table. To avoid groundwater inundating the pit and destabilizing pit walls, mine operators employ systems of pumps to dewater the mine pit sumps. TheseClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

517 sump s have not been subject to regulation as "waters of the United States" in Minnesota; they are simply inherent in the operational process of open

- pit mining. Discharges of pumped water are subject to appropriate regulatory controls, but the sumps themselves are not jurisdictional waters. The Minnesota Chamber is concerned that under t he Proposed Rule's broad definition of "significant nexus," the sumps could be deemed jurisdictional as "other waters" on account of their interaction with other waters flowing into the sump. Operation of open

- pit mines would become significantly more difficult and expensive if dewatering activities in sumps were subject to 404 permitting requirements.

Recommendation:

The Agencies should make clear

- in the preamble to the Final R ule or in the Final Rule

itself

- that open

- pit mine sumps are not "waters of the United States." (p. 7)

Agency Response: The existing exclusion for waste treatment systems moves to paragraph (b)(1) with no substantive changes. See summary response at 7.1. One

ministerial change is the deletion of a cross

- reference in the current language to an EPA regulation that no longer exists. Because the agencies are not addressing the substance of the exclusion, the agencies do not make conforming changes to ensure

that each of the e xisting definitions of the “waters of the United States” for the various CWA programs have the exact same language with respect to the waste treatment system exclusion, with the exception of deleting the cross

- reference.

However, the final rule does inclu de several refinements to the exclusion for water

filled depressions created as a result of certain activities. In addition to construction activity, the agencies have also excluded water

- filled depressions created in dry land incidental to mining activity . This change is consistent with the agencies’ 1986 and 1988 preambles, which generally excluded pits excavated for obtaining fill, sand or gravel, and there is no need to distinguish between features based on whether they are created by construction or mi ning activity.

American Society of Civil Engineers (Doc. #19572)

7.796 Clarify Potential Jurisdiction Over Man

- Made Recycled Water Conveyance And Storage Features

Similarly, there are other man

- made water conveyance and storage features, such as those

used for r ecycled water management and use, which should be expressly excluded from CWA jurisdiction. There are instances of recycled water conveyance or storage occurring in natural or previously natural waterbodies that understandably may not warrant exemption. Th erefore, the use of “dedicated” and “man

- made” in an exemption could provide distinction and clarification. There are instances where recycled water is impounded or conveyed in dedicated man

- made facilities that have a bed, bank, and

OHWM and contribute fl ow to waters of the U.S. or meet the proposed rule’s definition of “adjacent” to jurisdictional waters. However, these features these should be expressly exempted from the definition of “waters of the U.S.” Otherwise, the intended uses of

these features fo r which they were built would be severely hindered or possibly abandoned. (p. 10)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

518 Agency Response: Paragraph (b)(7) of the rule also clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wast ewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

Although the agencies have m odified the definition of “tributary” in the final rule, the preamble states that the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land.

Pinnacle Construction & Development Corp. (Doc. #1807)

7.797 ... the exclusion for waste treatment systems and non

- wetl and swales is not clear in that it fails to encompass the full array of green infrastructure devices (i.e., rain gardens) and other systems installed voluntarily on private property that should be exempt from federal oversight. (p. 2)

Agency Response: With respect to storm water control features, (for example, green infrastructure, please see the summary response at 7.4.4

Kingsport Horizontal Property Regime and Kingsport Homeowners Association, et al. (Doc. #4847)

7.798

... I have another property on the Intracoastal Waterway that the Corps issued a permit to someone other than the property owner and that person excavated my property without my consent. Here, the Corps authorized someone other than the property owner to turn my property into what is considered today, to be waters of the United States. I believe that something like this should also be exempted from any definition of water of the United States. Here the Corps through some sort of negligence, has created waters of the United states where none existed prior to the improp er permitting by the Corps. This would also reduce future lawsuits and reduce regulatory costs of Corps.

I have several pro perties that have been distu rbed by the Local Mosquito Control District

from the 1920’ s throught 1960's. These were part of a Statewi de program to eradicate a dangerous health hazard. The State of Florida in there state statutes has a provision to allow these properties that were once uplands, to not be considered waters of the State.

The rule is contained in 62

- 340.750 FAC. Which, if y ou can prove the property was an upland previous to the mosquito control ditching, performed by the Agency, then the property is not considered a wetland today. I beleive the Corps should also adopt the same type of rule, as it relates to the definition fo waters of the United States. This couldClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

519 easily be included as an exemption to the definition, to state that any property exempted by the State under it's statutes or rules is also exempted from the definition of waters of

the United States. This would als o reduce future lawsuits and reduce regulatory costs of Corps. (p. 1

- 2)

Agency Response: This definitional rule does not change the agencies’ longstanding practices or regulations governing the implementation of this rule and are outside the scope of this rule. Nothing in this rule affects the enforcement of the CWA and is outside the scope of this rule.

Kerr Environmental Services Corp. (Doc. #7937.1)

7.799 328.3(b)(5) Should Include an additional listing for: "Pits Excavated in Dry Land for the Purpose of Obtaining Fill, Sand o r Gravel Unless and Until Construction or Excavation Operation is Abandoned and the Resulting Body of Water meets the

Definition of Waters of the United States (See 33 CFR 328.3(a))".

This is the only general exemption stated in the preamble of November 13 , 1986 (page 41217) not included in the proposed list at 33 CFR 328.3(b). These areas have traditionally not been regulated unless abandoned. We recommend continuing the existing practice by the USEPA and USACE of not regulating these areas. Localities and States regulate the movement of sand, gravel and fill within construction sites. Such pits may be used as a construction related Erosion and Sediment Control practice, required by state law, and then refilled after construction. The NPDES program regulate s the stormwater discharges from such facilities. While not ''waste treatment systems... designed to meet th e requirements of the Clean Water Act" they may well be constructed to comply with state water quality and/or erosion and sediment control requireme nts and therefore should be exempt by expanding the wording at 33 CFR 328.3(b)(1 ). For simplicity we recommend creating a separate category for this type of non

- water of the US and/or erosion and sediment control requirements and therefore should be exempt by expanding the wording at 33 CFR 328.3(b)( 1 ).

For simplicity we recommend creating a separate category for this type of non

- water of the US. (p. 4

- 5)

Agency Response: The final rule includes several refinements to the exclusion for

water

- filled depressions created as a result of certain activities. In addition to construction activity, the agencies have also excluded water

- filled depressions created in dry land incidental to mining activity. This change is consistent with the agencies’ 1986 and 1988 preambles, which gene rally excluded pits excavated for obtaining fill, sand or gravel, and there is no need to distinguish between features based on whether they are created by construction or mining activity.

7.800 Ponds

Ponds should not, by their definition, necessarily be a defau lt water of the United States via their inclusion as tributaries. As stated in the preamble, the USEPA and USACE are considering tributaries to be waters of the US by rule (page 22188). Man

- made ponds, wholly in uplands and draining only uplands should not be considered waters of the US, and per proposed exclusions stated at 328.3(b)(5)i

- iv are not considered waters of the US. Ponds should be subject to the Significant Nexus test when the government considersClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

520 them to be other than not a water of the US. Alt ernatively the government can assert it is an Adjacent Water, and so has alternative avenues for jurisdiction and does not need the added confusion of assuming that all are tributaries. (p. 7)

Agency Response: The final rule states that a rtificial lakes or ponds created by excavating and/or diking dry land and used primarily for such purposes as stock watering, irrigation, settling basins, or rice growing are not “waters of the United States.” In this exclusion, the agencies have changed “exclusively” to “primarily” in

desc ribing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and

ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been

illustrative rat her than exhaustive, and this addition responds to many requests to clarify that cooling ponds created in dry land are excluded.

Vulcan Materials Company (Doc. #14642)

7.801 Categorically, flood plains and associated riparian areas should be exempted from

consid eration as jurisdictional waters, unless such areas qualify as jurisdictional based on current criteria. (p. 4)

Agency Response: In response to comments received, the final rule has made changes to the proposed definitions of “neighboring”, “floodplains”, and “riparian

are a.” I n the rule the agencies establish a definition of neighboring which provides additional specificity requested by some commenters, including establishing a floodplain interval and providing specific distance limits from traditional navigable waters, in terstate waters, the territorial seas, impoundments, and tributaries. See the preamble for more information on the factors used to evaluate adjacent waters.

West Valley Planned Communities (Doc. #18906)

7.802 IV. Several Exemptions Are Necessary For The Rule To Be Clearer, Not Lead To

The Illegal Expansion Of The Jurisdiction Of The CWA, And To Avoid Causing A Significant Burden On And Cost To Planned Communities.

In stakeholder meetings, EPA has requested that stakeholders identify which exemptions they need in order to achieve the intention of the rule to provide clarification. The following is a list of exemptions that planned communities would need in order to avoid the rule causing an undue economic and regulatory burden:

 A "grandfathering" provision to allo w existing water features, primarily drainages, associated with planned communities and its recreation features to

continue to be utilized and, by rule, not within the jurisdiction of the CWA.

 An exemption for flood control or erosion control features. The se control features

serve an important role in preventing pollution. However, as written, the proposed

rule could allow the Army Corps or EPA to assert jurisdiction over a flood or

erosion control feature if it directly, or through any other waters, discha rges into an interstate or traditionally navigable water.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

521  There should be a general exemption for golf courses, specifically water features

such as lakes and ponds, as well as drainage ditches. Golf courses serve an important purpose in protecting headwate rs. This is accomplished through best management practices and, typically, by designing the course such that waters, which could otherwise cause costly flooding, are directed into a flood control district canal or system.

 An exemption for constructing, mod ifying, or decommissioning man

- made or

man

- altered water features if the construction, modification, or decommissioning

will eliminate or prevent a significant nexus into a downstream interstate or traditionally navigable water.

There are three exemptions in the current proposal which seemingly attempt to accomplish some of the scope contemplated by these proposed exemptions. See, Proposed Rule at (t)(5)(ii)

- (v) ("(ii) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusive ly for such purposes as stock watering, irrigation, settling basins, or rice g r owing; (iii) Artificial reflecting pools or swimming pools created by excavating and/or diking dry land; (iv) Small ornamental waters created by excavating and/or diking dry lan d for primarily aesthetic reasons; (v) Water

- filled depressions created incidental to construction activity. . ."). However, these exemptions are too narrow and do not address the practical operation of most planned communities or its

recreational features . More focused exemptions, which explicitly exempt certain water features, are necessary to achieve the intended "clarification" of the proposed rule. (p. 4

- 5)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for

stormwater control features cons tructed to convey, treat, or store stormwater that are created in dry land. See summary response at 7.4.4. This exclusion responds to numerous commenters who raised concerns that the proposed rule would adversely affect municipalities’ ability to operate and maintain their stormwater systems, and also to address confusion about the state of practice regarding jurisdiction of these features at the time the rule was proposed. The agencies’ longstanding practice is to

view stormwater water control measures th at are not built in “waters of the United

States” as non

-

jurisdictional. Conversely, the agencies view some waters, such as channelized or piped streams, as jurisdictional currently even where used as part of a stormwater management system. Nothing in the proposed rule was intended to change that practice.

The agencies do not believe it is appropriate to exclude features created as part of a golf course. However, there are streamlined permitting options, such as certain

Nationwide Permits for residential or recreational development that may be utilized

to authorize certain of these activities. Similarly, the agencies do not feel it is appropriate to add an exclusion to eliminate or prevent significant nexus. The

available science indicates that many man

- made features can have a significant effect on downstream waters and should be evaluated for coverage as “waters of the

United States.”

With regard to the comment on the need for a “grandfathering provision”, this rule is effective 60 days after Federal Register publication. Under existing Corps’Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

522 regulations and guidance, Corps’ approved jurisdictional determinations generally are valid for five years. The agencies will not reopen existing approved jurisdictional determinations unless reques ted to do so by the applicant. All jurisdictional determinations made on or after the effective date of this rule will be

made consistent with this rule. Similarly, consistent with existing regulations and guidance, jurisdictional delineations associated with issued permits and authorizations are valid until the expiration date of the permit or authorization.

National Association of Home Builders (Doc. #19540)

7.803 ii. Green Infrastructure Features are not “Waters of the United States.”

EPA defines green infras tructure as a means of “protecting and restoring natural landscape features and using natural systems (or systems engineered to mimic natural processes) to manage rain water as a resource,” and touts its many benefits, including

increased climate resilienc y, reduced urban heat island effects, lowered building energy demands, and sustainable communities. 428 The Agency “supports expanded use of green infrastructure to protect and restore waters while creating more environmentally and economically sustainable co mmunities” and sees green infrastructure as part of its “strateg ic agenda to protect waters.” 429 Additionally, President Obama’s Council on Climate Preparedness and Resilience promotes green infrastructure, stating, “By weaving natural processes into the bui lt environment, green infrastructure provides not only stormwater management, but also improved water quality , greenhouse gas reduction, flood mitigation, and recreational opportunities.” 430 To further promote its widespread use, EPA along with HUD, DOT, USD A, DOI, DOD, and DOE recently announced the development of a broad

- based, multi

- sector Green Infrastructure Collaborative, and in 2015, EPA plans to provide green infrastructure technical assistance grants t o at least 25

communities. 431 Clearly, there is bro ad federal support of green infrastructure.

In spite of this, EPA and the Corps do not recognize green infrastructure features, including rain gardens and low impact development stormwater management, under the waste treatment systems exclusion. This omis sion is unsettling to NAHB’s 140,000 members, who regularly employ low impact development devices and other stormwater waste control technologies to reduce runoff and associated pollutant discharges from construction sites. The Agencies must acknowledge th at on

- site stormwater control systems do not contain waters of the United States and, furthermore, are explicitly excluded from CWA jurisdiction under the waste treatment systems exception.

428 See www.epa.gov/greeninfrastructure (last accessed Nov. 6, 2014).

429 EPA, “A Strate gic Agenda to Protect Waters and Build More Livable Communities Through Green Infrastructure” (April 2011) available at http://water.epa.gov/infrastructure/greeninfrastructure/upload/gi_agenda_protectwaters.pdf

430 Office of the President, Priority Agenda: Enhancing the Climate Resilience of America’s Natural Resources. Council on Climate Preparedness and Resilience (October 2014) at 34, available at http://www.whitehouse.gov/sites/default/files/docs/enhancing_clima te_resilience_of_americas_natural_resources.pd

f

431 Id . at 42.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

523 Regrettably, the closest the Agencies have come to suggesting gree n infrastructure is excluded from CWA jurisdiction came in the form of an unofficial Q & A regarding the proposed rule that EPA posted on i ts website in September 2014: 432

[QUESTION] 22. Is my rain garden regulated as a ‘water of the US’ under the proposal?

ANSWER: No. Rain gardens and similar green infrastructure would not be regulated under the proposed rule because they are not wetlands or built in waters protected by the CWA.

EPA’s answer is problematic for several reasons. First, and most importantly, if this is truly the case, why haven’t the Agencies included green infrastructure and similar stormwater management devices explicitly under the proposed rule’s waste treatment systems exclusion? Indeed, this informal Q & A is not a regulatory document and w ill not be published in the CFR. What’s more, under the proposed broad definitions of “tributary,” “adjacent waters,” and “other waters,” green infrastructure and other stormwater management features could quite readily be deemed waters of the United

State s, either categorically or on a case

- by

- case basis. For instance, if a bioswale that conveys stormwater to downstream waters meets the overbroad tributary definition, it would be a water of the United States. Similarly, if a stormwater infiltration pond is constructed in the floodplain or riparian area of an (a)(1) through (5) water, it would be categorically jurisdictional. Second, green infrastructure devices, namely rain gardens, although they may not have wetland characteristics (e.g., wetland hydrology , wetland plants, and hydric soils) when first constructed, can readily develop these traits over time

– traits that can actually help them perform better in reducing flows and removing pollutants. Further, contrary to EPA’s answer in the Q & A, rain garde ns and bioswales are commonly built within wet weather conveyances that could meet the Agencies’ proposed “tributary,” “adjacent waters,” or “other waters” definitions. So, to state that green infrastructure features are not waters of the United States bec ause they are “not wetlands or built in waters protected by the CWA” is relatively cold comfort for the regulated community.

Equally troublesome is that while EPA proclaims green infrastructure’s many environmental and economic benefits, by not explicitly excluding green infrastructure from CWA jurisdiction, the Agencies create a disincentive to employ such practices. If rain gardens, bioswales, and other stormwater treatment devices are waters of the United States, landowners and operators will have to obt ain costly and time intensive permits in order to perform simple maintenance on them including the removal of sediment and debris. This will be unnecessarily burdensome. Additionally, many green infrastructure devices will be left unmaintained while the ap plicant awaits a permit, leading to reduced effectiveness of the features and increased pollutant loading to downstream waters.

Home builders in Houston, Texas, recognize this conundrum in their comment letter on the proposed rule. 433 Houston is known as the Bayou City. The City, Harris County, and

432 September 2014 Q & A at 6.

433 Letter from the North Houston Association, the West Houston Association, and the Woodlands Development Company to the Proposed Rule “Definition of ‘Waters of the Un ited States’ Under the Clean Water Act” docket.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

524 the drainage districts with authority over development in this region have begun to embrace a wide variety of low impact development and green infrastructure as the best method to accommodate drainage. Houston has awoken to the fact that being the Bayou City gives it a unique corridor system for a wide range of desirable urban and suburban uses that both relies upon and promotes better water quality. But if rain gardens, bioswales, and biofilters become waters of th e United States as a result of today’s proposed jurisdictional expansion, these green initiatives will require costly permits for routine maintenance and impose unwarranted burdens on the state (e.g., development of water quality standards, water quality m onitoring requirements, development of TMDLs for green infrastructure features not attaining water quality standards). Ultimately, the use of green infrastructure will come to a screeching halt.

Additionally, if green infrastructure features are waters of the United States, all other CWA programs will apply to them. As a result, states will, among other requirements, have to monitor water quality, designate beneficial uses, establish water quality standards, and establish TMDLs for any green infrastructure features under the jurisdiction of the CWA. This is absurd.

The Agencies must confirm that green infrastructure features, such as rain gardens, bioswales, and treatment wetlands, are not waters of the United States. Additionally, the Agencies should specif

ically include green infrastructure features in the waste treatment system exclusion. (p. 109

- 111)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features (e.g., green i nfrastructure) built in dry land is appropriate. Please see summary response

at 7.4.4.

Texas Mining and Reclamation Association (Doc. #10750)

7.804 4. The Agencies Should Create a New Exclusion for On

- Site Waters at Mine Sites Mandated by Other Regulatory Sch emes

The Agencies should also add an exclusion for water management features on mine sites that are required under other regulatory schemes, including CWA compliance. Even if

on

- site waters might otherwise meet the new definition of "waters of the United S tates," such an exclusion is warranted to avoid putting mine operators in a position where they would be unable to meet the requirements of other regulatory schemes.

In addition to the CWA requirements, including permitting, monitoring, and reporting

TMRA' s members with coal mining operations must conduct all mining and reclamation activities in accordance with SMCRA and state laws (as with the CWA, Texas is a primacy state under SMCRA and operates its own state surface coal mining regulatory program). In p articular, SMCRA requires that mining and reclamation activities be conducted to protect the hydrologic balance within the mine site and adjacent areas. 434
The close relationship between surface coal mining and CWA rules, and even overlap, for water quality protection standards is evident in Texas' surface mining regulations that

434 See, e.g. , 30 U.S.C. § 1265(b)(10)(B)(i); 30 C.F.R. § 816.41.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

525 state "In no case shall federal and state water

- quality statutes, regulations, standards, or

effluent limitations be violated. 435

To meet SMCRA requirements, mine operators rely on "si ltation structures," which include sediment ponds, permanent and temporary ditches, permanent and temporary impoundments, diversions, and other water management features. 436 Because of the dynamic nature of mining operations, siltation structures are often modified or moved to ensure that water draining from disturbed areas is handled and treated appropriately prior to discharge. And SMCRA requires that "[s]iltation structures shall be maintained until removal is authorized by the regulatory authority and th e disturbed area has been stabilized and revegetated." 437 SMCRA also requires mine operators to remove siltation

structures after disturbed areas are reclaimed. 438 If these sorts of structures are now deemed "waters of the United States" under the proposed rul e, mine operators may face situations where they cannot meet SMCRA requirements because they are unable to obtain Section 404 permit coverage for whatever reason. In other words, mine operators could be impeded from fulfilling their obligation to remove se diment ponds and diversions, and reclaiming the site, because of delays or problems getting 404 permit approvals. To avoid this conundrum, the Agencies should include an exclusion for siltation structures that are constructed, maintained, and reclaimed in accordance with SMCRA or other regulatory requirements. (p. 18

- 19)

Agency Response: As stated in the SMCRA statute, SMCRA “shall not be deemed in any way to repeal or supersede any portion of the Federal Water Pollution

Control Act and no control or treatment under this su bsection shall in any way be less than that required under the Federal Water Pollution Control Act.” The agencies believe that the two statutes have complementary, but differing, mandates and therefore is not appropriate to add a specific exclusion for fea tures authorized under SMCRA. However, it is important to note that current agencies’ practices

often consider some features described in this comments as “waste treatment systems” during the active period of mining, and are therefore excluded from

coverag e until reclaimed.

7.805 The proposed rule is silent regarding the potential impact on old works. These include old sediment ponds, diversions and other water management structures built on coal mine sites prior to enactment of SMCRA. It also includes impounded water in old abandoned and unreclaimed sites, such as between spoil piles and abandoned pits. They are often referred to as "orphan spoils" areas. Some of these areas may be reclaimed or reworked under the Office of Surface Mining's Abandoned Mine Lands P rogram, and some may be redisturbed for new mining activities under the current SMCRA regulatory program. Under the existing regulatory framework, Corps staff has indicated that these old works are not jurisdictional waters, but this could change under the proposed rule for all of the

435 Texas Administrative Code Title 16, Part 1. Rule § 12.339(c). Permanent Program Performance Standards

— Surface Mining Activities. Hydrologic Balance.

436 See 30 U.S.C. § 1265(b)(10)(B)(i); see also 30 C.F.R. §§ 816.43 to 816.49.

437 See 30 C.F.R. § 816.46(b) (4).

438 See 30 U.S.C. § 1265(b)(10); see also 30 C.F.R. § 816.43(a)(3) ("Temporary diversions shall be removed promptly when no longer needed to achieve the purpose for which they were authorized.").Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

526 reasons discussed above in Section I.B. The Agencies should clarify that these features

are not jurisdictional. This can be accomplished by adding language to the effect that waters created through historic mining activities, either purposefully or inadvertently, including impounded waters in abandoned or partly reclaimed mine sites, and waters in

o ld diversions and other water management structures, are excluded from the definition of waters of the United States. (p. 22)

Agency Response: The rule includes several refinements to the exclusion for

water

- filled depressions created as a result of certain activities. In addition to construction activity, the agencies have also excluded water

- filled depressions created in dry land incidental to mining activity. This change is consistent with the agencies’ 1986 and 1988 preambles, which generally excluded pits excavated for obtaining fill, sand or gravel, and there is no need to distinguish between features based on whether they are created by construction or mining activity. A number of

commenters indicated that these water

- filled depressions created in dry land are

often l eft on a site after construction or mining activity is complete in order to provide beneficial purposes, such as water retention, recreation, and animal habitat.

For features that do not meet these criteria, an jurisdictional determination is
necessary to evaluate if the waters meet any of the criteria for coverage under (a)(1)

- (a)(8), regardless of origin. The available science indicates that many man

- made features can have a significant effect on downstream waters and should be evaluated for coverage as “waters of the United States.”

Wyoming Mining Association (Doc. #14460)

7.806 In addition to streams, ditches, and ponds, playas are common features at many Wyoming mines. These playas may be large or small, may contain minor functional wetlands, and may provide recharge of deeper groundwater or be supported by discharge of groundwater. However, most water in the playas is lost to evapotranspiration. Currently, playas and internally draining depressions are not jurisdictional based on the U.S. Supreme Court decis ion in Solid Waste Agency of Northern Cook County v U.S. Army Corps of Engineers , (No. 99

- 1178 (January 9, 2001). However, a strict interpretation of the Connectivity Report would determine that the playas are hydraulically connected to nearby streams and wetlands. In fact, the connections between nearly all playas and nearby stream channels and wetlands is tenuous at best and these playas should not be assumed to be hydraulically connected and should not be jurisdictional under the proposed rule. (p. 5)

Agency Response: Th e agencies at this time are not able to determine that the available science supports that playa lakes as a class have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas. However, to be clear, under the rule, in dividual waters of the suggested additional subcategories are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) (e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water

or one that is determi ned on a case

- specific basis to have a significant nexus to a traditional navigable water, interstate water, or the territorial seas). See the Technical Support Document, section I , for a discussion of the SWANCC decision’s effect on jurisdiction.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

527 CONSOL E nergy, Inc. (Doc. #14614)

7.807 Sediment ponds, slurry ponds, impoundments, ditches, and other water control features found on mining sites not currently considered jurisdictional could be covered by the proposed definition of "water of the US". These features a re necessary for the functionality of mining operations in an environmentally sound way. If these features are included as a "water of the US" it has the potential to vastly increase water usage at mining facilities. These features are often times already regulated by state and federal authorities such as the Surface Mining Control and Reclamation Act (SMCRA). CONSOL requests that language be included to clearly state that these features intended for the management of run

- off and mining wastes are exempt fr om inclusion in the final definition of "waters of the US". (p. 3)

Agency Response: Current agencies’ practices often consider some features described in this comments as “waste treatment systems” during the active period of mining, and are therefore excluded from coverage until reclaimed. Nothing in the rule is intended to alter the current application of the waste treatment exclusion. See

summar y response at 7.1

.

7.808 Additional inclusions of mining features previously determined to be non

- jurisdictional would trigger Section 303 requirements for total maximum daily loads (TMDLs). Individual states have the primary obligation of establishing TMDLs, and expanding Section 303 requirements to previously exempted mining features would create considerable burden on these agencies to establish water quality standards. (p. 3)

Agency Response: Current agencies’ practices often consider some features described in this comments as “waste treatment systems” during the active period of mining, and are therefore excluded from coverage until reclaimed. Nothing in the rule is intended to alter the current application of the waste treatment exclusion. See summary response at 7.1

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #14619)

7.809 A. The Agencies Should Clarify and Confirm That Features Associated With On

Site Stormwater and Surface Water Systems Will Remain Exempt in All Cases

Water management features such as temporary and permanent diversion ditches and onsite ponds (e.g., sediment ponds, slurry impoundments) are absolutely c ritical to mining operations within the SVC. Mine operators rely on these features to manage, store, treat, and reuse water within the mine site, often as part of statutorily

- mandated requirements under SMCRA. Given the nature of these requirements, the pu rpose and design of these systems and the dynamic nature of mining activities, these kinds of water management features must remain non

- jurisdictional.

There are numerous changes within the Proposal that might have the unintended effect of altering the jur isdictional status of these features. For instance, we can envision many instances where these features might fall within the broad new definitions of "tributary" and/or "adjacent," and thus be treated as per se jurisdictional. Alternatively, the expanded concept of "significant nexus" set forth in the Proposal would also allow for jurisdictional

lines to be extended to these features on a case

- by

- case or eco

- regional basis. All of these new openings create the need for clarity, within the rule itself , rega rding the non

-Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

528 jurisdictional status of these features. This would logically come by way of clarifications to the waste treatment system exclusion (addressing uncertainty regarding jurisdiction over the various components of stormwater and surface water man agement systems employed at mine sites) 439 and the artificial lakes and ponds exclusion (confirming that the exclusion applies to sediment and bench ponds, slurry impoundments, and other operational ponds). Without these critical clarifications, the Proposal will continue to pose an enormous threat to VMIG, VCEA and the mining industry as a whole. (p. 5

- 6)

Agency Response: The final rule includes a new exclusion in paragraph (b)(6) for stormwater control features constructed to convey, treat, or store stormwater that

are crea ted in dry land. See summary response at 7.4.4. The agencies’ longstanding practice is to view stormwater water control measures that are not built in “waters

of the United States” as non

- jurisdictional. Conversely, the agencies view some waters, such as channelized or piped streams, as jurisdictional currently even where used as part of a stormwater management system. Nothing in the proposed rule was intended to change that practice. Nonetheless, the agencies recognize that the proposed rule brought to light confusion about which stormwater control fea tures are jurisdictional waters and which are not, and agree that it is appropriate to address this confusion by creating a specific exclusion in the final rule for stormwater controls features that are created in dry land.

In addition, current agencies’ p ractices often consider some features described in this comments as “waste treatment systems” during the active period of mining, and are therefore excluded from coverage until reclaimed. Nothing in the rule is intended to alter the current application of the waste treatment exclusion. See summary response at 7.1.

National Mining Association (Doc. #15059)

7.810 C. As Cu r rently Written, the Definitions in the Proposed Rule Could Inappropriately Extend CWA Jurisdiction to On

- Site Water Management Features

at Mine S ites

The Agencies state in the preamble to the proposed rule that they are narrowing, rather than expanding, CWA jurisdiction in comparison to existing regulations. Based on our meetings with EPA and Corps representatives, we understand the Agencies do not intend to define previously non

- jurisdictional on

- site water features as jurisdictional waters in the proposed rule. Such a position is consistent with the scope of the Agencies’ economic analysis, which did not appear to take these on

- site water manageme nt features into account in estimating that the proposed rule will result in “an approximate 3 percent increase in assertion of jurisdiction when compared to 2009

- 2010 field practices.” 440
Nevertheless, certain terms in the proposed rule are defined so broad ly that most on

- site

439 These clarifications are discussed at length in the Nat ional Mining Association 's comments, which VMIG and

VCEA endorse.

440 See U.S. EPA (primary authority) & U.S. Army Corps of Eng’rs (contributing author), “Economic Analysis of Proposed Revised Definition of Waters of the United States,” at 2 (Mar. 2014). NM A also notes that it shares the concerns expressed by both Dr. David Sunding and WAC with respect to the economic analysis, including its failure to fully and accurately evaluate many of the costs associated with the proposed rule.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

529 water management features at mine sites could be erroneously deemed jurisdictional under the proposed language. The very real threat of third party litigation over the application of the rule to such features underscores the critical n eed for clarity concerning

this issue.

First, the Agencies define “tributary” as any water “physically characterized by the presence of a bed and banks and ordinary high water mark . . . which contributes flow, either directly or through another water,” to a traditional navigable water, interstate water, territorial sea, or jurisdictional impoundment. 441 Then the proposal declares tributaries are per se jurisdictional regardless of whether they contribute perennial,

in termittent, or ephemeral flow. 442 And for t he first time, “waters of the United States” explicitly includes ditches that meet th e new definition of tributary. 443 Even “wetlands, lakes, and ponds” that lack a bed, bank, and ordinary high water mark can be tributaries (and hence per se jurisdictional), so long as they “contribute flow, either directly or through another water” to a traditional navigable water, interstate w ater, or territorial

sea. 444 Adding to the confusion, the Agencies have, completely outside this rulemaking

process, re

- defined guidanc e on identifying OHWM. 445 The new OHWM guidance revises the criteria the Corps has historically relied upon for identifying OHWM by replacing longstanding OHWM indicators with new, subjective, criteria and by requiring that only one such criterion be met to determine the existence of OHWM. The OHWM concept is especially important because, historically, existence of an OHWM was used to determine the lateral and upstream limits of Corps’ jurisdiction, i.e. the Corps’ jurisdiction stops where the OHWM is no long er perceptible. 446

It is likely that many, if not most, ditches, as well as certain ponds and other water management features on mine sites, would fall within the definition of “tributary” based solely on contribution of flow, no matter how insubstantial or indirect. Indeed, many on

site water features are permitted under Section 402 to discharge to “waters of the United States” because of such connections. As explained in greater detail below, many such features do not fit neatly into any of the exclusion ca tegories in the proposal without additional clarification, and as such could inappropriately become federal waters under

the new rule.

Second, on

- site waters in the mining industry could constitute “adjacent” jurisdictional waters because the Agencies have broadly defined the term “neighboring” (as used in the definition of “adjacent”) such that every water feature located within the riparian area or floodplain of a traditional navigable water, interstate water, territorial sea, jurisdictional impoundment, or tributary could be deemed a “water of the United States.” 447 Indeed,

441 79 Fed. Reg. at 22,263

. 442 Id. at 22,202.

443 See id. at 22,263.

444 Id.

445 Mersel, M.K., Lichvar, R.W. 2014. A Guide to Ordinary High Water Mark (OHWM) Delineation for Non

Perennial Streams in the Western Mountains, Valleys, and Coast region of the United States. U.S. Army Corps of Engineers, Engineer Research and Development Center, Cold Regions Research and Engineering Laboratory, TR

14

- 13. http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/west_mt_finalsupp_aug2014.pdf.

446 See 51 Fed. Reg. 41206, 41217 (Nov. 13 , 1986).

447 Id. at 22,263.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

530 some water management structures on mine sites are constructed adjacent to jurisdictional waters, but are specifically designed and operated to sever any surface

connection between minin g water inside the permitted area and offsite undisturbed waters, or to limit any surface connection to a permitted NPDES discharge point.

Furthermore, any water feature that has a “shallow subsurface hydrological connection or confined surface hydrologic connection to such a jurisdictional water” would also it self be per se jurisdictional. 448 Given that application of these definitions is left to the “best professi onal judgment” of agency staff, 449 and that therefore agency staff are free to choose, among othe r things, which flood interval to use in applying the definition of “neighboring” and “floodplain,” many on

- site waters that bear little or no connection to downstream “waters of the United States” are likely to be captured. Likewise,

insubstantial subsurf

ace hydrologic connections between water features on mine sites and remote, downstream “waters of the United States” could give rise to claims of CWA jurisdiction, whether by agency personnel or citizen plaintiffs.

Third, even if on

- site waters at mines ar e somehow outside of the definitions of “tributary” or “adjacency,” which are per se jurisdictional, they could nevertheless be deemed jurisdictional “other waters” on a “case

- specific basis” through application of the “significant nex us” test in the propo sed rule. 450 An on

- site water management feature at a mine, either alone or when aggregated with “similarly situated” waters in the same region, could be deemed to significantly affect the chemical, physical, or biological integrity of a traditional navigabl e water, interstate water, or territorial sea so long as it has more than a speculative or insubstantial effect on such a downstream jurisdictional water in the judgment of Agency staff. As an example, biota movement among otherwise

isolated on

- site water management features such as settling ponds and a jurisdictional water may be all that is needed to trigger CWA juri sdiction under this new test. 451
Ironically, even the reduction in sediment load to meet NPDES effluent limitations to below natural background concentrations could be deemed a more than a “speculative or insubstantial” effect on downstream waters due to the improvements made to stream water quality.

These examples show how on

- site waters could become “waters of the United States” under the propo sed rule, and exemplify the need for the rule to include specific language that clarifies that once a water feature is determined to be part of a waste treatment system or another type of excluded water, that water may not be “recaptured” by application of another concept such as “tributary,” “adjacent,” or “other waters.” In other words, the agencies should explicitly state their intent as explained to NMA members that once a water is determined to be excluded, that water may not be deemed a jurisdictional water by any other means. (p. 13

- 15)

448 Id.

449 Id. at 22,209.

450 See id. at 22,263.

451 See id . at 22,214.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

531 Agency Response: The agencies have modified the definitions of “tributary” and “neighboring” in the final rule. See the preamble for further information regarding jurisdiction under (a)(5) and (a)(6).

The final rule also includes a ne w exclusion in paragraph (b)(6) for stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. See summary response at 7.4.4. The agencies’ longstanding practice is to

view stormwater water control measures t hat are not built in “waters of the United

States” as non

-

jurisdictional. Conversely, the agencies view some waters, such as channelized or piped streams, as jurisdictional currently even where used as part of a stormwater management system. Nothing in the proposed rule was intended to change that practice. Nonetheless, the agencies recognize that the proposed rule brought to light confusion about which stormwater control features are jurisdictional waters and which are not, and agree that it is appropriate to address this confusion by creating a specific exclusion in the final rule for stormwater controls features that are created in dry land.

In addition, current agencies’ practices often consider some features described in

this comments as “waste treatmen t systems” during the active period of mining, and are therefore excluded from coverage until reclaimed. Nothing in the rule is intended to alter the current application of the waste treatment exclusion. See summary response at 7.1.

American Petroleum Ins titute (Doc. #15115)

7.811 C. The exclusion for waste treatment systems is incomplete

...API concurs with the comments of the National Association of Homebuilders concerning the Proposed Rule’s lack of an explicit exclusion of green infrastructure from jurisdiction. EPA promotes green infrastructure

– “protecting and restoring natural landscape features and using natural systems (or systems engineered to mimic natural processes) to manage rain water as a resource” as a means to achieve sustainability, of fset effects of climate change, and lower energy demands, among other benefits. And yet the agencies do not explicitly recognize green infrastructure and low impact stormwater management under the waste treatment exclusion in the 2014 Proposed Rule.

Notwit hstanding the waste treatment and artificial pond exclusions, rain gardens, bioswales, and other sustainable stormwater systems may very well be found jurisdictional, requiring permits and compliance with the Clean Water Act requirements. The uncertainty a s to whether green infrastructure is considered jurisdictional is a clear disincentive to employ such practices. API members applying green infrastructure at point

- of

- sale locations such as retail gasoline outlets do not wish to find themselves facing burd ensome permitting and other regulatory requirements in response to their efforts at water conservation and sustainability. API recommends the agencies incorporate into the 2014 Proposed Rule an explicit exemption from jurisdiction for green

infrastructure projects. (p. 31)

Agency Response: With respect to stormwater control features, including green infrastructure, please see the summary response at 7.4.4

7.812 D. The exclusion for artificial lakes or ponds is too narrowClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

532 The 2014 Proposed Rule would exclude from jurisdiction “Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.”125 This exclusion is incomplete. The exclusion could be interpreted to apply on ly to the specific activities identified. There are a number of other purposes, however, for which artificial lakes or ponds are created by excavating and/or diking dry land. Examples in the industrial sector include fire water ponds (to supply water in an emergency), raw water storage ponds, cooling water ponds (which should also be excluded as wastewater treatment units), small ponds for temporarily storing produced water from hydraulic fracturing operations, and storm water retention ponds designed not p rimarily for treatment but to protect against flooding or to serve as water supply storage. These types of industrial ponds, and any other similar industrial ponds, and all ditches and conduits to and from these ponds should be explicitly excluded from jur isdiction under the 2014 Proposed Rule because these ponds have no impact on navigable waters and are necessary for a range of industrial operations. Inflow of surface runoff to these ponds should in no way alter the exclusion. (p. 31

- 32)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water re tention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added coo ling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive.

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

7.813 The Agencies Should Clearly Exempt Waters on Manufacturing Faci lities Used for Commercial Purposes

Even if our suggested revisions to clarify definitions were included in a final rule, the broad language of the proposal still would leave mills subject to unwarranted claims of jurisdiction for water bodies on mill prop erty that are part of the commercial activities on that property. The final rule needs to unequivocally avoid that result, for three reasons:

• First, treating such water bodies as subject to federal jurisdiction and covered by the various requirements of th e CWA would be contrary to decades of agency practice in application of the CWA. It also would be contrary to both the agencies’ stated intentions with respect to the Proposal and the reasonable expectations of those who own and operate industrial and othe r commercial

facilities.

• Second, treating such water bodies as WOTUS would greatly interfere with the operation of industrial and other commercial facilities, imposing excessive costs, regulatory delays, and other constraints. In many cases, literal applic ation of CWA requirements to such a water body could render its use for commercial purposes difficult or impossible. (As just one example, a pond used for flocculation of suspended solids as part of a raw water treatment system might byClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

533 definition violate state narrative water quality standards concerning floating materials or turbidity.)

• Thirdly, and most importantly, treating such water bodies as WOTUS would do little, if anything, to further the goals of the CWA, and it would impose excessive regulatory burdens on both facility operators and CWA permitting and

enforcement authorities.

A prohibition on discharge of fill material into, or dredging fill material out of, a water body without a permit makes no sense when that water body was created for the pur pose of storing water containing suspended solids, or of settling solids out of that water, for example. Water quality standards designed to protect aquatic life in, or to assure the aesthetics of, a natural water body serve no purpose if applied to a wate r body that is part of an industrial operation. Maintaining healthy aquatic organisms in a water body may be the opposite of what is needed in ponds used to store water to be used for commercial purposes, such as for cooling water or for water used to proc ess food or manufacture drugs. If EPA were to claim WOTUS jurisdiction over such ponds, EPA and state agencies would take on a tremendous burden of having to develop new water quality standards that would be appropriate for such uses, as well as issue NPDE S or section 404 permits for discharges into or activities related to maintenance of those waters

— and for little or no regulatory benefit.

As the Supreme Court explained in Utility Air Regulatory Group v. EPA , 134 S. Ct. 2427 (2014), EPA, when interpreting the extent of a statute’s regulatory program, must consider whether a broad interpretation would be consistent with “the Act’s structure and design,” and whether it “would be incompatible with the substance of Congress' regulatory scheme." Id . at 2442

- 43 (citation and quotations marks omitted). The Court has also emphasized, in that case and others, that EPA should not impose regulations where doing so would have only a de minimis regulatory benefit. See id . at 2449. That certainly would be the case if EPA tried to force the square peg of industrial and commercial water bodies into the round whole of a regulatory scheme designed for the protection of natural water bodies.

Accordingly, the agencies should adopt the following additional exemption from the

def inition of WOTUS that would work in tandem with the existing exemptions (as revised or clarified in accordance with our comments below) to clearly exempt waters, the regulation of which can expose our facilities to high compliance costs, while providing li ttle to no water quality benefit.

Add to proposed 33 C.F.R. § 328.3(b) (“The following are not ‘‘waters of the United States’’ notwithstanding whether they meet the terms of paragraphs (a) (1) through (7) of

this definition

— ”) and to similar provisions of other proposed definitions of “waters of

the United States”:

(6) Man

- made or man

- altered bodies of water (including adjacent wetlands) that (i) are used for commercial purposes by a facility that owns or occupies the property on which the water is located and (ii) have no surface discharge to a water of the United States, other than through an NPDES

- permitted outfall or as a result of a chronic or catastrophic rainfall event. As used in this paragraph, “used for commercial purposes” means use in the product ion, distribution, or sale ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

534 goods or services, including both direct uses (such as for log conditioning) and uses that support the commercial facility (such as fire protection or raw water treatment).

The exemption provided in this paragraph does not aff ect the scope, application or implementation of any other exemption provided in this section.

This exemption would assure that those industrial/commercial waters that have a potential direct impact on a WOTUS are regulated, either through limitations in an NPDES permit (individual or general) at the point of discharge, or because the exemption would not extend to waters with an unpermitted discharge. (A water that is not designed to have a discharge to a WOTUS would not lose the exemption, however, if a dis charge occurred because of flooding or because an unusual sustained rainfall event caused the water body to overflow its banks. EPA took a similar approach in its regulation of ponds associated with Concentrated Animal Feeding Operations.) Therefore the ex emption would remain in the event of usual events. (p. 7

- 9)

Agency Response: The final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional

.

7.814 Stormwater

There should be no question that any stormwat er management facilities (such as green infrastructure, storm water retention ponds, etc.) that are part of an industrial stormwater pollution prevention plan required under an NPDES stormwater permit or required by conditions in an NPDES stormwater permit are clearly covered by the waste treatment system exemption. Nonetheless, due to the expansive definitions and other provisions previously discussed, any final rule should specifically state that this is the case to remove any doubt or among all stakehold ers. Due to the concern about ditches (see below), the preamble should clarify ditches that are conveying stormwater to or from stormwater management facilities also are covered by the waste water treatment exemption. (p. 11

- 12)

Agency Response: Please see summary response at 7.4.4.

Coeur Mining, Inc. (Doc. #16162)

7.815 D. Ditches and Conveyances Should Not Be Regulated as Waters of the U.S.

... Mine operators also rely on a broad range of ponds and impoundments (e.g., sediment ponds, heap leach ponds, tailings ponds, slurry impoundments, etc.) to support mining operations. Like ditches and conveyances, mine operators depend on these features to manage, store, treat, and reuse water within the mine site. One of the main purposes of

on

- site ponds and impoundments is to promote the settling of solids. After solid particles settle to the bottom of the water column, those solids are removed for disposal or furtherClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

535 treatment, and the water can be evaporated, reused in mining processes, or discharged from the mine site pursuant to an NPDES permit.

Many on

- site water management features are actually mandated by federal or state law and also are implemented as best management practices within the mining industry. Among other things, on

- site water management features are designed to ensure that, if there are any surface discharges from a mine site into downstream navigable waters, those discharges are covered under an NPDES permit and as such do not cause or contribute to violations of water quality standards. Moreover, to the extent these on

- site water features might pose a risk to groundwater, such features are permitted in accordance with state groundwater protection laws. In fact, many water management features within mine sites are designed to be zero discharge. At those sites, wa ter that is collected and managed is either reused in mining processes or it evaporates; it is not discharged to downstream waters... (p. 5, 6)

Agency Response: Current agencies’ practices often consider some features described in this comments as “waste treatment systems” during the active period of mining, and are therefore excluded from coverage until reclaimed. Nothing in the rule is intended to alter the current application of the waste treatment exclusion. In addition, the final rule has expanded and clarified the typ es of ditches not

considered “waters of the United States.”

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #18016)

7.816 A. The Agencies Should Clarify and Confirm That Features Associated With On

Site Stormwater and Surface Water Syste ms Will Remain Exempt in All Cases

Water management features such as temporary and permanent diversion ditches and onsite ponds (e.g. , sediment ponds, slurry impoundments) are absolutely critical to mining operations within the SVC. Mine operators rely o n these features to manage, store, treat, and reuse water within the mine site, often as part of statutorily

- mandated requirements under SMCRA. Given the nature of these requirements, the purpose and design of these systems and the dynamic nature of mining activities, these kinds of water management features must remain non

- jurisdictional.

There are numerous changes within the Proposal that might have the unintended effect of altering the jurisdictional status of these features. For instance, we can envisio n many instances where these features might fall within the broad new definitions of "tributary" and/or "adjacent," and thus be treated as per se jurisdictional. Alternatively, the expanded concept of "significant nexus" set forth in the Proposal would als o allow for jurisdictional

lines to be extended to these features on a case

- by

- case or eco

- regional basis. All of these new openings create the need for clarity, within the rule itself, regarding the non

jurisdictional status of these features. This would logically come by way of clarifications to the waste treatment system exclusion (addressing uncertainty regarding jurisdiction over the various components of stormwater and surface water management systems employed at mine sites)" and the artificial lakes and ponds exclusion (confirming that the exclusion applies to sediment and bench ponds, slurry impoundments, and other operational ponds). Without these critical clarifications, the Proposal will continue to pose an enormous threat to VMIG, VCEA and the mi ning industry as a whole. (p. 5

- 6)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

536 Agency Response: Current agencies’ practices often consider some features described in this comments as “waste treatment systems” during the active period of mining, and are therefore excluded from coverage until reclaimed. Nothing in the rule is intended to alter the current application of the waste treatment exclusion. In addition, the final rule has expanded and clarified the types of ditches not

considered “waters of the United States.” With respect to stormwater control features, plea se see the summary response at 7.4.4

7.817 C. The Agencies Should Clarify That "Old Works" Are Not Jurisdictional

"Old works" are excavations and depressions left from historic mining activities conducted prior to the passage of the CWA and SMCRA. These features are generally

considered non

-

jurisdictional and are reclaimed according to current SMCRA regulatory requirements. Nearly 80% of all surface mining conducted in Virginia involves remining; thus, these features are encountered at the majority of mine sites in the SVC. Active mining operations in the SVC utilize these "old works"

- pre

- law relic drainage ditches and depressions that have filled with water over time

- for drainage and sediment basins, slurry impoundments and other operational purposes. Mining operations also frequently cross over and impact these features.

For the most part, these "old works" have remained outside of CWA jurisdiction under the exemption for "water

- filled depressions created incidental to construction activity." But the Proposal threatens to erode or eliminate the applicability of this exemption to old works. We urge the Agencies to clarify that old works are not jurisdictional, either categorically or otherwise. (p. 7)

Agency Response: The rule includes several refinements to the exclusion for

w ater

- filled depressions created as a result of certain activities. In addition to construction activity, the agencies have also excluded water

- filled depressions created in dry land incidental to mining activity. This change is consistent with the agencies ’ 1986 and 1988 preambles, which generally excluded pits excavated for obtaining fill, sand or gravel, and there is no need to distinguish between features based on whether they are created by construction or mining activity. A number of

commenters indicat ed that these water

- filled depressions created in dry land are often left on a site after construction or mining activity is complete in order to provide beneficial purposes, such as water retention, recreation, and animal habitat.

For features tha t do not meet these criteria, a jurisdictional determination is necessary to evaluate if the waters meet any of the criteria for coverage under (a)(1)

- (a)(8), regardless of origin. The available science indicates that many man

- made features can have a significant effect on downstream waters and should be evaluated for coverage as “waters of the United States.”

Alameda County Cattlewomen (Doc. #8674)

7.818 Agencies Should Exclude Playa Lakes from Waters of the United States

ACCW request that the agencies create an exclusi on for playa lakes from the category “waters of the United States.” The proposed rule requests comment on the exclusion orClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

537 inclusion of playa lakes within “waters of the United States,” 452 (Proposed Rule at 22216), and ACCW have concluded that due to their i solated nature, these waters fall squarely in the realm of those isolated ponds that were found to be beyond the Corps’ authority in SWANCC and as such should be specifically excluded in the regulation. 453
Due to the fact that these waters are geographically isolated and fall outside the jurisdiction of the CWA, we would also submit that a specific exclusion not include a caveat wrapping playas back into the category of regulated waters through the “interstate waters,” “adjacent waters,” or any other category as s uggested in the proposed rule. 454
Not only would this subcategory exclusion be in line with Supreme Court rulings, it would provide much needed clarity to the regulated public.

The reports cited by EPA conclude that playas are “geographically isolated w etlands” that “...represent the lowest points on the landscape in closed watersheds” and “derive water from rainfall and local runoff (including irrigation water), while very few receive ground

- water inputs (Haukos and Smith 1994).” 455 Another report describes them as “shallow depressional recharge wetland occurring primarily in the High Plains region of the western Great Plains. Each occurs within a closed watershed and, as the term recharge implies, only receives water naturally from precipitati on and its ass ociated runoff.” 456
These characteristics clearly resemble those of the isolated ponds that were considered to be beyond the Corps’ jurisdiction in SWANCC, therefore making it appropriate for clarity and legal purposes for the agencies to specifically exclud e playas from the “waters of the U.S.” regulation.

The agencies also seek comment, data, and information on whether there are subcategories of “other waters” or specific combinations of characteristics that are “likely, in the majority of cases, to perform important functions for an aquatic ecosystem incorporating navigable waters,” and, thus, should be per se jurisdictional (page 22252). Again, the reports cited by EPA provide support for demonstrating that there is separation between playas and navigable waters and that a majority of playas do not meet the criteria to be considered jurisdictional “waters of the U.S.”:

1. There is a clear distinction between geographically isolated wetlands, such as playas, and adjacent wetlands, where the reports specifically state, “The closed watersheds and isolated environmental events (e.g., precipitation,

452 Proposed Rule at 22216, (“In addition, the agencies could determine that other subcategories of waters are not jurisdictional and lack a significant nexus to an (a)(1) through (a)(3) water. Under this option the agencies could conclude that ‘‘other waters’’ such as playa lakes in the Great Plains, even in combination with other playa lakes in a single point of entry watershed, lack a significant nexus and therefor e are not jurisdictional.”).

453 SWANCC , at 163, 168 (describing the waters in question as “seasonal ponds of varying sizes;” and noting that to “rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are no t adjacent to open water”).

454 Proposed Rule at 22216 (“Under this approach, where a playa lake, or other excluded category of water, would be within a category established by paragraphs (a)(1) through (a)(6) of the proposed rule (e.g., the playa is an

inte rstate water or the playa is adjacent to an (a)(1) through (a)(5) water), the playas would be jurisdictional.”).

455 Tiner, Geographically Isolated Wetlands of the United States, Wetlands 23(3): 494

- 516, 496 & 500 (2003).

456 Haukos & Smith, Playa Wetland Regu lation, Wetlands 23 (3): 577

- 589, 577 (Sept. 2003).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

538 runoff) defining playas contributes to spatial and temporal difference in the importance of ecosystem functions even among a djacent wetlands,” 457 and

2. EPA suggests that a k ey criterion for jurisdiction should include “specific combinations of characteristics” that would include or be applicable to “...the majority of cases...” The reports cited by EPA state, “The remaining requirements for declaration of jurisdiction under the C WA apply to just a few playas. Indeed, we believe that <1% of the playas could meet the remaining jurisdictional criteria: interstate location, adjacent or connected to navigable waters, or a significant nexus to interstate commerce.” Clearly <1% is not

in dicative of “...the majority of cases...” and as such provides strong support for EPA to determine that pla yas are not be jurisdictional. 458

It is clear from the science and the Supreme Court’s holding in SWANCC that playa
lakes are the closed, isolated watershe ds that are the prime candidates for exclusion under the “waters of the U.S.” rule. To provide the needed certainty and clarity to the ranchers utilizing these features, ACCW request the agencies categorically exclude playa lakes from the category of “wate rs of the U.S.” (p. 27

- 28)

Agency Response: The agencies at this time are not able to determine that the available science supports that playa lakes as a class have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas. However, to be clear, under the rule, individual waters of the suggested additional subcategories are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) (e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water
or one that is determined on a case

- specific basis to have a significant nexus to a traditional navigable water, interstate water, or the territorial seas). See the Technical Support Document, section I , for a discussion of the SWANCC decision’s

eff ect on jurisdiction.

Illinois Corn Growers Association (Doc. #13996)

7.819 None of the following should be categorically considered jurisdictional waters of the

United States: intermittent and ephemeral tributaries; man

- made ditches, including ditches constructed in dry lands and drain only dry lands or ditches dug in dry lands which do not flow all the time or do not flow into a jurisdictional water; normal farming

and ranchin g water

- related activities such as irrigation which are not regulated under the CWA; wet areas on fields or erosional features on fields; farm ponds; impoundments with any of the foregoing features; and adjacent wetlands or any other waters adjacent to

suc h features (whether in floodplain or riparian areas or otherwise physically proximate with some hydrological connection). (p. 3)

Agency Response: The agencies have expanded and clarified the features not

considered to be “waters of the United States” in the final rule. These include some types of ditches, a rtificially irrigated areas that would revert to dry land should application of water to that area cease, artificial lakes and ponds created in dry land

457 Playa Wetland Regulations, at 579.

458 Id . at 585.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

539 and used primarily for uses such as stock watering, irrigation, s ettling basins, rice growing, or cooling ponds, and erosional features. Nothing in this rule affects the exemptions under 404(f) for normal farming activities. Also, see the preamble for the revised definition of “adjacent.”

The rule definition of “tributa ry” requires that flow must be of sufficient volume, frequency, and duration to create the physical characteristics of bed and banks and an ordinary high water mark. If a water lacks sufficient flow to create such characteristics, it is not considered “tri butary” under this rule. While some commenters expressed concern that a feature that flowed very infrequently could meet the proposed definition of “tributary,” it is the agencies’ judgment that such a feature is not a tributary under the rule because it w ould not form the physical indicators required under the definitions of “ordinary high water mark” and “tributary.” To further emphasize this point, the rule expressly indicates in paragraph (b) that ephemeral reaches that do not meet the definition of tri butary are not “waters of the United States.” As noted by the SAB, and consistent with the scientific literature, tributaries as a group exert strong influence on the chemical, physical, and biological integrity of downstream waters, even though the degree of connectivity is a function of variation in the frequency, duration, magnitude, predictability, and consequences of chemical, physical, and biological processes. See,

e.g., SAB 2014b. These significant effects on traditional navigable waters, interstate waters, and the territorial seas occur even when the tributary is small, intermittent, or ephemeral.

USA Rice Federation (Doc. #13998)

7.820 ...USA Rice Federation requests the agencies to revise the exemptions from the

definition of waters of the U.S. as follows :...

(ii) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, or settling basins , or rice growing ;

(iii) Artificial reflecting pools or swimming pools created by excavat ing and/or diking dry land;

(iv) Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;

(v) Water

- filled depressions created incidental to construction activity;

(vi) Groundwater, including groundwater drai ned through subsurface drainage systems;

and

(vii) Gullies and rills and non

- wetland swales;

and

(viii) Fields and ponds used for growing rice or rice and other crops in rotation and all manmade ditches, canals, and reservoirs used to hold water for, ca rry water to, or remove water from such fields and ponds. (p. 10)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

540 Agency Response: The agencies do not believe it is appropriate to separate out rice growing as stated in the comment. In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” t o “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. In many cases, the other features listed in the c omment would not be regulated due to 404(f) exemptions for normal farming activities.

The Mosiac Company (Doc. #14640)

7.821 ...Mosaic agrees playa lakes should be a subcategory of "Other Waters" that are non

jurisdictional', unless they would fall within a catego ry established by paragraphs (a)(l) through (a)(6) of the proposed rule.

EPA's review of the available scientific literature supports this conclusion for playa lakes. The available scientific literature on playa lakes indicates playas typically occur in cl osed basins. (79 Fed. Reg. at 22,251). The agencies conclude that the scientific literature regarding the physical, chemical, and biological connection of playa lakes to traditional navigable waters is limited and of a tenuous nature (79 Fed. Reg. at 22,25 1). The agencies rely on the scientific literature reviewed in the draft EPA Connectivity Report to make determinations that categories of waterbodies (adjacent waters, tributaries, etc.) have a significant nexus to traditional navigable waters and therefo re warrant jurisdiction by rule. The agencies also state that "Other Waters" require a case

- by

- ease significant nexus determination because the degree of connection and effect on downstream waters are too uncertain to make these waterbodies jurisdictional by rule. The same body of literature indicates that playa lakes are isolated and have little to no connection to downstream waters (79 Fed. Reg. at 22,251

- citing D.A. Haukos, and L.M. Smith, "Past and Future Impacts of Wetland regulations on Playas," Wet lands 23(3):577

- 589 (2003)). The draft EPA Connectivity Report concludes the scientific literature lacks sufficient information to evaluate the type or degree of connectivity or the variability in connectivity for those unidirectional wetlands (of which pl aya lakes are categorized) that lack surface water connections to downstream waters (EPA Connectivity Report page 5

- 40, lines 30

- 35), Thus, the scientific evidence is lacking to claim playa lakes either alone or in combination with other playas have a si gnificant nexus with downstream

waters.

Based on the available literature and the agencies' conclusions, playa lakes should be

determined to be non

-

jurisdictional by rule. A case

- by

- case significant nexus evaluation would not be needed for playa lakes. (p . 27

- 28)

Agency Response: The agencies at this time are not able to determine that the available science supports that playa lakes as a class have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas. However, to be clear, under t he rule, individual waters of the suggested additional subcategories are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) (e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water

or one that is determined on a case

- specific basis to have a significant nexus to a traditional navigable water, interstate water, or the territorial seas). See theClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

541 Technical Support Document, section I , for a discussion of the SWANCC decision’s effect on jurisdictio n.

Irvine Ranch Water District (Doc. #14774)

7.822 C. Water Conveyance Systems and Man

- Made Structures Should Not be Defined As

"Tributaries".

The proposed rule defines "Tributary" as "a water physically, characterized by the presence of a bed and banks and ordi nary high water mark ... which contributes flow, either directly or through another water." The proposed rule then goes further to incorporate all streams, underground flows, wetlands, lakes, ponds, and impoundments into the definition of tributary, if the y contribute any amount of flow to a WOTUS, even if they lack a bed and bank or an ordinary high water mark. The proposed rule specifically expands the definition of tributary to include man

- altered or man

- made water conveyances. Through its use of a broad and sweeping definition of tributary, the proposed rule defines man

- made, non

- stream conveyances as WOTUS and makes them subject to the full spectrum of CWA permitting. Additionally, the rule presumes that all water conveyances have a significant nexus to a WOTUS, which is not true, and uses sweeping language to define these facilities as WOTUS themselves.

... IRWD requests that water conveyance systems be excluded from the definition of WOTUS in the proposed rule, and that the proposed definition of "Tributa ry" be

narrowed. The requirement to include all tributaries by rule, including underground conveyances of a tributary is overreaching. Such a generalized requirement is not based on physical properties, such as an ordinary high water mark and is therefore subject to a wide range of interpretation. In the rule, federal jurisdiction should be specifically limited to the surface expression of a drainage that has connectivity to a downstream receiving water and an ordinary high water mark. (p. 4)

Agency Response: The agencies h ave modified the definition of “tributary” in the

final rule. T he agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving i t to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land.

7.823 The list of excluded categories of waters should be expanded to specifically include:

• Raw, potable, and recycled water storage and water banking facilities, including

reservoirs.

• Raw, potable, and recycled water conveyance systems, including canals, channels

and ditches.

• Underground pipes and culverts for the conveyance of potable, recycled, and

storm water.

• Detention basins excavated in uplands and used for the purpose of detaining storm flows. (p. 6)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agenciesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

542 recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and dr oughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agen cies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Detention and retention basins can play an i mportant role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling. These features are used to

collect and store water which t hen infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger bodies of water. The exclusion also covers water distributary structure s that are built in dry land for water recycling.

With respect to stormwater control features, please see the summary response at

7.4.4

Browns Valley Irrigation District, California (Doc. #14908)

7.824 To better balance the broad interest of the CWA in protecti ng the nation's surface waters while not unduly interfering with the ability of water agencies to provide water, the Browns Valley Irrigation District recommends the following:...

 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. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling

structures create d in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of wat er reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriatel y protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge b asins and percolation ponds built for wastewater recycling. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming

more p revalent tools for water reuse and recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximit y to tributaries or other larger bodies of water. The exclusion also covers water distributary structures that are built in dry land for water recycling.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

543 With respect to stormwater control feature s, please see the summary response at
7.4.4

7.825 Under the propo sed rule, the Browns Valley Irrigation District 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? The Browns Valley Irrigation District recommends water conveyance systems be excluded from the definition of tributary. (p. 2)

Agency Response: The agencies have modified the definition of “tributary” in the

final rule. T he agencies have consistently regulated aqueducts and canals as “water s of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land.

7.826 The Brow ns Valley Irrigation District 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". (p. 3)

Agency Response: See two previous responses.

Georgia Paper & Forest Products Association (Doc. #14924)

7.827 4) The rule should exempt waters that are used at commercial facilities for commercial purposes, whether used directly or indirectly, as explained in greater detail in the AF&PA comment letter. (p. 3)

Agency Response: The agencies disagree that “commercial purposes” should be a basis for exclusion from jurisdiction.

Klamath Water Users Association (Doc. #15063)

7.828 Subsection (b)(1) of the proposed rule excludes “waste treatment systems, including

tr eatment ponds or lagoons, designed to meet the requirements of the Clean Water Act” among other features listed later in the section. While such systems have traditionally been excluded from CWA jurisdiction, we believe that, due to the expansive nature of the proposal, the agencies should also exclude other constructed water management and treatment infrastructure with similar attributes to these waste treatment systems. These facilities could include water reuse and recycling ponds, treatment lagoons, and other appurtenances; artificially constructed wetlands designed to treat agricultural, stormwater or other municipally treated return flows (e.g. “green infrastructure”) that are used and managed to remove nutrients and improve water quality; and artifici ally constructed groundwater recharge basins designed to percolate surface water into groundwater basins. All of these features would revert to dry land if application of water were to cease and, even though they usually contain plants and shrubs known to grow in wetlands, they should be added to the list of features identified in subsection (b) as excluded from the definition of “waters of the U.S.” (p. 4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are e xcluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuseClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

544 and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycl ing, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the ch emical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolati on ponds built for wastewater recycling. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger bodies of water. The exclusion also covers water distributary structures that are built in dry land for water recycling.

With respect to stormwater control features, please see the summary response at

7.4.4

Beet Sugar Development Foundation (Doc. #15368)

7.829 e. Stormwater Exemptions

BSDF encourages the agencies to retain the current and proposed non

- jurisdictional agricultural exemptions in the final rule. The agencies should, however, expand and clarify industrial stormwater exemptions. Althoug h the proposed rule purports to leave intact exemptions for agric ultural stormwater discharges, 459 these exemptions are often inconsistently applied and difficult to predict. The agencies must clarify the exemptions

to ensure BSDF farmers that their stormwat er systems are non

- jurisdictional. Failure to clarify these exemptions will frustrate the efforts of farmers and processing facilities to comply with stormwater regulations. (p. 14

- 15)

Agency Response: See summary response at 12.3

.

Weyerhaeuser Company (Doc. #15392)

7.830 III. Water Features and Treatment Systems on Mill Sites Should Remain Exempted

Some of the proposed changes and definitions could result in claims of Clean Water Act jurisdiction for water features and treatment system components that currently are not

consider ed waters of the U.S. and that are necessary to manage the flow and quality of waters leaving the site or being discharged to jurisdictional waters. This would be an unreasonable and extremely burdensome result, turning the physical features and operations necessary to maintain both the commercial mill processes and the quality of

459 See id . at 22193

– 94 (“Exempted discharges are established under CWA sections 402, 502, and 404 and include Agricultural stormwater discharges . . . . .” ). [ Rapanos ]Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

545 jurisdictional waters receiving permitted discharges into jurisdictional waters themselves that have to meet water quality criteria and standards.

For example, because many forest products mills are located on or near traditional navigable waters, fire and storm water control ponds that are maintained at many mills could, under the proposed rules and definitions for tributaries or other waters, be claimed as within jurisdictional s cope. These should be clearly exempted from jurisdiction. (p. 15)

Agency Response: The final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address so me of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional

. Similarly, for operations that have large wastewater treatment systems utilizing lagoons or ponds that may have been established decades ago the agencies’ jurisdictional interpretations should not change the existing regulatory provision that provides an exemption. EPA should recognize that all po rtions of a wastewater or stormwater treatment system regulated under an NPDES permit are exempt. For example, an NPDES permit for a large land area such as a mill site can cover both wastewater treatment systems and stormwater management systems, includin g conveyances such as ditches and

swales that direct wastewater or stormwater to structural source controls and treatment but which may or may not be specifically listed in an NPDES permit for the site. The proposals that would expand jurisdiction to most ditches as tributaries while severely limiting their exclusion, as discussed previously in these comments, would counter their use on mill sites in protecting operations and downstream water quality. Best Management Practices systems for stormwater may inc lude ditches, settling basins, vegetated swales, infiltration ponds, etc., that are mandated by the terms of the stormwater management plan and/or NPDES permit for the site. It would be unreasonable to deem any of these conveyances jurisdictional waters of the U.S. because they are locations where, for example, maintenance is routinely completed, different Best Management Practices are added, or more active treatment approaches are tried to improve the managed water and protect the receiving water bodies.

E PA should also clarify that zero discharge systems, including land application systems, fall within the exemption. At wood products mills where Timber Products effluent guidelines call for zero discharge, ponds and other systems used to implement the zero discharge requirement clearly are designed to meet the requirements of the Clean Water Act. In some cases land application systems are used to meet the effluent guideline or to avoid an unpermitted discharge, and these typically involve storage/pretreatmen t ponds and acres of spray

- fields. Spray fields may develop wetland

- like areas or have ditches to collect run off. These systems are designed to meet the requirements of the Clean Water Act but not to be jurisdictional waters, and should be recognized as s uch in any final rule. (p. 15

- 16)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water r euseClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

546 and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply

issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructe d detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. The exclusion also covers water distributary structures that are built in dry la nd for water recycling.

With respect to stormwater control features, please see the summary response at

7.4.4

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)

7.831 III. The Agencies Should Clearly Exempt Waters on Manufacturing Facilities Used

fo r Commercial Purposes

The broad language of the Proposal would leave mills subject to unwarranted claims of jurisdiction for water bodies on mill property that are part of the commercial activities on that property. The final rule needs to unequivocally av oid that result, for three reasons:

(1) Treating such water bodies as subject to federal jurisdiction and covered by the various requirements of the CWA would be contrary to decades of agency practice in application of the CWA. It also would be contrary to both the agencies’ stated intentions with respect to the Proposal and the reasonable expectations of those who own and operate industrial and other commercial facilities.

(2) Treating such water bodies as WOTUS would greatly interfere with the operation o f industrial and other commercial facilities, imposing excessive costs, regulatory delays, and other constraints. In many cases, literal application of CWA requirements to such a water body could render its use for commercial purposes difficult or impossib le. (p. 3)

Agency Response: The agencies disagree that “commercial purposes” should be a basis for exclusion from jurisdiction.

The final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional.

Ameri can Forest & Paper Association (Doc. #15420)

7.832 IV. The Agencies Should Clearly Exempt Waters on Manufacturing Facilities Used for Commercial Purposes

Even if the revisions we suggest in Section V., below, were included in a final rule, the broad language of the Proposal still would leave mills subject to unwarranted claims ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

547 jurisdiction for water bodies on mill property that are part of the commercial activities on that property. The final rule needs to unequivocally avoid that result, for three reasons:

( 1) Treating such water bodies as subject to federal jurisdiction and covered by the various requirements of the CWA would be contrary to decades of agency practice in application of the CWA. It also would be contrary to both the agencies’ stated intentions with respect to the Proposal and the reasonable expectations of those who own and operate industrial and other commercial facilities. (2) Treating such water bodies as WOTUS would greatly interfere with the operation of industrial and other commercial

fac ilities, imposing excessive costs, regulatory delays, and other constraints. In many cases, literal application of CWA requirements to such a water body could render its use for commercial purposes difficult or impossible. As just one example, a pond used for flocculation of suspended solids as part of a raw water treatment system might by definition violate state narrative water quality standards concerning floating materials or turbidity.

(3) Most importantly, treating such water bodies as WOTUS would do little, if anything, to further the goals of the CWA, and it would impose excessive regulatory burdens on both facility operators and CWA permitting and enforcement authorities. A prohibition on discharge of fill material into, or dredging fill material ou t of, a water body without a permit makes no sense when that water body was created for the purpose of storing water containing suspended solids, or of settling solids out of that water, for example. Water quality standards designed to protect aquatic life in, or to assure the aesthetics of, a natural water body serve no purpose if applied to a water body that is part of an industrial operation. Maintaining healthy aquatic organisms in a water body may be the opposite of what is needed in ponds used to stor e water to be used for commercial purposes, such as for cooling water, or for water used to process food or manufacture drugs. If EPA were to claim WOTUS jurisdiction over such ponds, EPA and state agencies would take on a tremendous burden of having to de velop new water quality standards that would be appropriate for such uses, as well as issue NPDES or section 404 permits for discharges

into or activities related to maintenance of those waters

— and for little or no regulatory

benefit.

Further, Dr. Michael Josselyn, a member of the Science Advisory Board panel reviewing the Proposal, noted that:

“[T]he Science Report might also discuss how some man

- made features are designed to avoid connectivity in order to protect the environment from toxic or polluted wa ter sources that are present in some of these features. The construction of any facility designed to retain, store, pond, treat, or process water used in industrial processes and to assure that such liquids do not enter the environment

should be excluded f

rom jurisdiction as a matter of rule.” 460

As the Supreme Court explained in Utility Air Regulatory Group v. EPA , 134 S. Ct. 2427 (2014), EPA, when interpreting the extent of a statute’s regulatory program, must

460 September 2, 2014, Memorandum from Dr. Amanda D. Rodewald, to Dr. David Allen, “Comments to the chartered SAB on the adequacy of the Scientific and Technical Basis of the Proposed Rule Titled “Definition of

‘Waters of the United States’ Unde r the Clean Water Act,” at 48.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

548 consider whether a broad interpretation would b e consistent with “the Act’s structure and design,” and whether it “would be incompatible with the substance of Congress' regulatory scheme." Id . at 2442

- 43 (citation and quotations marks omitted). The Court has also emphasized, in that case and others, th at EPA should not impose regulations where doing so would have only a de minimis regulatory benefit. See id . at 2449. That certainly would be the case if EPA tried to force the square peg of industrial and

commercial water bodies into the round hole of a r egulatory scheme designed for the protection of natural water bodies.

Accordingly, the agencies should adopt the following additional exemption from the definition of WOTUS that would work in tandem with the existing exemptions (as

revised or clarified in accordance with our comments in section V., below) to clearly exempt waters, the regulation of which would expose AF&PA members and owners or operators of other industrial or commercial facilities to high compliance costs, while providing little to no wate r quality benefit.

Add to proposed 33 C.F.R. § 328.3(b) (“The following are not ‘‘waters of the United States’’ notwithstanding whether they meet the terms of paragraphs (a) (1) through (7) of this definition

— ”) and to similar provisions of other proposed

definitions of “waters of the United States”:

(6) Man

- made or man

- altered bodies of water (including adjacent wetlands) that

(i) are used for commercial purposes by a facility that owns or occupies the property on which the water is located and (ii) have n o surface discharge to a water of the United States, other than through an NPDES

- permitted outfall or as a result of a chronic or catastrophic rainfall event. As used in this paragraph, “used for commercial purposes” means use in the production, distributi on, or sale of goods or services, including both direct uses (such as for log conditioning) and uses that support the commercial facility (such as fire protection or raw water treatment).

The exemption provided in this paragraph does not affect the scope, application or implementation of any other exemption provided in this section.

This exemption would assure that those industrial/commercial waters that have a potential direct impact on a WOTUS are regulated, either through limitations in an NPDES permit (individual or general) at the point of discharge, or because the exemption would not extend to waters with an unpermitted discharge. A water that is not designed to have a discharge to a WOTUS would not lose the exemption, however, if a discharge

occurred because of flooding or because an unusual sustained rainfall event caused the water body to overflow its banks. EPA took a similar approach in its regulation of ponds associated with Concentrated Animal Feeding Operations. 461 (p. 5

- 7)

Agency Response: The agencies disagree that “commercial purposes” should be a basis for exclusion from jurisdiction.

461 See, e.g., 40 C.F.R. § 412.12(b); 58 Fed. Reg. 7620; EPA Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding Operations, Review Draft, Aug. 6, 1999 pp. 3

- 8, F

- 6, F

- 24.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

549 The final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater

facilities that ma y address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional

.

Packaging Corporation of America (Doc. #15515)

7.833 3) The agencies should clearly exempt waters used at manufacturing facilities for commercial purposes (consistent with AF&PA comments).

Mills that have historically used various water features on their property as part of the

commercial activities on that property should be protected from potential jurisdiction under the rule for several reasons: First, treating such water bodies as subject to federal jurisdiction and covered by the various requirements of the CWA would be contrary to decades of ag ency practice in application of the CWA, which have influenced operational practices of regulated entities. It also would be contrary to both the agencies' stated intentions with respect to the Proposal and the reasonable expectations of those who own

and operate industrial and other commercial facilities. Secondly, treating such water bodies as WOTUS would greatly interfere with the operation of industrial and other commercial facilities, imposing excessive costs, regulatory delays, and other constraints. In many cases, literal application of CWA requirements to such a water body could render its use for commercial purposes difficult or impossible. Thirdly, and most importantly, treating such water bodies as WOTUS would do little, if anything, to further

th e goals of tile CWA, and it would impose excessive regulatory burdens on both facility operators and CWA permitting and enforcement authorities.

Accordingly, the agencies should adopt the following additional exemption from the

definition of WOTUS that wou ld work in tandem with the existing exemptions.

Add to proposed 33 C.F.R. § 328.3(b) ("The following are not "waters of the United States" notwithstanding whether they meet the terms of paragraphs (a) (1) through (7) of this definition

- ") and to similar pr ovisions of other proposed

definitions of "waters of the United States":

(6) Man

- made or man

- altered bodies of water (including adjacent wetlands) that (i) are used for commercial purposes by a facility that owns or occupies the property on which the water is located and (ii) have no surface discharge to a water of the United States, other than through an NPDES

- permitted outfall or as a result of a chronic or catastrophic rainfall event. As used in this paragraph, "used for commercial purposes" means use in the production, distribution, or sale of goods or services, including both direct uses (such as for log conditioning) and uses that support the commercial facility (such as fire protection or raw water treatment).

The exemption provided in this paragraph does not affect the scope, application or implementation of any other exemption provided in this section. (p. 3

- 4)

Agency Response: The agencies disagree that “commercial purposes” should be a basis for exclusion from jurisdiction.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

550 The final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional

.

Dairy Cares (Doc. #16471)

7.834 Dairy Cares requests that the Agencies revise the Proposed Rule in a manner that clearly

excludes man

- made lagoons, ponds, ditches, and the like from being considered jurisdictional even in circumstances where such facilities would be considered to be “adjacent” to a traditional WOTUS. (p. 5)

Agency Response: The final rule has expanded the features not considered

“waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, thes e features may still be considered jurisdictional.

Anderson

- Cottonwood Irrigation District (Doc. #17085)

7.835 ...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 agenc ies to provide water,

Anderson

- Cottonwood Irrigation District 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 wa ter 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. (p. 2)

Agency Response: Paragraph (b)(7) of the rule also clarifies t hat wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. Th e agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. The agencies specifically exclude constructed detention

and retention bas ins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. This exclusion responds to numerous commenters and encourages water reuse and conservation while still approp riately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

Although the agencies have modified the definition of “tributary” in the final rule, the preamble states that the agencies have consistently regulated aque ducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features whenClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

5 51 cre ated in dry land With respect to stormwater control features, please see the summary response at 7.4.4

Hampton Roads Planning District Commission, Virginia (Doc. #9612)

7.836 4. Manmade flood control and drainage conveyance structures should be excluded

from the definition of WOTUS . These structures are constructed to prevent loss of life and protect property from flooding. A jurisdictional designation will result in more costly and time consuming permitting requirements to maintain or expand these structures to mitigate flooding. This may discourage flood control projects and may cause harm to the public, especially in coastal communities. (p. 2)

Agency Response: Please see summary response at 7.4.4.

Lake County Division of Transportation, Lake County, Illinois (Doc. #14743)

7.837 Unde r the proposed rule, stormwater management facilities and green infrastructure are not explicitly exempt. Lake County encourages the use of green infrastructure as a stormwater best management practice (BMP) to lessen flooding and protect water quality by using vegetation, soils, and natural processes. The proposed rule could impact these County maintained sites by requiring Section 404 permits for maintenance activities once the areas are established. This could inadvertently encourage the installation of less desirable stormwater management facilities. The proposed rule should specifically exclude stormwater management facilities and green infrastructure from federal jurisdiction. (p. 1

- 2)

Agency Response: Please see summary response at 7.4.4.

Airlines For America (Doc. #1 5439)

7.838 2. Application of the Proposed Rule

EPA and the Corps repeatedly have assured stakeholders that the proposal does not expand CWA jurisdiction but simply revises agency regulations to reflect the Agencies’ longstanding interpretations. A4A [Airlines F or America] supports this aim. Unfortunately, however, the Proposed Rule appears sweepingly broad in its reach. Moreover, it invites broad interpretation by reason of the subjective standard of “significant nexus” that the Agencies have employed when seeki ng to describe the proper

reach of the Act. 462 Most important, it would operate unpredictably in the context of airports. An example is illustrative.

The Proposed Rule’s treatment of tributaries is expansive. In the abstract, the proposal

would define as a “ tributary” and confer jurisdictional status on virtually any channelized
feature, natural or manmade, that contributes flow. 463 This broad universe of “tributaries”

462 ‘‘‘Significant nexus’ is not its elf a scientific term. The relationship that waters can have to each other and connections downstream that affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas is not an all or n othing situation. The existence of a connection, a nexus, does not by itself establish that it is a ‘significant nexus.’ There is a gradient in the relation of waters to each other, and this is documented in the Report.” 79 Fed. Reg. at 22193, col.2.

463 79 Fed. Reg. at 22263.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

552 could, under the Agencies’ proposal, be interpreted to include any feature that conveys

storm water away from or below an airport because manmade features designed to convey water offsite are engineered to have a “bed and bank” and to “contribute flow.” In the absence of an applicable exclusion, such features would be deemed to be Waters of the

U.S

. In some cases, it appears that certain of these on

- airport features might fit within one of the proposed exclusions. Certain open conveyance ditches, for example, might be excluded as “ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.” 464 Where such ditches also receive flow from groundwater, however, or are not created wholly in uplands, they presumably would fail these tests and would remain categorically jurisdictional tributaries. 465 In those cases, permi t authorization could be required for discharges into a ditch that was never intended as anything more than a simple, engineered conveyance.

Similarly, some detention and retention ponds frequently found within airport collection systems may fall within th e exclusion for “artificial lakes or ponds created by excavating and/or diking dry land and used e xclusively for such purposes as..., settling basins, ....” 466
This exclusion (as well as the existing exclusion for wastewater treatment systems) might not apply, however, where ponds were not expressly designed or are not expressly relied upon for their settling characteristics, but rather are used simply as reposi tories for water that must be removed from runways and taxiways or to provide equalization for off

- site treatment. Ponds in these latter categories are present at the nation’s airports, including at some of the nation’s largest facilities. Rendering such p onds jurisdictional waters would oblige operators to obtain permits for discharges into the ponds, likely necessitating treatment in locations where system designers and current permit writers never intended

for treatment to exist.

Case

- by

- case assessment of “other waters” under the same “significant nexus” test will yield the same patchwork of jurisdictional and non

- jurisdictional findings in the airfield

environment.

Overall, it is reasonable to assume that the Proposed Rule would result in the incidental characterization of individual drainage ditches or detention/retention ponds as WOTUS within airport sites. Such characterizations would vastly and unpredictably reshuffle the systems that airports, airlines, and their permitting authorities have put in p lace to meet the requirements of the Act. By potentially requiring outfalls within the aircraft operations area to be permitted the Proposed Rule would

– inadvertently, we assume

–

464 79 Fed. Reg. at 22269, proposed Section 122.2(b)(3).

465 The proposal’s treatment of “ditches” is equally broad and will allow for similarly disruptive subjective determinations by federal regulators. The Agencies have proposed only two exemptions from the definition of “ditch”: (1) ditches entirely in uplands, that drain only uplands (for their entire length) and have less than perennial flow, and (2) ditches that do not contribute flow. 79 Fed. Reg. at 22263. These exemptions are poorl y worded, however. For example, from a hydrologic perspective, it is unclear what constitutes a ditch entirely in uplands or how a ditch that drains only uplands could ever have perennial flow. Similarly, it is unclear how a ditch that does not

convey any flow could be considered a water in the first instance. In addition, the rule does not address the common occurrence of ditches that are constructed in uplands but which develop spotty wetland characteristics from drainage water pooling within the feature.

466 79 Fed. Reg. at 22269, proposed Section 122.2(b)(5)(ii).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

553 render many choices of treatment technology unavailable. On the other hand, by requiring permits at on

- airfield sites where no treatment can feasibly be placed, the Proposed Rule would make it impossible to meet water quality

- based effluent limitations and, thereby, threaten the sustainability of air service (a result that clearl y is impermissible under the Federal Aviation Act).

3. Proposed Resolution

The Agencies should consider how to avoid these problems in the current rulemaking. Specifically, the Agencies should consider an aviation

- specific exclusion of on

- airport

water bod ies from the definition of WOTUS to avoid the arbitrary and capricious obligation to abandon existing, sufficient, costly pollution control systems where those systems already operate under the authorization of NPDES permits. (p. 5

- 6)

Agency Response: With respect to storm water control features at airport facilities, please see the summary response at 7.4.4

WateReuse Association (Doc. #1349.1)

7.839 Water recycling and reuse remains the one reliable and readily available new source of

fresh water across the nation. The infrastructure and technologies used to recycle and reuse water often incorporate features that could become jurisdictional under the CWA if the new rule defining "waters of the U.S." is not properly promulgated. This issue

deserves additional consideratio n and we must have the opportunity to understand the potential unintended consequences of the proposed rule

- especially at a time when the nation is clearly moving towards utilizing water reuse to help make our communities drought resistant and resilient....

While the proposed rule reiterates the exemption for wastewater treatment facilities under the CWA, water reuse and recycling infrastructure many times will not fall into this category and thus could become jurisdictional. We believe by making water reuse and recycling infrastructure and related facilities jurisdictional under the CWA through this rule, it will substantially hinder our ability to access this major new source of fresh water supply so important to the future of many communities in the U.S. ( p. 1, 3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are no t jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. The exclusion also covers water distributary structures that are built in dry land for water recycling.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

554 C ity of Omaha, Nebraska (Doc. #9733)

7.840 The City of Omaha strongly objects to any expansion of jurisdiction as proposed with this rule change. If the proposed rule passes, we request at a minimum projects needed to comply with NPDES programs and CSO control po licies should be explicitly exempt from falling under the expanded CWA jurisdiction. (p. 2)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4

Las Virgenes

- Triunfo Joint Powers Authority, California (Doc. #13847)

7.841 We wis h to emphasize that the proposed rule should specifically state that the waste treatment exemption extends to recycled water (RW) facilities. Further, the proposed rule should affirm that recycled water reservoirs, along with influent and treated effluent storage ponds are included within the scope of the waste treatment exemption.

Failing to apply the waste treatment exemption to water recycling facilities could lead to regulatory disincentives to produce RW, which is a significant portion of the JPA's wat er portfolio. Last year, nearly 20 percent of the water delivered by the JPA agencies was RW used to irrigate parks, school grounds, highway landscapes, golf courses and

common areas of multi

- family housing developments. Using RW for these purposes

reduces the demand for potable water resources in drought

- stricken California and other western states. EPA should ensure any future rules encourage, rather than impede, the development of this valued resource. (p. 1)

Agency Response: Paragraph (b)(7) of the rule clarifies that w astewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The age ncies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water

reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycl ing as well as groundwater recharge basins and percolation ponds built for wastewater recycling. The exclusion also covers water distributary structures that are built in dry land for water recycling.

County of San Diego, California (Doc. #14782)

7.842 Exemption for water quality treatment features

Any constructed feature built for the purpose of water quality treatment and/or runoff control as required by any federal, state, or local agency, including those with wetland indicators, connectivity and/or within a f loodplain or riparian area, should be specifically defined as being non

-

jurisdictional by rule. In the Federal Register posting, the agencies ’ request comment on which waters should be determined non

- jurisdictional by rule; this is an important example of such. It is imperative that the County, and other local agencies,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

555 be able to construct and maintain water quality treatment facilities to ensure that the design and location of such facilities can remain consistent with the goals of stormwater

management. If these facilities are left undefined, counties and stakeholders would be vulnerable to broad application of federal jurisdiction as these facilities would be open to being considered jurisdictional by local regulators. If these water quality treatment

fe atures are considered jurisdictional, then lengthy permitting and possible costly mitigation would be required to construct and maintain these features.

EXAMPLE: The County implements bridge replacement projects administered by the Federal Highway Administ ration. These bridge replacement projects are commonly located at stream crossings and typically include an increase in impervious surface to bring the bridge up to current standards. The increase in impervious surface area would trigger a requirement to i nstall detention basins or a similar water quality treatment facility pursuant to Clean Water Act Section 402 and the corresponding MS4 permit. In this scenario, the water quality treatment facility must be installed adjacent to the new impervious surface in order to filter the water, which would also be adjacent to the stream. Thus, such a water quality treatment system would likely have direct connectivity, be within the floodplain, and within the riparian area. This example illustrates the importance of insuring that such facilities can be constructed and maintained unimpeded by potentially being considered to impact Waters of the U.S. by a significant nexus, wetland, or other determination. (p. 4)

Agency Response: Please see summary response at 7.4.4.

Public Works, Ora nge County, California (Doc. #14994)

7.843 2. The Agencies should provide specific exemptions:

a. Green infrastructure and other structural Best Management Practices (BMP) required by the CWA for water quality protection should be explicitly exempt for the purpo ses of

maintenance.

b. Roadside ditches, draining only roadway runoff, should be explicitly exempt.

c. Constructed flood control channels, excavated in upland, should be considered part of the MS4 and explicitly exempted. Many such channels have been const ructed in portions of Orange County (Stanley W. Trimble, Journal of Historical Geography, 29, 3 (2003)

422

- 444 Historical hydrographic and hydrologic changes in the San Diego creek watershed, Newport Bay, California) and have been inappropriately regulated as waters of the U.S. rather than part of the MS4, requiring Section 401/404 certifications/permits and being subject to Section 303 requirements (See 1.e above regarding Peters Canyon Channel).

d. Routine maintenance of ditches should be explicitly exemp t pursuant to CWA 3 404(f)(l)(b) and (c). To this end, the County supports the recommendation made by others to define the term "Fully Constructed Stormwater Control Measures" ("SCMs") as

follows: "SCMs are human

- made structures, devices, measures or Best Management Practices (BMPs) that are constructed for the purpose of water quality treatment, stormwater volume reduction, stormwater rate control, flood control, stormwater conveyance, or any combination of these purposes." The County further supportsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

556 modi fications to the Rule's Preamble that defines an exclusion for stormwater that is as clear as that for agriculture. (p. 3)

Agency Response: The final rule include exclusions relevant to this comment, including exclusions for certain ditches and stormwater control features built in dry

land . S ee summary response at 7.4.4.

National Association of Clean Water Agencies (Doc. #15505)

7.844 Water Reuse Exemption Needed

The draft rule does not sufficiently address the issue of recycled water and reuse projects, in particular those using constructed treatment wetlands to treat millions of gallons of water a day. Under the draft rule these treatment wetlands could be declared WOTUS, potentially stifling development of or shutting down innovative recycled water projects.

Lawmakers and the public alike are recognizing the integral role water reuse will play in regions facing severe drought, as demonstrated by California’s recently passed ballot measure Water Quality, Supply and Infrastructure Act of 2014, which provides more than $7 bill ion for water infrastructure projects including investments in reuse. Clarifying the exemption of these projects designed to reuse treated effluent will ensure that jurisdictional questions will not impede their development and help to provide a

sustainabl e water supply where it is most critical. There are multiple ways to clarify a regulatory exemption of these recycled water projects, which is currently unclear. Manmade features, like treatment wetlands, which are components of the water reuse

process, co uld be easily included as a component of the waste treatment exemption with additional language. A separate exclusion specifically for water reuse and recycling elements would also work. (p. 3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycli ng structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize t he importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water

reuse and conservation whil e still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as gr oundwater recharge basins and percolation ponds built for wastewater recycling. The exclusion also covers water distributary structures that are built in dry land for water recycling.

7.845 EPA and USACE also have the opportunity to clarify the applicability of the CWA to water transfers in this rulemaking. Transferring water from one basin to another is a tool used by clean water utilities; it is often an essential element of water resource management and warrants close attention as to the jurisdiction of the CW A. In defining WOTUS, EPA and the USACE should be clear that jurisdiction does not extend to waters transferred from one water body to another without intervening municipal, industrial, or agricultural use, for purposes of water utility operations and main tenance.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

557 Also, the final definition of WOTUS will have a direct impact on wastewater utilities and other entities engaged in construction, maintenance, repair, and expansion of water infrastructure. The rule should incorporate generally accepted practices to assure protection of WOTUS, while minimizing regulatory burden and allowing routine operation and maintenance of wastewater and stormwater conveyances. For wastewater utilities, the ability to engage in timely construction and other maintenance and impr ovement projects has significant implications for infrastructure function, public health, local economies, and community quality of life. It is critical that jurisdictional changes not delay wastewater system maintenance, repair, and construction activitie s. (p. 4)

Agency Response: Regarding water transfers, please see summary response at
12.3

. With respect to stormwater control features, please see the summary response

at 7.4.4

South Orange County Wastewater Authority, California (Doc. #15619)

7.846 ... the proposed rule lacks suf ficient clarity to protect all elements of recycled water production and use as fully within the waste treatment exemption. As a recycled water producer, SOCWA is keenly aware of the importance of recycled water as a source of supply to our agencies and ci ties. The expansion of jurisdictional waters under the proposed rule could complicate and interfere with wastewater treatment processes and

wit h new water reuse opportunities . Integral to recycled water projects is a clear expression from USEPA that recycl ed water and appurtenant facilities for the reuse of water are within the scope of the waste treatment exception. For sample, in our area, south Orange County, California it may become important in the very near future, and in light of the ongoing drought conditions to use spreading grounds or basins to facilitate groundwater replenishment. We support the request of the CASA organization that the proposed rule should expressly include treatment ponds/lagoons, spreading grounds/basins , constructed treatment wetlands, effluent storage reservoirs and recycled water storage facilities within the scope of the waste treatment exception. All of these of

facilities are vital to the reuse of the water resources in California.

We are concerned that revisions to the c ategory of "adjacent wetland" to include "all adjacent waters" will bring in areas of stored water and water treatment systems regardless of whether any sort of nexus or hydraulic connection is shown, and without consideration of separations by berms or le vees. We do not believe it is the Agencies' intent to regulate water reuse facilities, retention and detention basins, groundwater recharge basins, constructed wetlands, and similar water and wastewater infrastructure that is often simply located adjacent to "waters of the United States." For agencies such as SOCWA, the reuse and treatment of wastewater is a valuable resource to improve overall water supply and the "all adjacent waters" language will raise issues for projects as to whether existing or plann ed facilities are now jurisdictional waters . This action will bring less clarity to public agencies and inhibit their development of water reuse projects. Public agencies will be impaired by additional and unnecessary requirements, regulations and permitt ing associated with jurisdictional waters, including the potential for exposure to penalties and potential third party liability for effluent violations. This will set up a strong disincentive to sustainable water supply development and reduce the ability ofClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

558 clean water agencies to act with innovation to put water resources to immediate drought relieving uses. We request that EPA consider a similar approach to that given to artificial lakes and ponds used for stock water, irrigation and other "such purposes " to include "existing, planned and new features of wastewater treatment systems using spreading grounds/recharge basins" and "wastewater and recycled water storage and conveyance systems". We also suggest that in order to alleviate the water crisis for Ca lifornia innovative water reuse/storage systems that put to beneficial reuse treated brackish, impaired/urban waters and wastewater resources should be considered for that exemption. (p. 1

- 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water

reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as grou ndwater recharge basins and percolation ponds built for wastewater recycling. The exclusion also covers water distributary structures that are built in dry land for water recycling.

Orange County Sanitation District, California (Doc. #16335.1)

7.847 In order to address the historic drought conditions currently plaguing the western states, water and wastewater agencies must rely on a full suite of flexible options to provide potable and recycled water supplies for a variety of ongoing uses. Thus, OCSD opposes

any direct or indirect regulatory impacts on water recycling, water storage, and other mechanisms that playa part in recycled water infrastructure and processes as a result of the proposed rule.

As noted above, we appreciate the explicit acknowledgement and co dification of the waste treatment exemption in the proposed rule. However, we believe it is important that the proposed rule expressly states that the waste treatment exemption extends to recycled water facilities. California water recycling projects often depend upon artificially created wetlands and storage ponds to treat millions of gallons of water a day. If these features are considered waters of the U.S. and are excluded from the waste treatment exemption, they could theoretically no longer be used as an integral component of the waste treatment systems, forcing the closure of important recycled water projects critical to California's water supply. Moreover, a lack of clarity on this issue may stall or halt the development of recycled water projects at a time when recycling is needed the most to address climate resiliency priorities.

Because recycled water demand is variable with time of day and season, recycling water agencies maintain reservoirs or storage basins/ponds to store recycled water during

p eriods of low usage in anticipation of peak demands. These features are an essentialClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

559 component of the recycled water process and integral to an agency's ability to continue reliably producing and supplying recycled water in many instances. The proposed rul e should affirm that such reservoirs along with influent and treated effluent storage ponds are within the scope of the waste treatment exemption, consistent with the regulatory definition of "complete waste treatment system" found in existing federal regu lations. 467
As the proposed rule and existing practice acknowledge, waste treatment systems designed to meet the requirements of the Clean Water Act are not waters of the U.S., and treatment systems should include any facilities, including storage ponds and basins, related not only to traditional treatment facilities and processes, but also to the production of recycled water.

In the alternative, recycled water facilities and features (including storage ponds, basins, artificially created wetlands, recycled w ater reservoirs and other features associated with water recycling) should be expressly exempted as part of the specifically identified features that are not considered waters of the U.S. within the proposed rule. In this case, recycled water facilities wo uld be treated similar to artificial lakes, ponds, swimming pools, ornamental waters, and groundwater, which are specifically identified and expressly exempted . In either case, whether recycled water facilities are considered part

of the waste treatment ex emption or have their own specifically identified exemption, it is essential that the proposed rule not interfere with recycled water production and treatment by making those features jurisdictional.

The failure to include an explicit statement in the fina l rule would leave open the question

of whether these features are considered "waters of the U.S." Such a situation could lead to regulatory disincentives to produce recycled water in California and other western states, compounding a water scarcity situat ion that is already dire. Pending and adopted federal and state legislation to address the impacts of our historic drought contain a number of approaches to encourage recycled water projects. Transforming components of the recycled water process (including integral systems such as storage ponds) into jurisdictional waters would completely undercut efforts to address the drought and have resoundingly negative water supply ramifications across the state. We concur with the comments of Representative Grace Nap olitano (D

- CA) delivered to the House Committee on Transportation and Infrastructure Committee at the hearing held on June 11, 2014, as she questioned why in light of the severe drought in California, USEPA would not expressly include recycled water within the scope of the waste treatment exception . Given the drought and dire need to develop recycled water facilities in the arid west, clarification that excludes recycled water facilities from additional federal regulation is absolutely vital. (p. 2

- 3)

Agency Response: Para graph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse

467 See 40 C.F.R. §35.2005(b)(12), defining "complete waste treatment system" as "all the treatment works necessary to meet the requirements of title III of the [CWA], involving . .. the ultimate di sposal, including recycling or reuse, of the treated wastewater and residues which result from the treatment process." (Emphasis added); see also 40 C.F.R. §35.2005(b}(49) [definition of "treatment works" includes "storage of treated wastewater in land

tre atment systems before land application" among other things]Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

560 and recycling are not jurisdictio nal when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous c ommenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and

retention basins creat ed in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. The exclusion also covers water distributary structures that are built in dry land for water recycling.

7.848 The Proposed A mendments to What is Considered an "Adjacent Water" Must be

Reexamined to Consider Wastewater Treatment Processes

Many wastewater treatment processes, including man

- made spreading basins, are located near or even "adjacent" to rivers and tributaries that h ave been (or under the proposed rule, would be) designated as waters of the U.S. and may be located in the riparian or floodplain areas of these rivers. Because the proposed rule defines "adjacency" and includes the incorporation of waters within the flood plain or riparian area of a designated water of the U.S. as also being a jurisdictional water (see section 328.3(c)(2)

- (4), FR 22263), this could lead to an interpretation that such spreading basins and artificial storage ponds are jurisdictional.

Specifi cally, the proposed rule would revise the current category of an "adjacent wetland" to include all "adjacent waters." (FR 22206) As a result, numerous treatment ponds, recycled water reservoirs, and spreading grounds/basins across California could become j urisdictional, creating a significant problem and interference with existing wastewater treatment processes . For example, under the proposed rule, the Montebello Forebay spreading grounds in Southern California would appear to become jurisdictional. Under existing rules, regulations and case law, a waterbody is considered a water of the U.S. if it is a wetland adjacent to a water of the U.S. In contrast, under the proposed rule, all waterbodies (of many types) adjacent to a water of the U.S. could be consi dered themselves waters of the U.S., regardless of whether any sort of nexus or hydraulic connection has been shown and without any consideration of whether a berm or levee separates them. Under the proposed rule, a significant nexus appears to be assumed, as it states "...even in cases where a hydrologic connection may not exist, there are other important considerations .. .that result in a significant nexus between the adjacent wetlands or waters and the nearby "waters of the United States" and (a)(1) thr ough (a)(3) waters." (79 FR 22244) As one seeming justification for this expanded interpretation, the proposed rule states that "many major species that prefer habitats at the interface of wetland and stream ecosystems remain able to utilize both habitats despite the presence of such a berm." (Id. at 22245) This use of species preference and behavior to justify incorporation of a water with no proven hydrologic connection as a water of the U.S. closely resembles the previously invalidated migratory bird rul e. As such, terrestrial species preference is not an acceptable basis for the assertion of jurisdiction.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

561 If these "adjacent" wastewater and recycled water facilities, including spreading grounds, are defined to be within the jurisdiction of the CWA, it would adversely impact water and wastewater agencies' ability to augment groundwater supplies and to effectively provide wastewater treatment services . The plethora of additional and unnecessary requirements, regulations, and permitting associated with ma king these areas into jurisdictional waters, including but not limited to the procurement of an NPDES permit, assigning designated uses, exposure to penalties and potential third party liability for effluent violations, and impairment of the ability to ope rate and maintain these areas, would erect new mandates with no benefit to the surrounding ecosystems and waterbodies. Such a result represents an extreme disincentive to sustainable water supply development and a significant impairment of wastewater agenc ies' ability to protect public health and safety through

innovative and effective wastewater treatment.

Within the proposed rule, there are two specific exemptions that could potentially address this issue. Pursuant to section 328.3(b)(5)(i) and 122.2(b)(5 )(i) 468 , a spreading ground could fall under the definition of "[a]rtificially irrigated areas that would revert to upland should application of irrigation water to that area cease" (79 FR 22263 and 22268) Spreading grounds utilized by wastewater treatment facilities are generally artificially created and might not otherwise exist aside from the application of wastewater effluent to the area. However, without being explicitly stated, it is not clear enough that this definition would apply to upland wastewate r spreading grounds. Similarly, pursuant to section 328.3(b)(5)(ii) and 122.2(b(5)(ii), wastewater and recycled water ponds and spreading grounds could fall under an expanded definition of "[a]rtificial lakes or ponds created by excavating and/or diking dr y land and used exclusively for such purposes as stock water, irrigation, settling basins, or rice growing." (79 FR 22263 and 22268) The word "such" seems to indicate that these are merely examples, not an exhaustive list, and thus spreading grounds utiliz ed in conjunction with and/or as part of the overall wastewater treatment process could fall under this exclusion. However, without specific references within these provisions to treatment ponds and spreading grounds, OCSD is very concerned that these faci lities could become jurisdictional and create significant problems for agencies attempting to protect public health and the environment. This, we would request the explicit inclusion of the terms such as "spreading grounds" and "wastewater and recycled wat er storage," within this section. (p. 4

- 6)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used fo r water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate suppl y issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

468 All references are to Part 328 and Part 122, however the language suggestions contained herein similarly apply to other regulatory sections that have the potential to impact wastewater entities, including Part 230 (79 FR 22268

- 22269), Part 232 (79 FR 22269

- 22270), and Part 401 (79 FR 22273

- 22274).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

562 The agencies specifically exclude c onstructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. The exclusion also covers water distributary structures that are built in dry land for water recycling.

Sacramento Stormwater Quality Partnership (Doc. #17005)

7.849 With respect to stormwater related facilities, this expanded definition of "adjacent" could result in structural BMPs, green infrastructure projects, and other multi

- p urpose benefit projects being classified as a WOTUS if such projects are installed in a floodplain &riparian zone, or are otherwise determined to be "adjacent" to a traditional navigable water. As indicated previously, such facilities are installed so that stormwater agencies can reduce pollutants to the maximum extent practical, and many such facilities provide for multiple benefits to the environment. For example, green infrastructure projects improve water quality, enhance recreational uses, and help to infiltrate water to groundwater basins for future municipal and domestic uses. However, under the Proposed Rule, such projects could become jurisdictional. Thus, facilities designed and implemented to comply with NPDES MS4 permit requirements would be subj ect to further regulation as a WOTUS. Such a result undermines the intent and purpose of such facilities and the stormwater program in general, and exposes municipalities to litigation.

Other types of facilities that could be impacted are spreading grounds . In California, many municipal agencies operate infiltration basins that are commonly referred to as "spreading grounds." Generally, spreading grounds consist of "spreading" recycled water, imported water, stormwater, and other water across basins for inf iltration. These spreading grounds recharge aquifers, and are an essential part of California's efforts to manage its water resources. If they fall within' the "adjacent" category, these spreading grounds could become a WOTUS and become subject to extensiv e regulation, under the

CWA.

Accordingly, it is necessary to specifically exclude stormwater structural BMPs, spreading grounds, and other beneficial projects such as green infrastructure from the definition of "adjacent." ... (p. 5)

Agency Response: Paragraph (b)(7) of th e rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when construct ed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and enco urages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land use d for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. The exclusion also covers water distributary structures that are built in dry land for water recycling.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

563 With respect to stormwater contr ol features, please see the summary response at

7.4.4

Central Arizona Project (Doc. #3267)

7.850 We have heard in conversations with our federal partners that it was not the intention of the EPA nor the Corps of Engineers to include closed public water supply sy stems such as CAP in the new rule. I am writing in the hope that you will confirm this intention in writing. This matter has become a major issue in the State of Arizona, and we hope that this is an unnecessary concern. It is also our intention to submit f ormal comments to the rulemaking...

...It is with this background on the importance of the CAP to the citizens of Arizona that we seek clarification on your agencies' intention to include our closed water canal system in the proposed rulemaking. Furthermore, w e strongly believe that an appropriate remedy would be to include closed aqueduct or diversion canals used in the operation of a public water supply system in the exclusions listed with the rule. The attached fact sheet further details how tins might be ac complished. (p. 1, 3)

Agency Response: T he agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in p ractice asserted jurisdiction over these types of features when created in dry

land.

7.851 To address the concerns of the Central Arizona Project, and other major western water supply projects, in the expansion of the definition through the U.S. Army Corps of

En gineers, we propose to amend 33 C.F.R. § 328.3(b)(5) by inserting the following exclusion, ‘ (viii) Aqueducts or diversion canals used in the operation of a public water supply system. ’ (p. 6)

Agency Response: See previous response.

Clearwater Watershed District et al (Doc. #9560.1)

7.852 ...the level of significance of water's nexus to traditionally navigable waters, interstate waters, and the territorial seas varies across a wide spectrum. We encourage the agencies to consider the scientific evidence available on common discharges and work to clearly define as exempt those discharge activities that, either due to their minimal level of impact directly to navigable water's integrity, or due to the relation of connectivity between the impacted water and navigable waters, do not degra de the integrity of waters of the United States. (p. 4)

Agency Response: The rule reflects the judgment of the agencies when balancing the science, the statute, the Supreme Court opinions, the agencies’ expertise, and the regulatory goals of providing clarity to the public while protecting the environment and public health. The rule excludes certain waters and features over which the agencies have generally not asserted CWA jurisdiction, as well as groundwater, which the agencies have never interpreted to be a “water of the United States” under the CWA. Codifying these longstanding practices supports the agencies’ goals of providing greater clarity, certainty, and predictability for the regulated publicClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

564 and regulators, and makes rule implementation clear and practical. The f inal rule provides clear exclusions for certain types of ditches. The final rule also expressly excludes stormwater control features created in dry land and certain wastewater recycling structures created in dry land. Waters and features that are excluded under paragraph (b) of the rule cannot be determined to be jurisdictional under any of the categories in the rule under paragraph (a).

Northwest Colorado Council of Governments Water Quality/ Quantity Committee (Doc. #10187)

7.853 In both the existing rule and p roposed rule, wastewater treatment systems, including treatment ponds and lagoons are not considered “waters of the United States.” This exemption is only listed for wastewater treatment, which means that water treatment systems could fall under CWA jurisd iction. Local governments and water providers own and manage treatment ponds and lagoons that are uses for drinking water treatment and stormwater management. QQ recommends including all water treatment systems, not just wastewater, under this exemption. ( p. 7)

Agency Response: Many commenters asked for an exclusion for drinking water supply systems, similar to exclusions for wastewater treatment and stormwater control. Because water supply networks can be both complex in structure and extensive in size, involving the use of tributaries as well as a variety of other features, the agencies determined that a complete exclusion of such systems is not appropriate. However, not all portions of these systems would be regulated under the final rule. Some portions of these systems are tributaries, or even traditional navigable waters, and so would be regulated under this rule for the same reasons that all such waters are subject to regulation as “waters of the United States.” At the same time, there are some portions of these syste ms that would be excluded from regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, constructed lakes and ponds created in dry land).

Southeast Florida Utility Council (Doc. #11879)

7.854 Under these definition categories, constructed storage ponds which are part of a stormwater/wastewater system (i.e. stormwater or wastewater treatment ponds, storage ponds) in Florida could be considered navi gable waters because of Florida’s flat landscape and broad floodplains or under the significant nexus theory. SEFLUC is concerned that storage ponds located within the traditional navigable water’s floodplain would be included as navigable waters and requi re a NPDES permit for discharges that may occur under flood conditions. Similarly, SEFLUC is concerned that reclaimed water reuse with a direct discharge to stormwater ponds which already requires an NPDES permit; may be required to meet water quality stan dards at the point of discharge, thus making the practice cost prohibitive.

SEFLUC is aware of the existing exemption for “waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.”, however, the limiting language that the system be “designed to meet the requirements of the Clean Water Act” raises significant concerns as to whether these storage ponds willClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

565 actually be exempt from the navigable waters definition. The written guidance on the

scop e of this exemption inadequately addresses the issue. Therefore, we recommend the exemption should be revised to specifically include, at a minimum, the following: water storage facilities; aquifer storage and recovery facilities; stormwater management

sys tems that are permitted under federal or authorized state programs; reclaimed water storage and conveyance systems; and man

- made wetlands that are permitted as part of waste water treatment system. Without these revisions, navigable waters may be interpret ed to include a number of water systems that are clearly outside the scope of the intended definition and utility operations will suffer significant adverse impacts. (p. 3)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4 .4

. The rule also includes exclusions for wastewater recycling structures created in dry land and waste treatment systems. See discussion of those exclusions earlier in this Compendium.

Duke Energy (Doc. #13029)

7.855 Implementation

... Stipulate that on

- site wate rs at electrical generation sites that were not previously

determined as “waters of the Unites States” remain non

- jurisdictional through all decommissioning processes. (p. 13)

Agency Response: This rule does not affect the implementation process for determining jurisdictio nal determinations in the field. Typically, these determinations are valid for five years, absent significant new information.

Florida Power & Light Company (Doc. #13615)

7.856 Utilities also use man

- made intake and supply canals that deliver water to power plant sites, essentially via open

- top pipeline. These are not natural systems as water supply can disappear within hours if the river authority limits or stops flow. These features, which can be miles long, are not currently classified as WOTUS and serve a similar function to irrigation canals. Additionally, man

- man discharge canals convey treated water offsite and may be considered distinct from a waste treatment system; however, they are not WOTUS. It will be important that the final rule clarify that the se features are non

jurisdictional.

To that end, we further recommend the following regulatory revision to 33 CFR 328.3(b), 469 with additions in underlined bold

. (b) The following are not "waters of th e United States" notwithstanding whether they meet the te rms of paragraphs (a)( I) through (7) of this section

-

... (6) Cooling water impoundments, canals, and water conveyances, including,

but not limited to:

(i) Cooling water impoundments and reserve cooling water ponds;

469 As proposed at 79 Federal Register 22263 (April 2 1, 20 14).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

566 (ii) Intake and supply canals, including open

- top canals, pipelines, and other

man

- made sources;

(iii) Discharge canals, including those used for heat dissipation.

The final rule should expressly confirm that explicit exemptions such as the waste treatment systems exemption and an exemption for r eserve coo ling water impoundments, canals, and water conveyances apply regard less of the jurisdictional language for WOTUS. We also recommend that the agencies make clear that any man

- made structures

that are not created from WOTUS or whose construction pre

- dates the CWA, should not be considered jurisdictional. (p. 6

- 7)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively fo r one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not be come so because of another incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify t hat cooling ponds created in dry land are excluded. In contrast, the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and movin g it to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land.

Calleguas Municipal Water District, Thousand Oaks, California (Doc. #13959)

7.857 As with any other water provider, in order to achiev e our water quality and reliability goals, Calleguas 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 designat ion. 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 surfac e waters while not unduly interfering with the ability of water agencies to provide water, Calleguas recommends the following:

 Components of water conveyance systems, including ditches, should be excluded from the proposed definition of “waters of the Unit ed States.”

 Water infrastructure, such as terminal reservoirs, recycled water facilities, groundwater recharge basins, stormwater retention basins, and constructed wetlands, adjacent to “waters of the United States” should be excluded from jurisdiction und er the proposed rule.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

567 Calleguas 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”. (p. 1

- 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdi ctional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numero us commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins c reated in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects.

Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to c ollect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.

The exclusion also cove rs water distributary structures that are built in dry land for water recycling. These features often connect or carry flow to other water recycling structures, for example a channel or canal that carries water to a percolation pond. The agencies have not considered these water distributary systems jurisdictional where they do not have surface connections back into, and contribute flow to, “waters of the United States.” In contrast, the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry land. With respect to stormwater control features, please see the summary response at 7.4.4

.

Southern Company (Doc. #14134)

7.858 The primary function of stormwater retention impoundments, or other green infrastructure related features, e.g., bioswales, is to detain stormwater an d facilitate pollutant removal through settling and biological uptake. EPA should clarify that conveyances of any kind leading into such structures designed to protect water quality are not jurisdictional. Such clarification is needed to avoid added confus ion and regulatory burdens imposed upon environmentally optimal features, many of which are required in the first place for compliance with the CWA. (p. 48

- 49)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

568 Agency Response: Please see previous response. With regard to green infrastructure, see summary response at 7.4.4

.

Southern Nevada Water Authority (Doc. #14580)

7.859 Dry lake beds, or playas, are common in the desert southwest. These geographic low areas may occasionally contain water from seasonal rain events, and are the terminal location for water from ephemeral washes . By their nature, they do not contribute flow to traditional WOTUS. SNWA recommends the Proposed Ru1e clarify that isolated dry lake beds (playas), and their associated tributaries, are not jurisdictional, even if they are located in a basin that may cont ain other jurisdictional waters. (p. 2)

Agency Response: The agencies at this time are not able to determine that the available science supports that playa lakes as a class have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas . However, to be clear, under the rule, individual waters of the suggested additional subcategories are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) (e.g., a playa lake that is an interstate water, a kettle lake that i s an adjacent water

or one that is determined on a case

- specific basis to have a significant nexus to a traditional navigable water, interstate water, or the territorial seas). See the Technical Support Document, section I , for a discussion of the SWANCC d ecision’s effect on jurisdiction.

7.860 The EPA and Corps did not propose any changes to the existing exclusion from jurisdiction for waste treatment systems designed consistent with the requirements of the CWA. However, SNWA is concerned the broad definition of "tributaries" under the Proposed Rule could result in components of public water supply and wastewater treatment systems, such as man

- made ditches, canals, and off

- river storage ponds, becoming subject to regulation as WOTUS. This additional regulation wo uld be unnecessarily burdensome, as the delivery of water through these systems is already subject to CWA permitting. SNWA recommends ditches, canals, ponds, and other man

made features used in the operation of public water treatment and supply and wastewa ter treatment and discharge systems be specifically excluded from jurisdiction as WOTUS. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supp lies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters no ted the growing interest in and commitment to water recycling and reuse projects.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

569 Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation pon ds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often loc ated in close proximity to tributaries or other larger

bodies of water.

The exclusion also covers water distributary structures that are built in dry land for water recycling. These features often connect or carry flow to other water recycling
structures, for example a channel or canal that carries water to a percolation pond. The agencies have not considered these water distributary systems jurisdictional where they do not have surface connections back into, and contribute flow to,

“waters of the United S tates.” In contrast, the agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in pr actice asserted jurisdiction over these types of features when created in dry land.

Central Arizona Water Conservation District (Doc. #14585)

7.861 CAWCD stresses that the concerns expressed in this comment letter are not specific to the CAP [Central Arizona Pro ject]. Many public water supply systems with features similar to the CAP have raised like concerns over the impact of the proposed rulemaking. Therefore, any solution that addresses the concerns of CAWCD should be broad enough to exempt both the CAP and ot her public water supply systems. With that understanding in mind, CAWCD proposes the following language be inserted into the definition of WOTUS proposed in 33 C.F.R. § 328.3(b)(5), 40 C.F.R. § 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, part 3 00 App. E, 302.3, and 401.11:

"(viii) Aqueducts or diversion canals used in the operation of a public water supply system and related conveyance, storage, and distribution facilities."

Alternatively, CAWCD requests that the Agencies provide a specific ex emption from the rulemaking for the CAP system and related conveyance, storage, and distribution facilities. CAWCD believes that such a categorical or specific exclusion is consistent with the intentions of the Agencies in promulgating the proposed rule an d consistent with the EPA’s Water Transfers Rule. (p. 6

- 7)

Agency Response: The agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it t o another. The agencies have not in practice asserted jurisdiction over these types of features when created in dry

land.

The Clean Energy Group Waters Initiative (Doc. #14616)

7.862 ...it is unclear if man

- made intake canals that respectively deliver water to power sites would be regulated as WOTUS...if the rule is not clarified. These are not natural systems as water supply can disappear within hours if the river authority limits or stops flow, butClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

570 some are unlikely to be considered part of a waste treatment sys tem. Thus, it will be important that the final rule clarify that these features are exempted from WOTUS. Furthermore, any waste treatment system that has a discharge to a WOTUS is already regulated through limits on the receiving waters. (p. 2)

Agency Response: The agencie s have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction ove r these types of features when created in dry

land. The rule makes no substantive change to the existing exclusion for waste treatment systems designed consistent with the requirements of the CWA.

Metropolitan Water District of Southern California (Doc. #1 4637)

7.863 Metropolitan understands that the Agencies do not intend the proposed rule to change the regulation of water supply facilities and infrastructure, including groundwater basins, or the regulatory status of water transfers. (See 79 Fed. Reg. at 22189, 22193,22199, 22218). Metropolitan fully supports the Agencies' intent not to change the regulation of water supply facilities and infrastructure because it is concerned about the proposed rule's potential expansion of CWA jurisdiction beyond existing guida nce. However, the proposed rule defines a "tributary" for the first time and states that a tributary "can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in paragraph (b)(3) or (4) .... " (79 Fed. Reg. 22263). Under this definition, some of the water

- related features in the arid west that make up Metropolitan's drinking water infrastructure could be interpreted

to be tributaries of a water of the United St ates. Accordingly, Metropolitan requests that the Agencies provide clear exclusions for water delivery facilities and infrastructure, including groundwater basins. Otherwise, if sections of Metropolitan's drinking water

infrastructure were to be considered waters of the United States, expensive, complex, and

time

- consuming CWA permits could be required, except if the water transfers rule applied.

... In order to meet water supply needs, western water utilities and providers such as Metropolitan must make substantial infrastructure investments. Such investments include new or expanded storage reservoirs; reuse facilities; treatment plants; and water

col lection, delivery, and distribution pipelines or other types of conveyances. Many of these facilities will, of necessity, be in somewhat close proximity to the types of "waters" described in the proposed rule. It is essential that these critical activities , which may be undertaken in direct response to emergency conditions related to drought, fire, or post

fire damage, do not unnecessarily trigger a federal nexus and the associated lengthy and costly permitting procedures. (p. 4

- 5, 10)

Agency Response: The final rule has mo dified the definition of “tributary” and “neighboring” for the purposes of determining adjacency. In addition, the final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dryClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

571 land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional.

Santa Clara Valley Water District (Doc. #14776)

7.864 C. Artificial Ditches, Canals, or Channels Used For Public Water Supply Operations Should Be Excluded

The District operates several ditches, channels, and canals whose function is to deliver

water from one artific ial water

- supply management facility to another. These ditches, channels, and canals are artificial, in whole or in part. The Proposed Rule excludes numerous artificial features: "[a]rtificially irrigated areas," "[a]rtificial lakes or ponds," "[a]rtificia l reflecting pools or swimming pools," "[s]mall ornamental waters," and "depressions created incidental to construction." (79 Fed.Reg. 22263.) These artificial features are excepted in apparent recognition of the fact that, but for human control, they

woul d not have water in them. The same principle applies to the type of artificial ditches, canals, and channels operated by the District: They generally operate via human intervention, and would not have water flowing through them but for control

mechanisms. The artificial segments of ditches, channels, and canals used for water

supply operations should likewise be excluded.

To put it another way, surface channels that function as pipelines should not be distinguished from pipelines. The Proposed Rule seems to recognize, for instance, that a sewer is not a tributary. An artificial channel used to move water from place to place in substantially the same manner as a pipeline is in all relevant respects no different than a sewer, and should not be classified as a water. Congress could not have intended sewers

or sewer

- equivalent channels to be waters of the United States.

A new sub

- sub

- paragraph to the Proposed Rule should be added to (b )(5) as follows: "(viii) Artificial segments of ditches

, channels

, or canals used for public water supply operations." (p. 7

- 8)

Agency Response: Many commenters asked for an exclusion for drinking water supply systems, similar to exclusions for wastewater treatment and stormwater control. Because water supply networks can be both comple x in structure and extensive in size, involving the use of tributaries as well as a variety of other features, the agencies determined that a complete exclusion of such systems is not appropriate. However, not all portions of these systems would be regulat ed under the final rule. Some portions of these systems are tributaries, or even traditional navigable waters, and so would be regulated under this rule for the same reasons that all such waters are subject to regulation as “waters of the United States.” At the same time, there are some portions of these systems that would be excluded from regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not flow into a navigable water, interstate water or territorial sea) or (4)(B)(artifici al, constructed lakes and ponds created in dry land).

7.865 D. Other Artificial Water Treatment And Supply Facilities Should Be Excluded

The District operates artificial treatment ponds, lagoons, wetlands, bioswales, water supply storage facilities, aquifer st orage and recovery facilities, water conveyance facilities, stormwater management and capture facilities (municipal separate storm sewerClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

572 systems or MS4 ), and recycled water storage and conveyance facilities. These artificial water treatment and supply fac ilities should be excluded from the Proposed Rule for two

reasons.

First, they further the goals and policies of the CWA. In the CWA, Congress's policy was to respect and protect State

- level efforts to manage water use: It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources ... (33 U.S.C. § 1251(b).)

In apparent recognition of this policy, the Proposed Rule already would exclude "[w]aste treatment systems ... designed to meet the requirements of the Clean Water Act." (79 Fed. Reg. 22263.) But the other facilities designed by local p ublic agencies to ensure safe; clean, and reliable water services also further this policy. They, too, should be excluded from the Proposed Rule.

Second, these facilities are artificial, and should be excluded just as other artificial

facilities are. As no ted above, the Proposed Rule would already exempt numerous artificial features, in apparent recognition of the fact that, but for human intervention, they would not have water in them. Under the same principle, artificial water

- supply

facilities should als o be excluded.

Another new sub

- sub

- paragraph to the Proposed Rule should be added to (b )(5) as

follows: "(ix) Artificial facilities used for water treatment or supply by State or local public agencies." (p. 8)

Agency Response: The final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or

i mpounding, waters of the United States, these features may still be considered jurisdictional. With regard to stormwater management facilities, see summary response 7.4.4.

The Fertilizer Institute (Doc. #14915)

7.866 ...many water management systems at both minin g and industrial sites have features that could be included under the definition of WOTUS as proposed. On

- site containment and treatment ponds, diversion and conveyance ditches, closed loop systems, and mine pits that are critical to both mining and indust rial processes, and are used to manage, contain,

and treat on

- site waters generally must comply with existing state and federal environmental standards. These existing standards can include the CWA, Surface Mining Control and Reclamation Action, and the Mi ne Safety and Health Act. Additionally, if and when water leaves a mine site, or industrial facility, it is generally subject to CWA

Section 402 standards. Because these various water containment and treatment features are already subject to both state and federal permitting requirements, including them under the definition of WOTUS would not provide any additional environmental benefit, would increase compliance costs, and may create competing permitting regimes, thus creating confusing and/or conflicting compliance obligations. Accordingly, EPA shouldClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

573 specifically exempt from the definition of WOTUS any water management systems or treatment ponds, impoundments, or systems at mining and/or industrial facilities that are already subject to environmental perm itting requirements or have a CWA permitted outfall for discharge. (p. 4

- 5)

Agency Response: As stated in the SMCRA statute, SMCRA “shall not be deemed in any way to repeal or supersede any portion of the Federal Water Pollution

Control Act and no control or treatment unde r this subsection shall in any way be less than that required under the Federal Water Pollution Control Act.” The agencies believe that the two statutes have complementary, but differing, mandates and therefore is not appropriate to add a specific exclusio n for features authorized

under SMCRA.

Current agencies’ practices often consider some features described in this comments as “waste treatment systems” during the active period of mining, and are therefore excluded from coverage until reclaimed. Nothing i n the rule is intended to alter the current application of the waste treatment exclusion.

With respect to stormwater control features, please see the summary response at

7.4.4.

Salt River Project Agricultural and Power District and the Salt River Valley Wa ter Users Association (Doc. #14928)

7.867 2. Explicitly exclude all man

- made stormwater retention and groundwater recharge basins from the proposed definition of Waters of the U.S. Although artificial lakes or ponds created by excavating and/or diking dry land a nd used exclusively for such purposes as "settling" are proposed to be excluded from the proposed definition, it is unclear from the preamble whether the agencies intend to exclude basins that directly discharge to the subsurface. (p. 16)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdi ctional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numero us commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins c reated in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects.

Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to c ollect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dryClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

574 land, they are also often located in close proximity to tributaries or other larger

bodies of water.

With respect to stormwa ter control features, please see the summary response at

7.4.4.

7.868 3. Explicitly exclude all non

- tidal roadside, stormwater, and agricultural ditches from the proposed definition of tributary. Moreover, the agencies should reiterate in the final rule

that M S4s are not Waters of the U.S. (p. 17)

Agency Response: The final rule clarifies and expands the ditches not considered

“Waters of the United States.” With respect to stormwater control features (e.g. those that part of MS4s), please see the summary response at 7.4.4

.

7.869 4. E xclude all isolated impoundments, including upland connecting tributaries, from the proposed definition of Waters of the U.S. When all upland flow is terminated at a flood

control structure or diverted for beneficial uses and there is no discernible surfac e water connection to §328.3 (a)(l) through (a)(3) waters, CWA jurisdiction is not warranted. (p. 17)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not tr eated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition respo nds to many requests to clarify that cooling ponds created in dry land are excluded.

Nucor Corp. (Doc. #14963)

7.870 ...many manufacturing facilities utilize on

- site stormwater retention systems and closed

loop process water recycling systems, including retention ponds, which may be located in floodplains. Under the proposed rule and the far

- reaching extension of jurisdiction to "adjacent" waters located in floodplains and "other waters" (i.e., waters that can be aggregated with other "similarly situated" waters), the Agencies likely could consider many of these systems categorically "waters of the United States" despite the fact that they are entirely man

- made and/or not originally located in jurisdictional waters. Such systems should be categorically excluded from jurisdiction under any new version of the definition of "waters of the United States". (p. 13)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supp lies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages waterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

575 reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters no ted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation pon ds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often loc ated in close proximity to tributaries or other larger

bodies of water.

With respect to stormwater control features, please see the summary response at

7.4.4

.

7.871 ...the proposed rule provides that "adjacent waters" (presumably including "other waters") will be considered jurisdictional even if separated from "(a)(l) through (a)(3)" waters "even where the two waters may be separated by features that are not jurisdictional, such as uplands, berms, roads, levees and similar features ." 79 Fed. Reg.

22210. In other words, where stormwater and process water ditches and other water management features such as retention ponds are located in a flood plain separated from an "(a)(l) through (a)(3)" jurisdictional water, such features will be "waters of the United

States". This provision has the effect of including isolated waters (similar to those at issue

in SWANCC ) as jurisdictional waters, even though they are intentionally isolated from the "(a)(l) through (a)(3)" water. When applied to industrial process water systems and stormwater management systems, the proposed rule stretches jurisdiction "beyond parody". The rule should be revised to exclude such waters. (p. 13)

Agency Response: The agencies have modified the definition of “neighboring” with respect to evaluating adjacency in the final rule. The final rule also states that waters excluded in paragraph (b) are not considered “waters of the United States”, even where they otherwise meet the terms of paragraphs (a)( 4 )

- (a)(8). With respect to stormwater control features, please see the summary response at 7.4.4

.

American Public Power Association (Doc. #15008)

7.872 ...The proposed rule will impose federal CWA regulation on features that are constructed and used pursuant to other federal and state regulatory programs. For example, power plants t hat do not use “once through” cooling often have onsite tempering ponds to assist in the transfer of waste heat to the atmosphere in order to meet CWA National Pollutant Discharge Elimination System (NPDES) permit limits on thermal shock to navigable

water s. While similar enclosures within a wastewater treatment plant are specifically excluded from the definition of a WOTUS, that same exemption does not appear to apply to power plant structures within the fence

- line. (p. 6)

Agency Response: In the exclusion for artificial l akes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

576 ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recre ation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to th e list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds created in dry land are excluded.

Utility Water Act Group (Doc. #15016)

7.873 VI. Other Im portant Water Management Systems Lawfully Created to Serve Power Plants and Other Industrial Facilities Also Should Be Exempted from the WOTUS

Definition.

Power plants also rely on raw water and other service water ponds that store rain water,

stormwater r unoff, and water withdrawn from other waterbodies for eventual use by the facility. In some cases, the pond is large enough to allow sedimentation to occur, effectively cleaning the water for later use. Some facilities may discharge treated effluent

to suc h ponds for re

- use, in which case the same permitting issues noted above may pertain.

For those ponds that do not qualify as waste treatment systems, classifying this type of

man

- made water feature as a WOTUS could have at least four important and costly

i mpacts.

The first stems from EPA’s § 316(b) regulations, which impose extensive data collection, technology, and monitoring requirements for “cooling water intake structures” that

withdraw water from waters of the United States. The second concerns the nee d for an NPDES permit to transfer water from a source water to the raw or service water. Although EPA’s NPDES rules include a provision exempting the transfer of water from one water of the United States to another without any intervening industrial, munic ipal or commercial use, the U.S. District Court for the Southern District of New York recently remanded and partially vacated that rule. 470 While the district court’s decision is under appeal, the threat remains real. The third concerns the need for § 404 pe rmits for any maintenance or expansion of the pond or impoundment. And the fourth concerns safety implications for service water ponds.

Imposing § 316(b) requirements on cooling water withdrawals from ponds and reservoirs

purpose

- built to supply water for steam electric plants, requiring NPDES permits to transfer water into such ponds or reservoirs, or requiring § 404 permits to perform maintenance activities on such ponds would impose enormous costs without any corresponding environmental benefit. Consider this example (one of many). A UWAG member constructed a raw water reservoir to serve its steam electric generating station.

The reservoir is man

- made, purpose

- built, and inextricably linked to power plant operations. Raw water from the river intake is pum ped to the reservoir for storage; raw water from the reservoir is then pumped to the power station for use as cooling water.

470 Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA , 8 F. Supp. 3d 500, 567 567 (S.D.N.Y. 2014).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

577 Cooling water intake structures (“CWISs”) are located at both the river and the reservoir. While the company has been planning for § 316(b) requirements to apply to the river CWIS, it has not done the same for the reservoir CWIS, because historically the raw water reservoir has not been deemed to be a WOTUS. Under the Proposed Rule, the reservoir may be deemed a WOTUS under the Agenci es’ expansive definitions of “tributary,” “adjacent” or “other waters.” If the WOTUS rule is finalized as proposed and the reservoir is deemed to be a WOTUS, then the reservoir CWIS will be subject to the § 316(b) rule, and discharges of raw water to or wi thdrawals from the reservoir, as well as maintenance of the reservoir, will be subject to other CWA regulatory programs (e.g., §§ 402 and 404 permitting, § 401 water quality certification, water quality standards and TMDLs).

Classifying service water ponds as jurisdictional could create similarly significant burdens and create safety concerns. For example, a UWAG member has a nuclear generating facility with a service water pond that withdraws water from an adjacent reservoir. To prevent biofouling and redu ce corrosion of safety

- related components, aggressive chemical treatment of service water in this pond is required. If this pond were classified as a WOTUS, and the use of treatment chemicals was restricted, such restrictions could impact safety systems at the facility.

To avoid substantial and unnecessary impacts of this kind, UWAG requests that the Agencies add an exclusion to clarify that ponds and impoundments used for raw water storage and transfer are not WOTUS, in order to allow their continued use without creating significant issues. (p. 86

- 88)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of an other incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds cre ated in dry land are excluded.

Edison Electric Institute (Doc. #15032)

7.874 Water withdrawn from a water of the U.S. for industrial use should be excluded from itself being a water of the U.S., even if impounded or conveyed via a ditch or other open

air conveya nce. Likewise, ditches that discharge to a water of the U.S. already are regulated as point sources, within the existing statutory and regulatory provisions governing such sources, and should not themselves be waters of the U.S. 471 With these changes, it wil l be clearer that the agencies are not regulating the movement of

471 If ditches were waters of the U.S., water flowing from the ditch to lake or river or stream would be a water transfer that is not subject to NPDES permit regulations, reducing water quality protection. 40 C.F.R § 122.3(i). This

resul t is not consistent with the CWA.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

578 stormwater runoff, cooling water, and process water, and electric utilities can continue to move water about their facilities using open, man

- made surface conveyance systems.

Utilities also will be able to continue to rely on nationwide permits such as Nationwide Permits 12 and 51 to conduct activities, such as installation and maintenance of transmission lines and renewable energy facilities. (p. 29)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. T he change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to the list o f uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds created in dry land are excluded. With regard to stormwater, see summary response 7.4.4.

How ever, the agencies disagree that these exclusions should be broadened to the point that they encompass all industrial uses or all features that contain waters subject to regulation as point sources.

Chino Basin Watermaster (Doc. #15046)

7.875 We appreciate EPA’s position that the Proposed Rule does not change the existing regulatory exclusion for wastewater treatment systems that have been designed to meet the requirements of the CWA. Nonetheless, Section (b) of the Proposed Rule (40 C.F.R. § 328.3(b)) does not e xpressly exclude water reuse and recycling infrastructure that is part of wastewater treatment systems from CWA jurisdiction. To unequivocally provide that such infrastructure is excluded from the definition of “waters of the United States,”

the facilities that must be clearly listed in the wastewater system exclusion include: water reuse and recycling ponds, water treatment lagoons, and other appurtenances; artificially constructed wetlands designed to treat agricultural or stormwater runoff (e.g., “green infrastructure”) that can be used to manage the removal of sediment, nutrients and improve water quality for water reuse and recycling; and artificially constructed groundwater recharge basins designed to percolate surface water into groundwater basins

for reuse and recycling. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply

issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed de tention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basinsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

579 and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling

. These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of w ater.

With respect to stormwater control features, please see the summary response at

7.4.4

.

7.876 ...we therefore request that: (1) the categorical exclusion for wastewater systems specified in Section (b) of the proposed regulation be expanded to expressly incl ude water reuse and recycling ponds, water treatment lagoons, artificially constructed wetlands designed to treat agricultural or stormwater runoff, and artificially constructed groundwater recharge basins...(p. 3)

Agency Response: See response above.

San Diego County Water Authority, California (Doc. #15089)

7.877 The proposed rule presumes that all impoundments of waters of the United States are jurisdictional. The San Diego Region has a number of local man

- made reservoirs, constructed for the purpose of drinking water supply th at are owned, operated and maintained by the water utility and have no downstream discharges. A number of the reservoirs simply act as forebays to surface water treatment plants, storing imported water or other local supplies that are delivered by pipeline to the reservoirs. They are isolated or lack any significant nexus to waters of the United States in the watershed

where the reservoir is located. Because the reservoirs store water that is delivered from waters of the United States, in the proposed rule they are presumed to be jurisdictional. This definition in the rule is based on case law related to reservoirs that are integral to a stream or river system where the court found that once a water is of national concern, diversion or storage does not elimi nate it from national concern. This approach was inappropriately expanded to include all impoundments without regard to the exclusion of isolated waters as described by the court in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers ( SWANNC),531 U.S 159(2001), or application of the significant nexus test in Rapanos v. United States, 547 U.S. 715(2006). We ask that a specific exclusion be added to the rule for water supply impoundments that are isolated or have no significant nexus to w aters of the United States within the watershed where the impoundment is located. (p. 3)

Agency Response: The rule states that all impoundments of waters otherwise

identified as waters of the United States are considered “waters of the United States”, unless otherwise excl uded. However, the final rule has expanded the

features not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

580 7.878 The proposed rule would significantly expand Federal Clean Water Act jurisdiction over recycled water projects that are currently regulated by the States. Under the proposed definition, all waters “adjacent” to waters of the Unite d States will be presumed to be jurisdictional having a substantial impact on the chemical, biological or physical integrity of traditional navigable waters or interstate waters. “Adjacent” is further defined to mean bordering or neighboring, which include s waters located within the riparian area, where surface or subsurface hydrology influences the ecological processes, or a flood plain. The State of California has been targeting long

- term groundwater storage and recharge projects to create more sustainable supplies. The proposed definition, if strictly interpreted, would include percolation basins used to recharge the groundwater for potable reuse and many recycled water impoundments. Given the local geology in the San Diego Region (narrow, shall ow alluvial deposits make up most groundwater basins) the enhancement of natural groundwater supplies using man

- made conveyances, such as infiltration basins and injection wells would likely need to be co

- located near a riparian corridor or flood plain. Th e expansion of the rule to cover “bordering or neighboring” waters located within the riparian area, if interpreted broadly, would make groundwater storage and recharge projects, including recharge with recycled water, in the region largely infeasible due to interference with jurisdictional waters.

In California, recycled water groundwater recharge projects and recycled water impoundments are currently permitted under extensive and comprehensive State regulations. These include criteria for groundwater rech arge and non

- potable reuse of recycled water that balance the need for water supply development with water quality standards that support other beneficial uses. Recycled water projects constitute a significant source of water supply for the State of Califo rnia. The San Diego region currently has several recycled water groundwater recharge projects being proposed to augment our local water supplies and reduce our dependence on imported water. California issues waste discharge permits or water reclamation cri teria that are consistent with state criteria and other basin plan objectives. The local recycled water supplies have not historically been considered waters of the United States.

The expansion of the definition to include all waters, and not just wetlands , as addressed by the Supreme Court, could bring many of the recycled water uses that have been effectively regulated by California for over 50 years into the definition of waters of the United States. An additional regulatory layer requiring National Poll utant Discharge Elimination System permits will add requirements that are not necessary and will interfere with the State’s ability to maintain use of existing water sources and develop additional critical water supplies. We recommend that specific exclusi ons be added to the rule for recycled water recharge basins, recycled water impoundments, and aquifer storage and recharge projects. (p. 3

- 4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. Thi s new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particu larly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages waterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

581 reuse and conservation while still appropriately protecting the chemical, phys ical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds bui lt for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are oft en created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.

7.879 As a water supplier, we encourage the use of watershed

- based water quality solutions

– including natural treatment systems, constructed w etlands and green infrastructure

– to protect the chemical, biological and physical integrity of our source water supplies. Our local lakes and reservoirs that are waters of the United States are impacted by nutrient loadings from urban and agricultural ru noff. Implementation of integrated solutions in conjunction with the dischargers on the watershed has been impeded by the prescriptive requirements of the Clean Water Act. Natural treatment facilities can improve water quality and have the added benefit of providing interim habitat, but would not necessarily be designed specifically for that purpose. In addition, routine mechanical maintenance, including the periodic removal of excess plant growth or sediment, would be required.

The proposed rule could be i nterpreted to include natural treatment systems, constructed wetlands, and green infrastructure as waters of the United States. This will be a deterrent to using natural watershed based treatment systems for management of nutrients and improving downstream water quality. If these constructed natural treatment systems are independently considered a water of the United States, then it would add an extra layer of regulatory requirements that would create permitting delays and barriers to implementation, limit the ability to maintain the facilities, and would reduce the viability of natural treatment systems as cost effective solutions to improve water quality. We ask that a specific exclusion be added to the rule for natural treatment systems, constructed

wetla nds, and green infrastructure. (p. 4

- 5)

Agency Response: With respect to stormwater control features (e.g., green infrastructure), please see the summary response at 7.4.4.

7.880 The proposed rule also says that “a tributary, including wetlands can be man

- altered or

man

- made wat er and includes waters such as rivers, streams, lakes, ponds, impoundments, canals and ditches.” It also says that certain types of ditches are not waters of the United States. It is unclear if water supply and wastewater infrastructure, storm drain system s, concrete channels or other water

- related infrastructure would be considered waters of the United States. Including these man

- made aqueducts, canals, channels, pipelines or storm drains as waters of the United States would interfere with the ability to o perate and maintain water infrastructure. We ask that the rule specificallyClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

582 exclude man

- made aqueducts, canals, channels, pipelines and storm drains from the definition of waters of the United States. (p. 5)

Agency Response: The agencies have consistently regulated aqueduc ts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these types of features when create d in dry

land. The rule makes no substantive change to the existing exclusion for waste treatment systems designed consistent with the requirements of the CWA. With respect to stormwater control features, please see the summary response at 7.4.4.

Luminant (Doc. #15100)

7.881 The Proposed Rule should be revised to ensure that previously non

- jurisdictional water

features remain excluded from the definition of "waters of the United States." Under the proposed rule, water features commonly found on power plant and mi ne sites which are currently not considered jurisdictional could be included in the definition of "waters of the United States." Ditches, on

- site ponds, impoundments, and other water management features are integral to power generation and mining operation s, and are used to manage

on

- site waters in an environmentally sound and frequently statutorily mandated manner. (p. 3)

Agency Response: The final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificia l ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdiction al.

This rule does not affect the implementation process for determining jurisdictional determinations in the field. Typically, these determinations are valid for five years, absent significant new information.

7.882 Luminant urges that many water features such as ditches, other conveyances and facilities that are designed, constructed and used to manage, store and treat water that are currently excluded from CWA jurisdiction should be clearly excluded in any final rule. At steam electric generating facilities an d surface mines, these conveyances and facilities (including canals, swales, containment basins and ponds, cooling ponds, spill diversion ditches, raw water and service water ponds, wastewater collection/treatment ponds, intake and discharge canals, constr uction ponds, and roadside and other ditches) are engineered and constructed specifically to protect waters of the U.S. by maintaining separation. Maintenance is routinely performed on these features in addition to those associated with coal piles, waste d isposal areas; building or equipment pads; roads or rail spurs; and above ground pipelines. These conveyances are typically a part of a larger treatment system designed to prevent spills and other contamination from reaching waters

of the U.S. and are ofte n authorized under a federal

- or state

- implemented NPDES program. Such conveyances may also be part of engineered safety systems used to insure the integrity of dikes and dams. If these manmade features become subject to regulation

as waters of the U.S. th e resulting requirements for permitting routine maintenance,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

583 cleanout, or emergency repairs could require significant time and actually compromise the environments they were engineered (and often required by other federal and/or state rules) to protect. (p . 6

- 7)

Agency Response: See previous response.

Northern Colorado Water Conservancy District, Berthoud, Colorado (Doc. # 15114)

7.883 EPA's Water Transfers Rule . The preamble to the proposed rule states, multiple times, that "[t]he agencies propose ... no change to the regulatory status of water transfers.” 472
EPA's Water Transfers Rule excludes any "activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use" from the National Polluta nt Discharge Elimination System (NPDES) created by the CWA. 473 The Water Transfers Rule does not define "waters of the United States," although EPA relied on one of the definitions the agencies propose to change. 474

The proposed rule should be revised to expre ssly state in the text of the Code of Federal Regulations (ill addition to the Preamble) that it does not change the regulatory status of water transfers. (p. 10)

Agency Response: Regarding water transfers, please see summary response at
12.3

.

Bella Vista Water District, R edding, California (Doc. #15149)

7.884 Water conveyance systems, including ditches, should be excluded from the proposed definition of “waters of the United States.” (p. 2)

Agency Response: See the preamble and Technical Support Document for a

discussion of the ditches excluded from being considered “waters of the United

States.”

7.885 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. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbat e supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

472 79 Fed. Reg. at 22 189; see also id. at 22193, 22199 and 222 17.

473 40 C.F.R. § 122.3(i) ("Water transfer means an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use . . .”).

474 See 40 C FR § 122.2. 73 Fed. Reg. 33

, 69 7, at 33,699, note 2 (June 13, 2008).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

584 The agencies specifically ex clude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or othe r larger

bodies of water.

With respect to stormwater control features, please see the summary response at

7.4.4

.

7.886 Bella Vista Water District facilities include backwash settling/water recycling ponds, water storage tank overflow ditches, and emergency disc harge ditches at its wells. Bella Vista Water District requests water infrastructure facilities (including construction, maintenance, and operation) adjacent to traditionally navigable waters be excluded from the proposed definition of "waters of the Unite d States." (p. 2)

Agency Response: The agencies have modified the final definition of “neighboring” with regard to adjacency. The final rule has expanded the features

not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, an d stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, waters of the United States, these features may still be considered jurisdictional.

Associa tion of Metropolitan Water Agencies et al. (Doc. #15157)

7.887 Infrastructure used to transport and store water are critical components of the systems used to provide drinking water, process wastewater, and manage storm water. With limited exceptions, current an d past practice under the CWA has been not to treat water system infrastructure as subject to WOTUS restrictions when carrying out normal operational and maintenance activities. In particular, water supply and treatment operations and maintenance activitie s conducted by a water utility within or associated with water supply conveyances, storage, and treatment facilities should be specifically exempted from WOTUS restrictions.

Similarly, the final rule should retain the current exclusion (33 CFR 328.3(a) and 40 CFR 122.2) for “waste treatment systems” and it should be clear that that the exclusions include residual management systems associated with drinking water treatment. The current rulemaking also presents an opportunity to clarify that release of drinki ng water or wastewater to dry land, such as through a sanitary sewer overflow (SSO), do not constitute a discharge to a jurisdictional water body.

Water infrastructure facilities encompass a broad range of structures and activities, ranging from green infr astructure (e.g., infiltration trenches, swales, artificial wetlands, etc.) to ground

- water recharge basins and percolation ponds, constructed wetlands, andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

585 ground

- water wells, water recycling facilities, and stormwater retention basins. The final

rule exc lusion for water infrastructure should clearly and explicitly encompass the full breadth of water utility operations.

This request for an exclusion, which is consistent with historical practice, speaks directly to the rulemaking goal of a clear definition of WOTUS and consistent implementation of the CWA. For situations that fall outside of any exclusions for ongoing operations and maintenance activities, further efforts also need to be made to eliminate the ambiguity introduced by a number of important ter ms in the proposed definition. Terms like “adjacent”, “tributary” and “wetland” must be clearly defined to ensure that they are not construed as applying to water utility infrastructure, including facilities and practices such as those listed above. (p. 2

- 3)

Agency Response: The agencies have revised and clarified the proposed definition of “tributary” and “neighboring” in the final rule. The final rule makes no substantive changes to the existing exclusion for waste treatment systems. The final rule has also expanded the f eatures not considered “waters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when construc ted in, or impounding, waters of the United States, these features may still be considered jurisdictional. With respect to stormwater control features, please see the summary response at 7.4.4

.

Alameda County Flood Control and Water Conservation District, Zone 7, California (Doc. #15259)

7.888 Water resource infrastructure, such as recycled water facilities, water treatment facilities (and associated basins), 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. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practi ce that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies ca n be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water u nder CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates intoClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

586 groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water. With respect to stormwater control features, please see the summary response at 7.4.4

.

7.889 Zone 7 requests that water, wastewater and stormwater infrastructure facilities (including

those used fo r construction, maintenance, detention, storage, settling and operation) adjacent to traditionally navigable waters be excluded from the proposed definition of "waters of the United States. (p. 2)

Agency Response: The final rule has expanded the features not considered

“wa ters of the United States” to include certain wastewater treatment, artificial ponds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, or impounding, wat ers of the United States, these features may still be considered jurisdictional. With respect to stormwater control features, please see the summary response at 7.4.4

.

Beaver Water District, Lowell, Arkansas (Doc. #15405)

7.890 Water system infrastructure should generally be exempt from WOTUS jurisdiction when normal operational and maintenance activities are carried out using best management practices. (p. 2)

Agency Response: See previous response.

Eastern Municipal Water District, Perris, California (Doc. #15409)

7.891 Under the prop osed rule, water recycling and reuse facilities are not explicitly excluded from being designated waters of the U.S. Ditches that transport effluent or conduct discharged excess water are essential features of a water recycling facility and would

meet the definition of “tributary” under the proposed rule and therefore be categorically regulated as waters of the U.S. Water recycling facilities also include storage ponds and percolation basins that would also be considered jurisdictional waters under the rule . The proposed rule defines a “tributary” as any natural or man

- made feature that has bed and banks and an ordinary high water mark, and conducts flow to another water. The rule goes further to clarify that wetlands, lakes, and ponds that do not have ordin ary high water marks are also waters of the U.S. According to the proposed rule, these tributaries remain waters of the U.S. even if piped or obstructed for any length so long as tributary characteristics can be identified upstream of the break.

Water recy cling and reuse facilities are frequently located in a floodplain or otherwise adjacent to jurisdictional water, where the rule proposes that all “waters” would be categorically defined as waters of the U.S. While the proposed rule includes an exemption fo r artificial lakes and ponds used exclusively for settling basins, water recycling facilities can receive and discharge water into surface ditches that would not be exempt under the rule, therefore making the water recycling facilities subject to jurisdict ion. Similarly, detention basins that hold potable water for future treatment and distribution would also be jurisdictional under this interpretation. It is not unusual for a water district to have hundreds of acres of these environmentally benign manmadeClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

587 settling and storage basins which have historically not been jurisdictional. Additionally, the proposed rule’s wastewater treatment exemption would not extend to an associated wastewater recycling facility because such facilities to not treat waste, and ar e not expressly “designed to meet the requirements of the Clean Water Act,” a condition stipulated in the proposed rule that would not cover a beneficial use not addressed in the

Act.

... EMWD requests that water recycling and reuse facilities should be expressly excluded from this rule. The exclusion must be clear and included in the text of the rule, not merely discussed in the preamble. With the effects of climate change and drought in the western U.S., developing new environmentally superior drought

- p roof sources of water must be encouraged by the federal government. This rule could discourage water reuse and interfere with the successful deployment of U.S. Bureau of Reclamation Title XVI and other programs. Unfortunately, the economic analysis that

ac companies the proposed rule completely ignores the potential impact on water recycling and reuse. (p. 3

- 4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agenci es’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like

California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of th e nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many co mmenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and

perc olation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are als o often located in close proximity to tributaries or other larger

bodies of water.

7.892 Exclusion for Water Delivery Systems

EMWD’s customers, as with most Californians, depend upon imported water to supplement limited local water supply. These systems are comp rised of canals and reservoirs that transport water across watersheds to urban areas and traverse much of the state to deliver water for agriculture, municipal, and industrial uses. Like the State Water Project, the Central Valley Project, and the Colorado River Aqueduct in California, other regions of the country have state and federal water delivery systems whose surface water features meet the definition of “tributary” and could be defined as waters of the U.S. The Central Arizona Project (CAP) governing board recently adopted a resolution opposingClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

588 the rule: “...because [the] outcome could be disastrous for CAP and its customers; treatment methods for that volume of water are technically impractical and the costs of compliance are prohibitively expensive.”

EMWD echoes these concerns, and notes that these water delivery systems exist not only in the arid west but in many other parts of the country where storm water flows are diverted and stored for later treatment for drinking water and other beneficial uses. Again, the man

- made reservoirs, delivery canals and overflow channels meet the definition of a tributary and could be defined as waters of the U.S. under the proposed rule. Such designation could dramatically affect the operations and management of these systems and impose new regulatory requirements that would increase operation costs or possibly impede the optimal performance of these water delivery systems

— with no discernible environmental benefit. As with water recycling and reuse facilities, EPA has

s tated repeatedly that regulating these facilities is not the intent of the proposed rule. As such, EMWD requests a clear categorical exclusion for water conveyance facilities to ensure that these systems can continue to efficiently meet water supply needs. (p. 4

- 5)

Agency Response: The agencies have consistently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asse rted jurisdiction over these types of features when created in dry

land. The rule makes no substantive change to the existing exclusion for waste treatment systems designed consistent with the requirements of the CWA.

Grand Valley Water Users Association e t al. (Doc. #15467)

7.893 The proposed rule continues the explicit exemption for ditches, canals and retention/detention/treatment ponds, that are part of wastewater treatment systems, but the rule should also categorically exempt the same structures associated with permitted stormwater management and drinking water treatment systems. (p. 3)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4

. Many commenters asked for an exclusion for drinking water supply systems, similar to e xclusions for wastewater treatment and stormwater control. Because water supply networks can be both complex in structure and extensive in size, involving the use of tributaries as well as a variety of other features, the agencies determined that a comple te exclusion of such systems is not appropriate. However, not all portions of these systems would be regulated under the final rule. Some portions of these systems are tributaries, or even traditional navigable waters, and so would be regulated under this rule for the same reasons that all such waters are subject to regulation as “waters of the United States.” At the same time, there are some portions of these systems that would be excluded from regulation under the paragraph (b) exclusions, including (b)( 3) (ditches that do not flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, constructed lakes and ponds created in dry land

.

Aqua America, Inc. (Doc. #15529)

7.894 ...Aqua supports the exclusions for "waste treatment systems", b ut believes this exclusion needs to be expanded to include all water and wastewater infrastructures.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

589 Water and wastewater facilities are already heavily regulated under the Safe Drinking Water Act (SDWA) and CWA. An important goal of the proposed rulemakin g should be to avoid duplicate regulations that impede environmental improvements. Examples of highly regulated activities that should be included in the exclusions are municipal separate storm systems (MS4s), stormwater retention basins, "green infrastruc ture" practices (e.g., infiltration trenches, swales and artificial wetlands), water reuse, recycling, and reclamation operations, ground water wells, and water treatment systems. The exclusion for water infrastructure should clearly and explicitly encompa ss the full breadth of water and wastewater utility operations. (p. 1

- 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such wat ers and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing intere st in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more p revalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximit y to tributaries or other larger

bodies of water.

With respect to stormwater control features, please see the summary response at

7.4.4

.

Washington County Water Conservancy District, St. George, Utah (Doc. #15536)

7.895 Water Supply Systems. It appears that the Proposed Rule would treat most water supply systems, ranging from major federal and state water delivery systems to smaller reservoirs and other water system components managed by local governments, as “tributaries.” The rule exempts wastewater treatment s ystems from jurisdiction, but does not include a similar exemption for water supply systems. Regulation of water system components under the CWA would impose a needless burden on water purveyors. The Agencies should categorically exempt water supply system s (including treatment systems) from regulation under the Proposed Rule. (p. 29)

Agency Response: Many commenters asked for an exclusion for drinking water supply systems, similar to exclusions for wastewater treatment and stormwater control. Because water supply networks can be both complex in structure andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

590 extensive in size, involving the use of tributaries as well as a variety of other features, the agencies determined that a complete exclusion of such systems is not appropriate. However, not all portions of these syste ms would be regulated under the final rule. Some portions of these systems are tributaries, or even traditional navigable waters, and so would be regulated under this rule for the same reasons that all such waters are subject to regulation as “waters of th e United States.” At the same time, there are some portions of these systems that would be excluded from regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not flow into a navigable water, interstate water or territorial sea) or (4)(B)(artificial, constructed lakes and ponds created in dry land

.

7.896 Water Reuse and Recharge Facilities. It appears that the Proposed Rule would regulate many water reuse and recharge facilities, even facilities that do not discharge to any other juris dictional waters. These types of facilities often include recharge ponds or recycled water impoundments that abut traditional navigable waters. The Agencies should categorically exempt water reuse and recharge facilities from regulation under the Proposed Rule. (p. 29)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling a re not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion resp onds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and rete ntion basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.

7.897 Off

- Site S torage Facilities. As discussed in Section III.A above, the Proposed Rule could be interpreted to regulate manmade facilities that lawfully appropriate and remove water from the natural environment, such as an off

- river storage pond, an intake canal or

coo ling pond for a power plant, or forebay for a hydro

- electric plant. The Agencies should categorically exempt such facilities from regulation under the Proposed Rule. (p. 31)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusi vely” to “primarily” in describing the uses. Artificial lakes andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

591 ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agenc y practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to the list of

uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds created in dry land are excluded.

7.898 Waste Impoundments. The Proposed Rule could be interpreted to regulate waste impoundments historica lly regulated under Resource Conservation and Recovery Act. The Agencies should clarify that the Proposed Rule does not regulate such areas under the CWA. (p. 32)

Agency Response: The rule makes no substantive change to the existing exclusion for waste treatment systems de signed consistent with the requirements of the CWA.

San Luis & Delta

- Mendota Water Authority, Los Banos, California (Doc. #15645)

7.899 F: Disincentives to the necessary expansion of recycled and reclaimed water development

Under the proposed rule, water reclama tion and reuse facilities are not exempt from being designated "waters of the U.S." Added regulatory burdens would not only increase the cost of recycled water, a vitally important emerging new water source throughout the West, but could unnecessarily hamp er the development of this water supply. Water reclamation and reuse facilities should be expressly exempt from this rule. (p. 4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdi ctional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numero us commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins c reated in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects.

Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to c ollect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

592 SCANA Services, Inc. (Do c. #15660)

7.900 We believe that language in the proposed rule needs to clearly state that stormwater management facilities, such as stormwater retention ponds, constructed under a stormwater pollution prevention plan are excluded from regulation as "waters of t he United States." (p. 2)

Agency Response: Please see summary response at 7.4.4.

7.901 SCANA would like to see language included that exempts ponds or impoundments constructed to perform reactor safety functions at nuclear generating facilities (such as

the Service Water Pond at the Virgil C. Summer Nuclear Station, Unit 1) from being identified as waters of the United States. Such ponds perform a critical safety function and needed repairs to dikes or other structures should be allowed to occur without CWA Section 404 permitting . (p. 2)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such a s animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another incidental beneficial use. The ag encies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds created in dry land are excluded.

Associat ion of Electronic Companies of Texas, Inc. (Doc. #16433)

7.902 The electric industry involves the construction, operation, and maintenance of electric generation facilities, and the decommissioning of other electric generation facilities. The Proposed Rule would trigger new and/or revised regulatory requirements for the construction, operation, maintenance, and decommissioning of electric generation facilities. Permitting and compliance costs to address those new and/or revised regulatory requirements would resul t in delays to adding new electric power to the grid, which is necessary to meet the electric power needs of a growing population.

Further, the operation of electric generation facilities usually involves cooling water and

wastewater conveyance, storage, a nd treatment systems that are critical for providing adequate water to cool electric generating units and for the appropriate treatment and then recycling and/or discharge of wastewater generated by those units. Wastewater treatment systems (except for coo ling ponds) that are designed to meet the requirements of the CWA have long been excluded by rule from the definition of WOTUS. 475 As explained below, AECT is concerned that the Proposed Rule would eliminate such regulatory exclusions, despite the EPA's and the Corps' statement that the Proposed Rule "does not

475 See for example 33 C.F.R. § 328.3(a)(8), 40 C.F.R. § 117(i)(6), 40 C.F.R. § I22.2(g), 40 C.F.R. § 230.3(s)(7), 40 C.F.R. § 232.2, 40 C.F.R. § 300.5, and Appendix E to Part 300, section 1.5.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

593 change regulatory exclusions for waste treatment systems" 476 and that such exclusion would remain "even if they would otherwise fall within one of the categories [of WOTUS].” 477

Unlike the exclusion for was tewater systems, there is no express exclusion that the EPA and the Corps say would be preserved for cooling water systems. Although EPA and the Corps state that "[t]he agencies propose, for the first time, to exclude by regu1ation

certain waters and featu res over which the agencies have as a policy matter generally not asserted CWA jurisdiction," it is not clear whether the agencies are referring to part or all of a cooling water system (e.g., ditches or other features associated with a cooling water

syste m at an electric generating facility) that have historically been excluded from CWA jurisdiction. 478

...AECT requests that EPA and the Corps expressly exempt all parts of such cooling and wastewater systems. Any impact to the water in such a cooling and/or wastewater system would have no impact on the chemical, physical, or biological characteristics of waters outside the site boundary, and if the water in such a cooling and/or wastewater system would ever be discharged outside the site boundaries, their dis charges would be subject to strict water quality standards and effluent limitations. (p. 4, 5)

Agency Response: In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are oft en not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated a s jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds created in dry land are excluded.

Inland Empire Utilities Agency, California (Doc. #16520)

7.903 We appreciate EPA's explanation that the proposed rule would not change the existing regulatory exclusion for wastewater treatment systems that have been designed to meet the requirements of the CWA. However, Section (b) of the proposed rule does not clearly state that water reuse and recycling infrastructure that are part of wastewater treatment systems are excluded. The ty pes of facilities that need to be clearly listed in the wastewater system exemption include water reuse and recycling ponds, water treatment lagoons, and other appurtenances; artificially constructed wetlands designed to treat agricultural or stormwater ru noff (e.g. "green infrastructure") that can be used to manage the removal of sediment and nutrients and improve water quality for water reuse and recycling; and, artificially constructed groundwater recharge basins designed to percolate

surface water into groundwater basins for reuse and recycling.

476 79 Fed

. Reg, 22193; see a similar statement at79 Fed. Reg. 22189.

477 79 Fed. Reg. 222 17.

478 79 Fed. Reg. 22189.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

594 Given the severity of the current drought throughout the west and rising concerns about the impact of climate change on the nation's long

- term water supply reliability, it is vital that the steps that are being t aken by the EPA and the Corps to protect the "waters of the United States" not impede the development and use of recycled water and stormwater for groundwater replenishment and direct use as a water supply.

On behalf of IEUA, we request that the wastewater systems exemption specified in Section (b) of the proposed regulation be expanded to include water reuse and recycling ponds, water treatment lagoons, artificially constructed wetlands designed to treat agricultural or stormwater runoff, and artificially constructed groundwater recharge basins as listed above... (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and w ater features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to trib utaries or other larger

bodies of water.

With respect to stormwater control features (e.g., green infrastructure), please see the summary response at 7.4.4

.

ARIPPA (Doc. #16545.1)

7.904 Most existing legacy coal refuse stock piles are found on Abandoned Mine Lan ds. In order to reclaim these lands back to their natural state coal refuse to alternative energy plants must first acquire permitting to remove and re

- mine legacy stockpiled coal refuse. ARIPPA Members have a major concern as to the economic impacts the r ule will have on such permitting and re

- mining. Many of these legacy coal refuse stockpile sites impacted surface waters (since in the past coal refuse was often stockpiled in swales, drainage ways, and streams prior to laws and regulations disallowing suc h activity).

Today, these legacy "stockpile sites" are the source of fuel for the ARIPPA Member electric generating plants. As such, the sites are re

- mined under the state delegated SMCRA Permits and state delegated NPDES Program. However, ARIPPA is concer nedClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

595 that the rule as written will hinder and delay ARIPPA Members' ability to obtain the necessary permits to remove these legacy stockpiles that are a major source of acid mine pollution and stream degradation.

These sites are currently well regulated und er Pennsylvania's Surface Mine and the Beneficial Use of Ash Regulations. ARIPPA Members work closely with the PADEP [Pennsylvania Department of Environmental Protection] Mining Bureau to eliminate these sources of mine drainage, sedimentation, and air pol lution in both a safe and environmentally responsible manner. In fact many plants have won environmental

steward awards for their work in re

- mining legacy coal refuse stock piles and reclaiming the correlating abandoned mine sites.

At a minimum these pro

jects should be clearly excluded from the rule and should be left under the jurisdiction of the Office of Surface Mining and Reclamation (OSMRE). Further, Congress has directed. OSMRE to develop regulations encouraging the re

mining of coal refuse sites an d piles. (p. 4

- 5)

Agency Response: The agencies disagree that these types of features or activities should be categorically excluded from consideration as “waters of the United States.” The agencies support the goals of remining activities but feel it is more appropriate t o encourage these activities through streamlined permitting options,

such as Nationwide Permits.

Cucamonga Valley Water District, California (Doc. #16556)

7.905 Water reclamation and reuse facilities are not exempt from being designated waters of the

U.S. Ditche s that transport effluent or discharged water can easily meet the definition of "tributary" under the proposed rule and be categorically regulated as waters of the U.S. The proposed rule defines a "tributary" as any natural or man

- made feature that has a b ed, bank, ordinary high water mark, and conducts flow to another water. Reclamation and reuse facilities are frequently located in a floodplain or otherwise adjacent to jurisdictional water where all waters are categorically defined as waters of the U.S. W hile the proposed rule includes an exemption for artificial lakes and ponds used exclusively for settling basins, such reuse facilities can function or take on the characteristics of a wetland and can receive and discharge water into surface ditches that a re not exempt. The proposed rule's waste water treatment exemption would not extend to an associated water reuse facility because such facilities are not expressly "designed to meet the requirements of the Clean Water Act," a condition stipulated in the ru le that would not cover a

beneficial use not addressed in the Clean Water Act.

California acknowledges the value of recycled water and established a statewide goal (California Water Plan) of recycling 2.5 million acre feet of water by 2030. In 2009, 0.67

M AF was recycled; and increasing to 2.5 MAF is ambitious, but necessary to help drought

- proof the state. Currently, 3.5 MAF of treated wastewater is being discharged to the ocean that could be developed for beneficial reuse. Obstacles such as designating

so me water reuse facilities as waters of the U.S. will further delay achieving that goal.

Water reclamation and reuse facilities should be expressly exempt from this rule, particularly in times of drought such as the one that currently affects most western s tates; developing new sources of water for consumption should be encouraged. This rule couldClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

596 discourage water reuse and interfere with the successful deployment of U.S Bureau of Reclamation Title XVI programs. Of equal concern is that the economic analysis that accompanies the propose rule completely ignores the potential impact on water reuse. (p. 2)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ curre nt practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like

California where water su pplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’ s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation p onds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often l ocated in close proximity to tributaries or other larger

bodies of water.

Castaic Lake Water Agency, Santa Clarita, California (Doc. #17061)

7.906 The proposed rule revises the existing jurisdictional category of "adjacent wetlands." The proposed "adjacent water s" category would replace "adjacent wetlands" and would thus include other neighboring water bodies, including those located in the adjacent flood plain or having a shallow subsurface hydrologic connection or confined surface hydrologic connection to a jur isdictional water. As stated above, CLWA relies on water banking programs in the San Joaquin Valley. Some of these programs rely on man

- made spreading facilities that would appear to fall under the new definition of adjacent waters. Further, to reduce reli ance on environmentally sensitive imported water such as that being conveyed through the Sacramento San Joaquin Bay Delta, CLWA is investigating the feasibility of using highly treated recycled water to recharge groundwater basins adjacent to the Santa Cla ra River. Such groundwater recharge facilities may share storm water capture facilities being considered by the City of Santa Clarita. Thus, CLWA joins ACWA in requesting that water infrastructure facilities including construction, maintenance and operatio n adjacent to traditionally navigable water be excluded from the proposed definition of "waters of the U.S." (p. 2)

Agency Response: The final rule has expanded the features not considered “waters of the United States” to include certain wastewater treatment, artificial

po nds, and stormwater facilities that may address some of the features discussed in this comment, where constructed in dry land. However, when constructed in, orClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

597 impounding, waters of the United States, these features may still be considered jurisdictional.

Cloud Peak Energy (Doc. #18010)

7.907 Under the proposed rule it is not clear whether these on

- site water management systems

will remain non

-

jurisdictional. We are concerned that inclusion of these treatment and conveyance systems will significantly impact minin g operations. If the rule is not clarified, the unintended consequence will be that many of these traditional, effective treatment systems will no longer be available to the mining industry. Moreover, the mining industry requests a clear statement in the r ule that these mine site water

management systems are non

- jurisdictional.

If the onsite treatment systems are considered jurisdictional, mines will face additional permitting requirements related to these treatment systems. Mines will no longer be able

to relocate the systems as needed without additional permitting requirements and associated delays. System maintenance and clean

- out may be delayed or stopped because of the jurisdictional status and the inability to impact the system without triggering possi ble mitigation requirements. These onsite treatment systems must remain non

jurisdictional if they are to remain effective treatment systems.

Many of these onsite treatment systems are designed to ensure that if there are any surface discharges from a mine site into downstream navigable waters, those discharges are covered under an NPDES permit. As such possible, violations of the applicable water quality standards are covered through NPDES regulations. Often times these treatment systems are designed to be zero discharge, further safeguarding that there are no environmental impacts. The need to include these as jurisdictional waters is unwarranted because the discharges from these systems are already regulated through other CWA regulations. (p. 4)

Agency Response: Current a gencies’ practices often consider some features described in this comments as “waste treatment systems” during the active period of mining, and are therefore excluded from coverage until reclaimed. Nothing in the rule is intended to alter the current appli cation of the waste treatment exclusion.

Xcel Energy (Doc. #18023)

7.908 ... Constructed stormwater conveyances (such as swales, channels, ditches, and engineered storm water management ponds), water supply ditches, and ephemeral drainages should not be treated as jurisdictional Waters of the U.S....” (p. 7

- 8)

Agency Response: With respect to stormwater control features, please see the summary response at 7.4.4

.

WateReuse Association (WateReuse) (Doc. #12758)

7.909 We believe the agencies should exclude all other constructed or managed wat er reuse and recycling treatment infrastructure. Such facilities have related attributes to waste treatment systems by providing an important mechanism for the beneficial disposition of treated effluent. Additionally, these systems also provide an importan t and environmentally superior water supply function. As such, excluded facilities shouldClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

598 encompass all water reuse and recycling conveyance systems, storage impoundments, water treatment lagoons, and other appurtenances; artificially constructed wetlands designed to treat agricultural or stormwater runoff (e.g. "green infrastructure") that can be used to manage the removal of sediment, nutrients and improve water quality for water reuse and recycling; and artificially constructed groundwater recharge basin s designed to percolate surface water into groundwater basins for reuse and recycling.

Even though many of these man

- made features can contain plants and shrubs known to grow in wetlands or meet the proposed rule's definition of "tributary" or "adjacent," they should be included in the list of features identified in the proposed rule as excluded from the definition of "waters of the U.S." We believe that if water reuse and recycling infrastructure and related facilities are made jurisdictional under the CWA through the proposed rule, it would substantially hinder our ability to access this major source of fresh water supply so important to the current and future water supply reliability of many communities across the Nation. (p. 2

- 3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encour ages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects. Detention and retention basins can pl ay an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.

With respect to stormwater control features, pl ease see the summary response at

7.4.4

.

Eastern Municipal Water District, Perris California (Doc. #15544)

7.910 Exclusion for Water Recycling and Reuse Facilities

Recycled water is a beneficial use that develops reliable local water resources and

reduces demand for imported water supplies. In addition, it is one of the highest forms of water use efficiency because water is literally used twice. Moreover, recycled water is an environmentally benign supply that is a key component of the present and future waterClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

599 sup ply portfolio not only for EMWD, southern California and the arid west, but for every region of the country seeking to more effectively manage water resources.

The processes for recycling and reusing water are costly but are becoming more widely implemente d in areas of the country where groundwater and surface water sources are strained, and the cost or availability of imported water are prohibitive or limited. Water authorities across the country, especially those in the arid west, are investing millions o f dollars in infrastructure to utilize recycled water because it is a drought

- proof water resource. Treatment and distribution costs of recycled water are already high, making this valuable resource marginally cost

- effective in many places. Any significant increase in regulation and the associated costs for compliance, such as defining recycled water infrastructure as waters of the U.S., will escalate the cost of utilizing this water and discourage its development.

Under the proposed rule, water recycling a nd reuse facilities are not explicitly excluded from being designated waters of the U.S. Ditches that transport effluent or conduct discharged excess water are essential features of a water recycling facility and would meet the definition of “tributary” un der the proposed rule and therefore be categorically regulated as waters of the U.S. Water recycling facilities also include storage ponds and percolation basins that would also be considered jurisdictional waters under the rule. The proposed rule defines a “tributary” as any natural or manmade feature that has bed and banks and an ordinary high water mark, and conducts flow to another water. The rule goes further to clarify that wetlands, lakes, and ponds that do not have ordinary high

water marks are also waters of the U.S. According to the proposed rule, these tributaries remain waters of the U.S. even if piped or obstructed for any length so long as tributary characteristics can be identified upstream of the break.

Water recycling and reuse facilities ar e frequently located in a floodplain or otherwise adjacent to jurisdictional water, where the rule proposes that all “waters” would be categorically defined as waters of the U.S. While the proposed rule includes an exemption for artificial lakes and ponds used exclusively for settling basins, water recycling facilities can receive and discharge water into surface ditches that would not be exempt under the rule, therefore making the water recycling facilities subject to jurisdiction. Similarly, detention bas ins that hold potable water for future treatment and distribution would also be jurisdictional under this interpretation. It is not unusual for a water district to have hundreds of acres of these environmentally benign man

- made settling and storage basins which have historically not been jurisdictional. Additionally, the proposed rule’s wastewater treatment exemption would not extend to an associated wastewater recycling facility because such facilities to not treat waste, and are not expressly “designed to meet the requirements of the Clean Water Act,” a condition stipulated in the proposed rule that would not cover a beneficial use not addressed in the

Act.

Under the proposed rule, ten EMWD man

- made recycled water storage ponds could become jurisdictional because they are located in floodplains, are adjacent to jurisdictional waters, and potentially possess a minor subsurface hydrologic connection. These facilities have no hydraulic connection to waters of the U.S. and are not subject to flooding or spill i nto such waters. Should these facilities become jurisdictional under the proposed rule, regular maintenance and vegetation removal of these 500 acres of man

-Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

600 made and maintained ponds would require 404 permits. Even more problematic and costly would be the additional regulatory requirements associated with these features being designated as waters of the U.S., namely the potential requirements to meet water quality standards for fishable and swimmable waters and to control all discharges into

these waters.

T hese added regulatory burdens would not only increase the cost of recycled water and potentially delay further development of recycled water storage ponds, but could hamper the development of a critically important drought

- proof water supply for the region

. These water storage facilities are essential to maximize the use of recycled water because recycled water is in greater demand in warmer months and less in the winter, requiring storage in the winter in order to meet the demand in summer. Such a system i s required anywhere in the arid west that utilizes recycled water, as well as other areas of the country that store water for later treatment and delivery.

EMWD requests that water recycling and reuse facilities should be expressly excluded from this rule. The exclusion must be clear and included in the text of the rule, not merely discussed in the preamble. With the effects of climate change and drought in the western U.S., developing new environmentally superior drought

- proof sources of water

must be enco uraged by the federal government. This rule could discourage water reuse and interfere with the successful deployment of U.S. Bureau of Reclamation Title XVI and other programs. Unfortunately, the economic analysis that accompanies the proposed rule comple tely ignores the potential impact on water recycling and reuse. (p. 3

- 4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such wat ers and water features used for water reuse and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The a gencies specifically exclude constructed detention and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interes t in and commitment to water recycling and reuse projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more pr evalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.

7.911 Exclusion for Water Delivery Systems

EMWD’s customers, as with most Californians, depend upon imported water to supplement limited local water supply. These systems are comprised of canals andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

601 reservoirs that transport water across watersheds to urban areas and traverse much of the state to deliver water for agriculture, municipal, and industrial uses. Like the State Water Project, the Central Valley Project, and the Colorado River Aqueduct in California, other regions of the country have state and federal water delivery systems whose surface water features meet the definition of “tributary” and could be defined as waters of the U.S. The Central Arizona Project (CAP) governing board recently adopted a resol ution opposing the rule: “...because [the] outcome could be disastrous for CAP and its customers; treatment methods for that volume of water are technically impractical and the costs of compliance are prohibitively expensive.”

EMWD echoes these concerns, and notes that these water delivery systems exist not only in the arid west but in many other parts of the country where storm water flows are diverted and stored for later treatment for drinking water and other beneficial uses. Again, the man

- made reservoirs , delivery canals and overflow channels meet the definition of a tributary and could be defined as waters of the U.S. under the proposed rule. Such designation could dramatically affect the operations and management of these systems and impose new regulato ry requirements that would increase operation costs or possibly impede the optimal performance of these water delivery systems

— with no discernible environmental benefit. As with water recycling and reuse facilities, EPA has stated repeatedly that regulatin g these facilities is not the intent of the proposed rule. As such, EMWD requests a clear categorical exclusion for water conveyance facilities to ensure that these systems can continue to efficiently meet water supply needs. (p. 4)

Agency Response: The agencies have consi stently regulated aqueducts and canals as “waters of the United States” where they serve as tributaries, removing water from one part of the tributary network and moving it to another. The agencies have not in practice asserted jurisdiction over these type s of features when created in dry

land. The rule makes no substantive change to the existing exclusion for waste treatment systems designed consistent with the requirements of the CWA.

George Washington University Regulatory Studies Center (Doc. #13563)

7.912 Th e Agencies should expand their exclusions from the Waters of the United States to include, not just wastewater systems, but also municipal separate storm systems (MS4s), especially “green infrastructure” practices; water reuse, recycling, and reclamation

o perations; and commercial, industrial and manufacturing water treatment systems.

The Agencies affirm, without explanation, the long

- standing exclusion of wastewater systems from the Waters of the United States and the proposed rule, presumably, on the

grou nds that these entities are already adequately regulated under the CWA as to permitting, water quality standards, enforcement, and the like. This is sensible and appropriate.

Yet, it is fair to ask if this same rationale might be extended to other highly r egulated activities which also generate environmental and water quality benefits such as MS4s, along with “green infrastructure” practices; water reuse, recycling, and reclamation operations; and commercial, industrial and manufacturing water treatment sys tems. At the very least, extending the wastewater system exclusion to these other activities merit consideration and comment. In the case of MS4s, any new proposal for exclusion andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

602 solicitation of public comment should extend to their conveyances that cha nnel and discharge stormwater runoff as well as “green infrastructure” approaches which attempt to infiltrate, reuse, retain and evaporate stormwater flows. Constructed wetlands should

also be considered for exclusion.

In addition to avoiding double or red undant regulation, such exclusions are conducive to these other activities, all of which benefit the environment and water quality including its chemical, physical and biological components.

The goal should be to avoid double regulation and remove obstacle s to environmental improvement by private entities and citizens.

Recommendation

The Agencies should propose and seek public comment on additional exclusions from the Waters of the United States to include, not just wastewater systems, but also municipal

se parate storm systems (MS4s) and their conveyance network as well “green infrastructure” practices; water reuse, recycling, and reclamation operations; and commercial, industrial and manufacturing water treatment systems. (p. 8

- 9)

Agency Response: While the agencies may not agree with all points raised in this comment, they agree that a specific exclusion for stormwater control features built in dryland is appropriate. Please see summary response at 7.4.4. With respect to
waste treatment systems, see summary response at 7. 1

. Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jur isdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to nu merous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of

the nation’s water under CWA.

The agencies specifically exclude constructed detention and retention basi ns created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reuse projects.

Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

These features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water.

Water Environment Fe deration (Doc. #16584)

7.913 The Waste Treatment Exemption Should Specifically Include Water Recycling Facilities and Effluent Storage PondsClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

603 In order to address the historic drought conditions currently plaguing the western states,water and wastewater agencies m ust rely on a full suite of flexible options to provide potable and recycled water supplies for a variety of ongoing uses. Thus, WEF opposes any direct or indirect regulatory impacts on water recycling, water storage, and other mechanisms that play a part in recycled water infrastructure and processes as a result of the proposed rule.

As noted above, we appreciate the explicit acknowledgement and codification of the waste treatment exemption in the proposed rule. However, we believe it is important that

the proposed rule expressly states that the waste treatment exemption extends to recycled water facilities. States’ water recycling projects often depend upon artificially created wetlands and storage ponds to treat millions of gallons of water a day. If thes e features are considered waters of the U.S. and are excluded from the waste treatment exemption, they could theoretically no longer be used as an integral component of the waste treatment systems, forcing the closure of important recycled water projects c ritical to states’s water supply. Moreover, a lack of clarity on this issue may stall or halt the development of recycled water projects at a time when recycling is needed the most to address climate resiliency priorities.

Because recycled water demand is variable with time of day and season, recycled water agencies maintain reservoirs or storage basins/ponds to store recycled water during periods of low usage in anticipation of peak demands. These features are an essential component of the recycled water p rocess and integral to an agency’s ability to continue reliably producing and supplying recycled water in many instances. The proposed rule should affirm that such reservoirs along with influent and treated effluent storage ponds are within the scope of th e waste treatment exemption, consistent with the regulatory definition of “complete waste treatment system” found in existing federal regulations. 479
As the proposed rule and existing practice acknowledge, waste treatment systems designed to meet the require ments of the Clean Water Act are not waters of the U.S., and treatment systems should include any facilities, including storage ponds and basins, related not only to traditional treatment facilities and processes, but also to the production of recycled wat er.

In the alternative, recycled water facilities and features (including storage ponds, basins, artificially created wetlands, recycled water reservoirs and other features associated with water recycling) should be expressly exempted as part of the specif ically identified features that are not considered waters of the United States within the proposed rule. In this case, recycled water facilities would be treated similar to artificial lakes, ponds, swimming pools, ornamental waters, and groundwater, which are specifically identified and expressly exempted. In either case, whether recycled water facilities are considered part of the waste treatment exemption or have their own specifically identified

479 See 40 C.F.R. §35.2005(b)(12), defining “complete waste treatment system” as “all the treatment works necessary to meet the requirements of title III of the [CWA], inv olving . . . the ultimate disposal, including recycling or reuse, of the treated wastewater and residues which result from the treatment process.” (Emphasis added); see also 40 C.F.R. §35.2005(b)(49) [definition of “treatment works” includes “storage of tr eated wastewater in land treatment systems before land application” among other things].Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

604 exemption, it is essential that the proposed rule not inter fere with recycled water production and treatment by making those features jurisdictional.

The failure to include an explicit statement in the final rule would leave open the question

of whether these features are considered “waters of the United States.” Such a situation could lead to regulatory disincentives to produce recycled water in western states, including California, compounding a water scarcity situation that is already dire. Pending and adopted federal and state legislation to address the impacts of our historic drought contain a number of approaches to encourage recycled water projects. Transforming components of the recycled water process (including integral systems such as storage ponds) into jurisdictional waters would undercut efforts to addr ess the drought. (p. 2

- 3)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse

and recycling are not jurisdictional when constructed in dry land. The agencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply

issues. This ex clusion responds to numerous commenters and encourages water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.

The agencies specifically exclude constructed detent ion and retention basins created in dry land used for wastewater recycling as well as groundwater recharge basins and percolation ponds built for wastewater recycling. Many commenters noted the growing interest in and commitment to water recycling and reus e projects. Detention and retention basins can play an important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater recharge basins and percolation ponds are becoming more prevalent tools for water reuse and recycling.

Th ese features are used to collect and store water which then infiltrates into groundwater via permeable soils. Though these features are often created in dry land, they are also often located in close proximity to tributaries or other larger

bodies of water

. In the exclusion for artificial lakes or ponds, the agencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes,

such as anima l habitat, water retention or recreation. The change to the exclusion reflects Agency practice and ensures that waters the agencies have historically not treated as jurisdictional do not become so because of another incidental beneficial use. The agencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds created in dry land are

excluded.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

605 7.5. S UPPLEMENTAL C OMMENTS O N F EATURES AND W ATERS N OT J URISDICTIONAL

Summary Response

The substantive issues raised in this section are addressed in the summary responses and individual responses above, and commenters should review those sections. Additional

references and information are provided below.

Specific Comments

Anonymous (Doc. #2893)

7.922 Problem: This rule can be wrongly utilized in claiming jurisdiction over eroded storm water outfall such as gullies because it has a bed and bank formation (although it was

never hi storically a ephemeral channel). Jurisdiction may be pushed up the gully so far that it may also take jurisdiction over MS

- 4 structures and SWMP. This could result in a delay and increase expense in retrofit projects since a permit would be required as wel l as possible mitigation.

This rule wants to clarify the difference between a man made gully and a natural channel

but it is not as obvious in the field to determine the difference.

Problem Resolution: Must have a specific definition of what a OHWM is and guidance on how to properly field identify the feature in order to determine if the gully is a WOUS.

The soil profile of the gully must exhibit old channel bed characteristics somewhere in the profile strata (layer of sorted cobble, pebbles and stone) to p rove it was a natural drainage. (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. See summary response 7.3.7 for discussion of gullies.

Department of Public Works , City of Harrisonville, Missouri (Doc. #4038.2)

7.923 Our interpretation of the current rule, and its implications for existing EPA and USACOE rules, is that many tasks associated with routine municipal maintenance would now require additional interaction with both federal agencies. Applications would have to be completed and filed with the appropriate agency for work within the “Waters of the United States”, coupled with additional monitoring, and reporting for such routine

maintenance as:

Removal of vegetatio n (mowing) in and along roadside ditches.

Installing or replacing utility poles, street signs and traffic control devices (signage or lights) on the banks of ditches following motor vehicle accidents or natural disasters.

Placing stone (riprap) into or rem oving stone from ditches and stormwater channels to facilitate, control, and mitigate damage from stormwater transport.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

606 Removing plant or mineral debris from ditches or stormwater channels as part of a program of regular maintenance to avoid flooding stree ts and other city property, and reducing private property owner damages as well as reducing soil erosion.

Re

‐ contouring bank cuts for existing ditches and stormwater channels to reduce soil erosion even with the required land disturbance permits and an app roved erosion control program for the state environmental agency. (p. 1

– 2)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. With regard to maintenance and upkeep of exi sting structures, the agencies note that there are several options for streamlined permitting alternatives, such as Regional General

Permits and Nationwide Permits 3 and 13.

7.924 We request that roadside ditches and stormwater channels which only carry water af ter rain or snow storms be added to the categorical exclusion from Waters of the United States. Further we ask that both agencies carefully examine the language in the draft rule to insure that it will not have significant impact on land use decisions with in the city in ways already controlled by city governments. (p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. For discussion of excluded ditches and the implication s for roadside ditches, please see discussion in preamble and the summary response at 6.2.

William P. Minervini (Doc. #4040.2)

7.925 Exclusion of Waste Treatment Systems Designed to Meet the Requirements of the

Clean Water Act

The Environmental Protection Agenc y (EPA) and the U.S. Army Corps of Engineers (Corps) should confirm that these “waste treatment systems” include stormwater treatment systems designed to meet the requirements of National Pollutant Discharge Elimination System (NPDES) permits for stormwate r discharges issued under section 402 of the Clean Water Act (CWA). Such discharges include, for example (see 40 CFR 122.26 and 122.32), stormwater discharges associated with industrial activity or small construction activity, and stormwater discharges fro m some municipal separate storm sewer systems (MS4s). Examples of such stormwater treatment systems include (i) sediment basins that treat some stormwater discharges associated with construction activity; and (ii) dry detention ponds, wet ponds, infiltrati on basins, and stormwater wetlands that treat stormwater runoff from some new development and redevelopment projects that discharge into some MS4s.

The CWA uses the phrase “waste treatment” very broadly. For example, section 201(c)

of the CWA declares that “to the extent practicable, waste treatment management shall be on an areawide basis and provide control or treatment of all point and nonpoint sources of pollution, including in place or accumulated pollution sources” (emphasis added). Section

208 of the CWA requires “areawide waste treatment management plans” (emphasis added) to include, among other things, the necessary “urban storm water runoff systems,”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

607 and the establishment of a regulatory program to “implement the waste treatment management requirem ents of section 201(c)” (see section 208(b)(2)(A) and (C)). (p. 1)

Agency Response: See summary response on waste treatment systems at 7. 1

. With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4.

7.926 Relation to Natural Buffers and the Construction and Development Point Source Category (NPDES)

The EPA and the Corps assert that through their proposed rule they “are providing clarity to regulated entities as to whether individual water bodies are jurisdictional and discharges are subject to permitting, and whether individual water bodies are not jurisdictional and discharges are not subject to permitting” (79 FR 22188). In the NPDES program, however, the definition of “waters of the United States” serves an additional regulatory purpose not mentioned either in the April 21, 2014 rule proposal notice or in the ‘‘Economic Analysis of Proposed Revised Definition of Waters of the United States’’ cited in that notice (79 FR 22220).

This purpose is to pro vide clarity as to which individual water bodies require provision and maintenance of “natural buffers” (unless infeasible) pursuant to EPA’s Effluent Limitations Guidelines and Standards for the Construction and Development point source category (as amend ed in 2014; see 79 FR 12661). See 40 CFR 450.21(a)(6), which uses the term “waters of the United States.” Even where it is indisputable (whether the definition of “waters of the United States” is changed or not) that stormwater from a

construction site dis charges to “waters of the United States” (which in many instances are located offsite), the definition of “waters of the United States” can still be important in establishing which (if any) individual water bodies at the construction site are subject to

th e “natural buffers” requirement. EPA should consider and discuss the aquatic resource, implementation, and economic implications of a definition of ‘‘waters of the United States’’ as they pertain to the “natural buffers” requirement in 40 CFR 450.21(a)(6). (p. 1

– 2)

Agency Response: The final rule does not address the buffer requirements that may apply through various CWA programs, and comments about 40 CFR 450.21(a)(6) are outside the scope of this rulemaking. With respect to the jurisdictional status of stormwater contr ol features as waters of the U.S., please see summary response at 7.4.4. Also, please see Economics Analysis section 8 regarding costs and benefits for the NPDES program.

7.927 NPDES Permits and Ground Water

The EPA and the Corps assert that “the agencies have never interpreted ‘waters of the United States’ to include groundwater and the proposed rule explicitly excludes groundwater” (79 FR 22218). EPA asserted in 1990, however, that “discharges to ground waters” are subject to NPDES permitting if “there is a hy drological connection between the ground water and a nearby surface water body.” See 55 FR 47990, 47997 (Nov. 16, l990) (storm water permit application regulations). Although this 1990 assertion was not the same as an assertion that this groundwater is “wa ters of the United States,” this 1990Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

608 assertion nevertheless alleged a significant link between NPDES permitting and some groundwater.

What is EPA’s current position in this regard? Are releases of waste from discernible, confined, and discrete conveyances into groundwater “hydrological connected” to “nearby” “waters of the United States” subject to NPDES permitting? If so, how close is “nearby”? (Specify number of feet or other suitable units.) The answers to these questions affect the practical significan ce of explicitly excluding groundwater from the “waters of the United States” definition. (p. 2)

Agency Response: Please see summary response at 7.3.6 (groundwater) and summary response at 12.3.

Town of Carolina Beach, North Carolina (Doc. #5618)

7.928 8. BE IT FURTHER RESOLVE D , that the rule include the following provisions that are priority concerns for local governments:

 Separate municipal storm sewers will continue to be regulated and permitted under Section 402 of the Clean Water Act, and shall not be considered, either in their entirely or any individual feature thereof, Waters of the U.S.; and

 Green infrastructure developed to improve water quality or achieve multiple public benefits shall be encouraged and given priority consideration that does not impose additional fina ncial and regulatory burdens of permittees and shall not be considered Waters of the United States; and

 Water delivery, reuse, and reclamation systems and facilities shall not be considered waters of the U.S.; and

 Wastewater treatment systems and all assoc iated infrastructure shall not be considered waters of the U.S.; and (p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. With respect to water delivery, reuse, and r eclamation systems, please see summary response at

7.4.2.

Black Hills Corporation (Doc. #6248)

7.929 Black Hills recommends that at a minimum, the definition of WOTUS (Section 40 CFR 230.3) should be expanded to specifically exclude man

- made stormwater conveyanc es and other BMPs implemented for stormwater compliance. (p. 4)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4.

Amber Earnhardt (Doc. #6761)

7.930 I. Any rule that exempts all groundwater from CWA jurisdiction clearly violates the purpose, intent, and science grounded in the Act and is inconsistent with the language of the proposed rule.

A. Purpose and Legislative Intent of the Clean Water Act Support the Inclusion of

“Tributar y” Groundwater:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

609 The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 480 Congress’s broad purpose, along with their recognition of the hydrologic connection between surface and groundwa ter and the importance of controlling pollution at its source, makes it critical for the EPA/Corps to include “shallow” or “tributary” groundwater under “other waters” in order to be consistent with the goals of the CWA. 481 Congress did not explicitly exempt groundwater within the language of the Act, as it did for agricultural return flows. 482 Therefore, with the broad definition of “waters of the U.S.” the statute demonstrates that Congress intended to include some forms of groundwater in regulating point sou rce pollution. 483
Statutory language may vary when referring to groundwater throughout sections of the CWA, but the objective of the CWA is clear.

The Senate Committee Report 92

- 414 reveals that Congress recognized the connection

between surface and groundwater, stating that “it must be remembered that rivers, streams, and lakes themselves are largely supplied with water from the ground

— not
surface runoff.” 484 The Report explicitly shows that Congress understood the complexity of groundwater and its con nection to other surface waters. (p. 2

– 3)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final rule does not a ffect this longstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.931 B. Scientific Evidence Supports “Tributary” Groundwater:

Science is clear about the impacts of “shallow” or “tributary” groundwater on the chemical, physical, and biological integrity of downstream waters. “Tributary” groundwater is groundwater that discharges into surface water. 485 The E PA’s scientific evidence acknowledges that wetlands provide temporary storage of local groundwater that supports baseflow in rivers, 486 and references aquifers and “shallow groundwater” as a major source of annual flow in rivers, especially in the southweste rn U.S. 487 Isolated wetlands can also be connected to downstream waters through groundwater

connections. 488 The scientific evidence clearly demonstrates the critical role that groundwater plays in the health of adjacent, tributary, and downstream “waters of th e U.S.”

480 33 U.S.C. § 1251(a).

481 Brian Knutsen, Asserting Clean Water Act Jurisdiction Over Isolated Waters: What Happens After the SWANCC Decision, 10 Alb. L. Envtl. Outlook J. 155, 194 (2005).

482 Mary Christina Wood, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under the Clean Water Act, 12 Harv. Envtl. L. Rev. 569, 576 (1988).

483 Id.

484 S. Rep. No. 92

- 414, reprinted in 1972 U.S.C.C.A.N. 3668, 3739.

485 Mary Christina Wood, supra note 6, at 570.

486 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22223.

487 Id. at 22224.

488 Id . at 22226.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

610 Further, the US Geological Survey is currently encouraging more significant interdisciplinary research that includes research about the relationship between groundwater and surface water resources. 489 The USGS acknowledges that “we need enough ground water of good quality to sustain our lives, our economy, and our aquatic ecosystems.” 490 Another challenge of managing our water resources is the slow movement of groundwater

–– the effects of pumping can take years to measure, leading to groundwater mistakenly seeming less critical compared to surface water. 491

Different regions of the U.S. will be adversely impacted if groundwater is excluded from federal jurisdiction under the CWA. For instance, the IJC Great Lakes Sci ence Advisory Board stated that “the Great Lakes cannot be protected without protecting the groundwater resources in the Basin.” 492 “Tributary” groundwater in the Great Lakes Basin requires protection, as groundwater contributes over 50 percent of the water flowing to streams that discharge into the Great Lakes, 493 supplies drinking water for 8.2 million people, 494 and sustains the industry and ecology of the region. 495 (p. 3

– 4)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep ground water from the geographic scope of the waters of the United States. The exclusion for groundwater in the final rule does not affect this longstanding interpretation as the agencies have never considered the groundwater

itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.932 C. Purpose of Proposed Rule Supports “Tributary” Groundwater:

When referencing scientific evidence for its purpose, the proposed rule states that

“tributaries a nd adjacent waters play an important role in maintaining the chemical, physical, and biological integrity of traditional navigable waters....because of their hydrological and ecological connections to and interactions with those waters.” 496

However, as evident in the scientific literature, groundwater connections are as if not

more critical to the integrity of downstream waters. The term groundwater was significantly used (over 55 times) and discussed at length within Appendix A in demonstrating the hydrologic connection to downstream waters, 497 but the mentioning of

489 W.E. Sanford, J.S. Caine, D.A. Wilcox, H.C. McWreath, & J.R. Nichola s, Research Opportunities in Interdisciplinary Ground

- Water Science in the U.S. Geological Survey (January 11, 2013), available at: http://pubs.usgs.gov/circ/circ1293/circ1293.html.

490 Id

. 491 N.G. GRANNEMANN, R.J. HUNT, J.R. NICHOLAS, T.E. REILLY, & T.C. WIN TER, U.S. GEOLOGICAL SURVEY: THE IMPORTANCE OF GROUND WATER IN THE GREAT LAKES REGION 1 (2000).

492 INTERNATIONAL JOINT COMMISSION GREAT LAKES SCIENCE ADVISORY BOARD, GROUNDWATER IN THE GREAT LAKES BASIN 1 (2010).

493 N.G. GRANNEMANN, ET AL. , supra note 15, a t 12.

494 INTERNATIONAL JOINT COMMISSION GREAT LAKES SCIENCE ADVISORY BOARD, supra note 16, at

1

495 N.G. GRANNEMANN, ET AL. , supra note 15, at 12.

496 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22194.

497 U.S. E nvironmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (2013), available at: http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/Watershed Connectivity Report?O penDocument.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

611 groundwater was virtually ignored in the proposed rule as having no impact or role in the hydrologic system when, in reality, it is absolutely crucial. Therefore, to fulfill the purposes of the CWA an d the proposed rule the inclusion of “shallow” or “tributary” groundwater is necessary and cannot be exempt.

Similarly, within the discussion of “other waters,” the agencies correctly determined that the “watershed is a reasonable and technically appropria te extent on which to identify waters that together may have an effect on the chemical, physical, or biological integrity of a particular (a)(1), through (a)(3) water.” 498 When defining the term watershed, the

EPA’s website states that “a watershed is the ar ea of land where all of the water that is under it or drains off of it goes into the same place” (emphasis added). 499 Therefore, if the EPA/Corps use a watershed to define Justice Kennedy’s remark of “in the region,” then they must include specific groundwat er types by adjacent or tributary jurisdiction or within the “other waters” category. (p. 4

– 5)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United

States. The e xclusion for groundwater in the final rule does not affect this longstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Techni cal Support Document

.

7.933 II. The EPA/Corps have the authority under the CWA to include certain forms of groundwater within the definition of “waters of the U.S.”

A. Case Law Supports “Tributary” Groundwater:

Courts have reached inconsistent conclusions over the issue of groundwater

–– most courts find the language of the CWA to be ambiguous. 500 Courts have traditionally acknowledged that the CWA does not generally regulate discharges to groundwater; however, courts have held that the CWA can extend federal jurisd iction to groundwater that is hydrologically connected to surface waters designated as “waters of the U.S.” 501

The Supreme Court, citing Senate Committee Report 92

- 414 in United States v. Riverside Bayview Homes

, 502 stated that Congress broadly defined the ter m “waters of the U.S.” and that Congress recognized the importance of controlling pollution at its source to restore the integrity of our nation’s waters. 503 According to the court’s interpretation in Riverside Bayview Homes, Inc . and SWANCC , CWA jurisdictio n reaches to all waters linked to navigable waters. 504 Therefore, groundwater connections constitute a

498 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22212.

499 EPA, What is a Watershed? (2012), available at: http://water.epa.gov/type/watersheds/whatis.cfm .

500 66 Fed. Reg. 2960, 3016 (Jan. 12, 2001).

501 Robert L. Glicksman & Matthew R. Batzel, Science, Politics, Law, and the Arc of the Clean Water Act: The Role of Assumptions in the Adoption of a Pollution Control Landmark, 32 Wash. U. J.L. & Pol’y 99, 112 (2010).

502 United States v. Riverside Bayview Homes , 474 U.S. 121 (1985).

503 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22191.

504 Brian Knutsen, supra note 5, at 188.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

612 “significant nexus” within the meaning of the caselaw if they can be determined to have a significant connection to jurisdictional surface waters. 505

Many co urts have found sufficient justification for CWA jurisdiction over “tributary” groundwaters, and this proposed rule provides an opportunity to clarify the position of the agencies and allow for greater consistency. 506 For instance, as stated by the court in Idaho

Rural Council v. Bosma , “whether pollution is introduced by a visible, above

- ground conduit or enters the surface water through the aquifer matters little to the fish, waterfowl, and recreational users which are affected by the degradation of our nat ion’s

rivers and streams.” 507 As Susan Griffithe analyzed, after reviewing the purpose of the CWA, the Bosma court held that “there is little doubt that any polluted water ultimately affecting the quality of regulated waters should also be regulated.” 508

More recently, in Hernandez v. Esso Standard Oil Company , the court held that the CWA extended federal jurisdiction over groundwater that was hydrologically connected to surface waters designated as “waters of the U.S.” 509 The Hernandez court stated that

pre vious cases concluding that the CWA provides no federal jurisdiction over groundwater do “not preclude the act from applying to the regulation of ‘tributary groundwater’...which allegedly migrates from groundwater back into surface water.” 510

The Hernandez cou rt explains that although Congress did not generally regulate groundwater under the CWA, they did not exclude any regulation if the introduction of pollutants in groundwater would have adverse impacts to surface waters. 511 (p. 5

– 6)

Agency Response: The agencies have consi stently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final rule does not affect this longstanding interpretation as the agencies have never co nsidered the groundwater itself to be a “water of the United States.” However, it has also been the longstanding interpretation of the agencies that discharges of pollutants to “waters of the United States” via groundwater with a direct hydrologic connect ion to surface waters may be subject regulation by the CWA. See summary response for section

7.3.6 of this RTC and the Technical Support Document

.

7.934 B. Agency History Under the CWA Supports “Tributary” Groundwater:

The statement within the proposed rule tha t the “agencies have never interpreted ‘water of the United States’ to include groundwater and the proposed rule explicitly excludes groundwater” contradicts agency history. 512 The EPA, in their regulations for NPDES permits of storm water discharges explain ed that groundwater will be regulated if it is

505 Id

. 506 Brian Knutsen, supra note 5, at 192.

507 Idaho Rural Council v. Bosma , 1 43 F. Supp. 2d 1169, 1179 (D. Idaho 2001).

508 Susan Griffithe, Isolating the Problem by Finding the Connection: The Proper Approach to Regulating

Groundwater Under the Clean Water Act: Idaho Rural Council v. Bosma , 143 F. Supp. 2D 1169 (D. Idaho 2001), 27

S . Ill. U. L.J. 437, 450 (2003).

509 Hernandez v. Esso Standard Oil Company , 599 F. Supp. 2d 175, 180 (D.P.R. 2009).

510 Id.

511 Id . at 181.

512 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22218.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

613 hydrologically connected to a nearby surface water. 513 In their proposed regulation regarding NPDES permits to CAFO’s, the EPA explained that “[a]t the least, there is no evidence that in rejecting the explicit extension of the NPDES program to all ground water Congress intended to create a ground water loophole through which the discharges of pollutants could flow, unregulated, to surface water.” 514 The EPA explicitly stated that the “EPA repeatedly has taken the position that the CWA can regulate discharges to surface water via ground water that is hydrologically connected to surface waters.” 515 The EPA clearly has taken the position of interpreting “waters of the U.S.” to include certain types of groundwater. The a gency has provided no justification for its change in policy to allow for the public to have the opportunity to comment on the change.

Ultimately, if the EPA/Corps provide such clarity over “waters of the U.S.” to include groundwater connections in the pro posed rule, then the courts will be able to extend Chevron deference in upholding the rule. 516 The EPA has the authority, under the CWA, to include and clarify jurisdiction over the matter of groundwater. 517 (p. 6

– 7)

Agency Response: Please see summary response at 7.3.6, th e Technical Support Document, and 12.3. The issue of whether a discharge to groundwater that is hydrologically connected to a waters of the U.S. is regulated as a point source discharge under NPDES is distinct from the question of whether the groundwater itself is a jurisdictional waters of the U.S.

7.935 III. Recommendations for groundwater to be included in the “other waters” category of the proposed rule.

A. Need for Clarity in Defining “Isolated” versus “Tributary” Groundwater:

The rule needs to clarify the distinction between “isolated” groundwater and “shallow” or “tributary” groundwater, and the latter term(s) must be included into the jurisdiction of “waters of the U.S.,” or at least included in the category “other waters,” as defined in the proposed rul e. Only “isolated” groundwater, defined as without hydrologic connection to downstream “waters of the U.S.,” should be included in the exemptions [section (b)] of the proposed rule. 518 As described in the comments above, the agencies have a longstanding trad ition of regulating groundwater with hydrologic connections to downstream surface waters on a case by case basis.

Groundwater with hydrologic connection to surface waters could be defined in the rule either as “shallow,” as scientific studies define them, or as “tributary,” as the courts have referred to them. The EPA/Corps could classify groundwater as “tributary” according to the time a pollutant would reach surface waters within a specific number of years (e.g., forty). 519 Including “tributary” groundwater under “other waters” would leave the

513 Susan Griffithe, supra note 32, at 453.

514 66 Fed. Reg. 2960, 3016 (Jan. 12, 2001).

515 Id.

516 Brian Knutsen, supra note 5, at 188.

517 33 U.S.C. 1251, et seq.

518 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22218.

519 Mary Christina Wood, supra note 6, at 618. Forty is the number of years recognized by the Supreme Court of Colorado for groundwater to be considered “tributary.”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

614 flexibility of the EPA to issue, under section 402, NPDES permits for point source pollution into groundwater that would have a significant impact for jurisdictional surface waters. (p. 7

– 8)

Agency Response: Please see summary response at 7.3.6, the Technical Support Document, and 12.3. The issue of whether a discharge to groundwater that is hydrologically connected to a waters of the U.S. is regulated under the NPDES program as a point source discharge is distinct from the question of whether the groundwater itself is a jurisdictional waters of the U.S.

7.936 B. Need for Inclusion of “Tributary” Groundwater in “Other Waters” Category:

The EPA/Corps need not extend broad general authority over groundwater. Rather,

certain groundwater types should be listed under the “other waters” category in the proposed rule. The proposed rule states that “the agencies propose that ‘other water’ (those not fitting in any of the above categories) could be determined to be ‘waters of the

U nited States’ through a case

- specific showing that, either alone or in combination with similarly situated ‘other waters’ in the region, they have a ‘significant nexus’ to a traditional navigable water, interstate water, or the territorial seas.” 520 The “sig nificant nexus” test would be satisfied if water flowed through groundwater to surface waters (i.e., “shallow” or “tributary”) which would significantly impact the chemical, physical, or biological integrity of “waters of the U.S.”

If the EPA/Corps wants t o clarify wetlands, adjacent waters, and tributaries as being “waters of the U.S.,” then they must list “tributary” groundwater under the “other waters,” allowing case by case analysis of groundwater jurisdiction under the CWA.

Groundwater is fundamental t o the hydrology of watersheds. Groundwater is a primary source of streamflow for some waters of the U.S., and the southwestern U.S. relies heavily on groundwater to feed surface water streams. The USGS states that much of the groundwater contamination occu rs in shallow aquifers making groundwater a major

contributor to the contamination of surface waters. 521 Collaborating with USGS, EPA/Corps could use the best available base

- flow methods to calculate the amount of streamflow derived from groundwater within c ertain watersheds, thereby assisting in defining which groundwater should be included in the “other waters” category. 522 (p. 7

– 8)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the wa ters of the United States. The exclusion for groundwater in the final rule does not affect this longstanding interpretation as the agencies have never considered the groundwater

520 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed. Reg. at 22188, 22189.

521 Tho mas C. Winter, Judson W. Harvey, O. Lehn Franke, & William M. Alley, Ground Water and Surface Water: A Single Resource: U.S. Geological Survey Circular 1139, VI (1998), available at: http://pubs.usgs.gov/circ/circ1139/pdf/circ1139.pdf .

522 Id at 12. The USG S conducted research about the “groundwater component of streamflow” and was able to conclude from a sampling of 24 regions nationwide (54 streams over a thirty

- year period) that an average of 52% of the streamflow was contributed by groundwater; one basin actually received 90% of its average annual flow from groundwater.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

615 itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.937 Conclusion:

As water resources become more scarce, flexible administrative water management systems under the CWA are necessary to protect the future of our economy, drinking water supplies, and aquatic ecosystems. Ultimately, groundwater under the CWA should not be exempted because of its difficulty or due to the negative comments of past rulemaking procedures. Accurate science, case law, and legislative and agency history

reveal that not allowin g for a case by case review of “tributary” groundwater will weaken the proposed rule and the CWA by creating a groundwater loophole.

If the EPA/Corps exempts groundwater during this rulemaking procedure they will put themselves in the contradictory positio n of being responsible for protecting surface waters without the authority to protect those waters that provide the streamflow for their existence, groundwaters

–– you cannot protect one without the other. The agencies should

not undermine the intent and bro ad goals of the CWA by exempting all groundwater, setting a dangerous precedent for future management of our nation’s waters. (p. 8)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final rule does not affect this longstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for sect ion 7.3.6 of

this RTC and the Technical Support Document

.

Sunny Washburn (Doc. #7368)

7.938 In the proposed rule I see that you clarified ditches that dry out, systems that are irrigated and return to upland, and wastewater treatment system as not being waters of the state unless they meet a certain criteria. I propose you add green infrastructure to the list. Green infrastructure is a stormwater treatment and conveyance system that is vegetated and consists of facilities such as swales, ponds, rain gardens, and vegetated filters or basins. They are used in both public and private infrastructure to treat rain water (stormwater) that is created by impervious surfaces such as parking lots and roadways. Green infrastructure typically infiltrates into the ground wate r and will have an overflow that discharges to either a piped storm system or directly to a waterway or ditch. These systems should not be considered waters of the state as defined by your definition and it should be made clear (er) since they are seasonal in nature and only hold water temporary and tend to dry out. (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control features, including green infrastructure, as waters of the U.S., please see summary response at 7.4.4.

City of Pittsfield (Doc. #7629)

7.939 At a minimum, the rule should include the following provisions that are priority concerns for local governments:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

616  Separate municipal storm sewers will continue to be regulated and permitted under Section 402 of the Clean Water Act, and shall n ot be considered, either in their entirely or any individual feature thereof, Waters of the U .S .

 Water delivery, reuse, and reclamation systems and facilities shall not be

considered waters of the U.S.

 Wastewater treatment systems and all associated infr astructure shall not be considered waters of the U.S. (...) (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2. Finally, please see summary response 7.1 concerning the waste treatment system exclusion.

Merrill Hewson Smith (Doc. #8323)

7.940 The proposed rule will codify for the first time what types of waters and features are outside the purview of CWA, including artificial reflecting pools, small ornamental

waters, water

- filled depressions at construction sites and the like. But the agencies have also added groundwater, an elemental part of the hydrological cycle and an es sential link between wetlands, tributaries and other waters. Why in a list that borders on insignificance was something this significant added? The proposed excise language is final in its import, “Specifically, the agencies propose that the following are not “waters

of the United States” notwithstanding whether they would otherwise be jurisdictional under section (a)

. 523 Even if groundwater is part of a group of waters “similarly situated where they perform similar functions and are located sufficiently clos e together or when they are sufficiently close to a jurisdictional water” 524 groundwater will, by hydrologic alchemy, be separated and outside the protection of CWA. The agencies appear to have lost sight of the objectives of CWA. A categorical elimination o f groundwater from CWA protection puts the nation’s water quality and supply, public health and environment at risk. (p. 1)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters o f the United States. The exclusion for groundwater in the final rule does not affect this longstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.941 This comment letter will show how jurisdictional scope, scientific research, policy ramifications, and ecological need support removing groundwater from the proposed

rule’s list of “waters and other features ” in the section entitled “Waters that are not

‘waters of the United States’ 525

.

523 Id. I. Waters that are not “Waters of the United States”, fourth paragraph. Reference to “(a)” is within the section “Other Waters” that are defined as, those that are not jurisdictional as a single category.

524 Id. Language under “H. “Other Waters”.

525 Definition, supra note 3.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

617  Courts have extended CWA protections to groundwater, especially in cases where the discharge of pollutants affect the waters of the United States that are directly subject to CW A regulation. 526

 EPA’s scientific compilation of data from 1,000 peer

- reviewed reports emphasize groundwater’s integrated role throughout the hydrology and biogeochemical

functions of wetlands and other waters. 527

 EPA’s SAB has specifically counseled the agen cies to eliminate groundwater
from the list of “Waters that are not ‘waters of the United States.” 528

 Groundwater is a national resource that supplies over 50% of our drinking water, more than 90% in rural areas. It supplies over 50% of agricultural irrigation and it supplies between 30

- 40% of the flow of the nation’s streams. 529

 Groundwater is not sufficiently protected or managed. 530 It is a resource critical to the nation’s future, both as the primary source of drinking water, agricultural irrigation a nd as a significant source of stream flow. Because of these crucial human welfare and ecological functions, and because of the acknowledged difficulty of groundwater remediation, protecting and maintaining the quantity and quality of the nation’s groundwat er supplies must receive a high priority. 531

 Lines of demarcation regarding CWA have been blurred by recent Supreme Court rulings. While states can enact or amend laws to protect water resources that have lost federal protection over two

- thirds of states, 36 in all, have laws that restrict authority of state agencies to regulate waters left unprotected by CWA. 532 These restrictions take the form of absolute or qualified prohibitions that require state law to be ‘no more stringent than’ federal law. If groundwat er is deemed not ‘a water of the United States’ and outside the scope of CWA it could fall outside the scope of any additional state protection. The proposed rule will leave groundwater less protected at a time when we need to protect it more.

The agencies ’ proposed rule is an ambitious attempt to cohere the language and intent of legal rulings and scientific principles that govern gradations of the interconnectedness of our water system. This is not a seamless composition, in part because the Supreme

526 Anna Makowski, Beneath the Surface of the Clean Water Act: Exploring the Depth of the Act’s Jurisdictional Scope of Groundwater Pollution, Oregon Law Review, volu me 91, issue 2, 2012. p. 507

527 Claudia Copeland, EPA and the Army Corps’ Proposed Rule to Define “Waters of the United States”, Congressional Research Service, September 10, 2014, p. 6.

528 SAB draft comments addressed to EPA Administer Gina McCarthy, dated September 17, 2014. EPA

- SAB

14_00X. The report considers “the adequacy of the scientific and technical basis of the EPA’s proposed rule titled

Definition of Waters of the United States Under the Clean Water Act.”

529 Committee on Valuing Ground Water, National Research Council, Valuing Ground Water: Economic Concepts and Approaches, 1997. p. 122.

530 NASA and University of California, Irvine, study, “Satellite Study Reveals Parched U.S. West Using up Underground Water”, press release, July 24, 2014http:// www.nasa.gov/press/2014/july/satellite

- study

- reveals

parched

- us

- west

- using

- up

- underground

- water/#.VDmcg0vHiQQ. Last visited, October 13, 2014.

531 Committee on Valuing Ground Water, supra note 12, p. 122.

532 Environmental Law Institute, State Constraints: Sta te

- Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act, May 2013. p. 12.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

618 Court 533 rulings do not provide consistent guidance, and in part because scientific principles of hydrology governing water do not support imposed or finite borders. Water flows. By its very nature water needs to be evaluated on both an ecologically macro and

mic ro level. The language of science is not the language of law as is readily apparent in the agencies’ attempt (of necessity) to frame “significant nexus” as a scientific term. That the agencies must act is understood; they have lost jurisdiction over integr al parts of our water system, and litigation is stymying their ability to manage our waters.

In the proposed rule the agencies have attempted to clarify the interconnectedness of tributaries, wetlands, and other waters and effects these connections have on the health of

downstream waters. 534 The agencies must avoid expediencies and insure that their actions reflect the CWA’s primary purpose, “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” 535 Congress articulate d that the intent of the Act was “to establish a comprehensive long

- range policy for the elimination of water pollution.” It directed the EPA Administer to, “prepare and develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground

waters .” 536

In the quest to provide the public with clarity, certainty and predictability as to what waters are and are not subject to the jurisdiction of CWA, the agencies have erred in eliminating the potential protection of groundwater, an essential component of Congress’s original directions to the EPA. This is in direct conflict with the scientific principles they espouse.

Groundwater and surface wat er flow into one another; pollute one and the discharge can

contaminate the other. 537 They are a single resource; one cannot be developed without affecting the other. (p. 2

– 4)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep g roundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final rule does not affect this longstanding interpretation as the agencies have never considered the groundwater

itself to be a “water of the Un ited States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.942 The agencies’ contention that groundwater has never been considered “waters of the United States” does not hold up to jurisdictional and legal history.

“Th e agencies have never interpreted “waters of the United States” to include groundwater and the proposed rule explicitly excludes groundwater, including groundwater drained through subsurface drainage systems.” 538

533 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) , 531 U.S. 159 (2001), Rapanos v. United States , 547 U.S. 715 (2006).

534 Copeland, supra note 9, summary, first page.

535 33 U.S.C. §1251(a)

536 33 U.S.C. §1252(a)

537 Makowski, supra note 8, p. 2.

538 Definition, supra note 1, in section I. Waters that are not “waters of the United States.”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

619 Without a doubt, CWA does not regulate ground water comprehensively 539 , but the goal and purpose of CWA includes groundwater as needing of protection. And court cases have supported that. These rulings do not reflect a majority of cases but they remove ‘never’ from the agencies’ justification to exile g roundwater.

Plaintiffs have successfully sought redress for contaminated groundwater since CWA was

enacted. 540 A number of courts have interpreted the scope of CWA using Congressional intent and have found that NPDES permits are required when discharges to g roundwater result in the migration of pollutants to hydrologically connected surface waters. 541 In

Idaho Rural Council v. Bosma 542 , the court stated, “whether pollution is introduced by a visible, above

- ground conduit or enters the surface water through the aq uifer (groundwater) matters little to the fish, waterfowl, and recreational users which are affected by the degradation of our nation’s rivers and streams.” 543 Courts have weighed in with the understanding that the relationship between groundwater and surfac e water is porous and CWA protection inclusive. 544 In particular the agencies would excise groundwater even in cases where comingling and function is obvious. 545 In light of the agencies’ professed interest in synthesizing current scientific understanding of h ydrologic connectedness into the proposed rule, a permanent excising of groundwater does not hold up to scrutiny.

Congress’s intent for CWA was broad; it recognized that protecting navigable streams and rivers from pollution and other degradation requires protecting the whole watershed, not piecemeal parts. (p. 4

– 5)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the f inal rule does not affect this longstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.943 The propose d rule would be different if the agencies relied on a deliberative science

driven rulemaking process.

539 Id. Footnote #3, p. 496. Other federal statutes that cover groundwater include: Safe Drinking Water Act, 42 U.S.C. §§300f

- 300j, Resource Conservation and Recovery Act, 42 U.S.C. §§6901

- 6992k, Comprehensive Environmental Response, Compensation, and Liability Ac t (CERCLA), 42 U.S.C. §§9601

- 9675.

540 Id. p. 496.

541 North California River Watch v. City of Healdsburg , No. 04

- 15442, (2006); Idaho Rural Council v. Bosma , 143 F.Supp. 1169, 1180 (D. Idaho 2001); United States v. Banks , 115 F.3d 916 (11th Cir. 1997); Friend s of Santa Fe County v. LAC Minerals, 892 F. Supp. 1333, 1357 (D.N.M. 1995); Washington Wilderness Coalition v. Hecla Mining Co. , 870 F. Supp. 983,989 (E.D. Wash. 1994); Sierra Club v. Colorado Refining Co ., 838 F. Supp. 1428, 1434 (D.Colo. 1993). United S tates Steel Corp. v. Train , 556 F.2d 822(7th Cir. 1977). Southern Environmental Law Center just gave notice to Duke Energy that it plans to enforce CWA to clean up coal ash pits on the Cape Fear

River.

542 Idaho Rural Council v. Bosma.

543 Idaho Rural Council, 143 F. Supp. 2d at 1179

- 80, as reported in Makowski, supra note 8, p. 512.

544 SWANCC and Rapanos may be interpreted to affect these determinations but I am addressing the incorrect use of

‘never’.

545 Id. Language under “H. “Other Waters”.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

620 This statement is supported by the scientific studies used to inform the agencies in the drafting of this rule. As stated before, the necessity to coalesce legal rulings and scientific standards does not flow together easily.

In developing the proposed rule, the agencies committed to a science

- driven process. To begin, they “relied on a draft synthesis of more than 1,000 peer

- reviewed scientific

repo rts detailing the current scientific understanding of the connections or isolation of

streams and wetlands.” 546 The report integrates groundwater and surface water throughout its 331 pages. It states that “specific types of connections considered in this

rev iew include transport of physical materials such as water, wood, and sediment; chemicals such as nutrients, pesticides, and mercury; movement of organisms or their seeds or eggs; and hydrologic and biogeochemical interactions occurring in surface and

groun dwater flows, including hyporheic zones and alluvial aquifers.” To be clear about its scope, it states, “Information about connections among water bodies of the same type that do not influence the condition of downstream waters, are considered out of scope , as

are non

- peer

- reviewed sources.” 547 Groundwater is included because it is integral to the report’s purpose, a study of connectivity.

Groundwater is scientifically proven to be an inseparable component in our watersheds, including wetlands that may have n o visible connection with downstream waters. Nowhere in the compilation of the 1,000 reports is there discussion or cause to reflect dividing surface water and groundwater, in fact it is just the opposite. The specific references to the overlap of groundwa ter and surface water are too extensive to list but I would call attention to the clear visual representation that appears in figure 3

- 5, figure 3

- 6 of the report. 548

The agencies sent the connectivity assessment report to the EPA’s own Science Advisory

Bo ard (SAB) for review and a final report. 549 They have stated that they would not publish a final report until the SAB report was completed. 550 In its second draft of comments, dated September 17, 2014, the SAB speaks directly to groundwater connectivity and bi ological connectivity. Specifically, the SAB recommendations and findings include:

 “The available science supports defining adjacency or determination of adjacency on the basis of functional relationships, not on how close an adjacent

546 U.S. EPA, Office of Research and Development, connectivity of streams and wetlands to downstream waters. (Italics added) While the report is very in depth, I would direct your attention to pages 48

- 51 as an example of the integration of surface and groundwater.

547 Id. p. 3 5. Italics added.

548 EPA report, supra 28, pp. 48

- 51. Figure 3

- 5, Cross

- section showing major hydrologic flow paths in a stream

watershed system, Figure 3

- 6, Hyporheic zone.

549 SAB. See supra note 8. SAB’s draft, addressed to EPA Administer Gina McCarthy, is dated September 17, 2014.

EPA

- SAB

- 14_00X. In an earlier draft, dated June 5, 2014, SAB recommended that the report more explicitly address the cumulative and aggregative effects of streams, groundwater systems, and wetlands on downstream waters. “In parti cular, the Report should contain a discussion of the spatial and temporal scales at which streams, groundwater systems, and wetlands are functionally aggregated .” And later, it states, “There should be more emphasis in the conceptual framework on the impor tance of groundwater connectivity and biological connectivity.”

EPA

- SAB

- 14

- xxx.

550 32Copeland, supra note 9, at p. 6.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

621 water is to a navigab le water. The Board also notes that local shallow subsurface water sources and regional groundwater sources can strongly affect connectivity.” 551

 “Some of the exclusions listed in the proposed rule do not have strong scientific justification and the SAB reco mmends that several should be reconsidered. For example, the proposed rule excludes groundwater. The available science, however, shows that groundwater connections, particularly via shallow flow paths in unconfined aquifers, are critical in supporting the hydrology and biogeochemical functions of wetlands and other waters. Groundwater also

connects waters and wetlands that have no visible surface connections.” 552

That is a clear statement for inclusion. But, the proposed rule is not only a deliberative

scienc e

- driven assessment. (p. 5

– 6)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final rule does not affect this longstanding interpretation as the ag encies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.944 “If politics were to trump science in the rulemaking process, the likelihood of a protective rule would not be promising.” 553

Our groundwater is being overused and under

- protected. I will highlight just one of the leading factors in the health of our groundwater: non

- point agricultural pollution. In a

2008

- 9 national rivers and streams assessment, EPA reported that the most comprehensive indicator of water body health is the biological condition. When the stream is healthy, the chemical and physical components of the stream are also in good condition. The current data on the biological condition of our nation’s rivers and streams

are:

 21% of the nation’s rivers and stream length are in good biological condition,

 23% are in fair condition,

 55% are in poor condition. 554

Levels of phosphorus and nitrogen are widespread: 40% of rivers and stre ams have high levels of phosphorus, and 28% have high levels of nitrogen. The report states that “our rivers and streams are under significant stress and more than half exhibit poor biological condition. Phosphorus, nitrogen, and streambed sediments have w idespread and severe

551 From SAB’s September draft comments, p. 3.

552 Id. p. 3.

553 Copeland, supra note 9, at p. 14, quoting James Murphy, “Rapanos v. United States: Wading through Murky Waters,” National Wetlands Newsletter, vol. 28, no. 5, 2006, p. 19.

554 EPA, Office of Wetlands, Oceans and Watersheds, National Rivers and Streams Assessment 2008

- 9.

EPA/841/D

- 13/001.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

622 impacts; reducing levels of these constituents will significantly improve the biological

health of rivers and streams.” 555

A recent U.S. Geological Survey found that industrial agriculture is the source of more than 70% of the pollution in the Mississippi River basin, which extends from the Appalachians to the Rockies. 556

In a new study conducted by NASA and the University of California, Irvine, scientists found that between December 2004 and November 2013, the Colorado River Basin lost

nea rly 53 million acre feet of freshwater, of which three

- quarters of the total was from groundwater. One specialist was quoted as saying, “We thought that the picture could be pretty bad, but this is shocking.” 557 The Colorado River Basin is the water lifeline of the western United States. “The rapid depletion rate will compound the problem of short supply by leading to further declines in stream flow in the Colorado River. Combined with declining snowpack and population growth, this will likely threaten the lo ng

- term ability of the basin to meet its water allocation commitments to the seven basin states and

to Mexico.” 558

Our two major river basins are under critical stress, one from nonpoint agricultural pollution and one from overuse. Without looking more deepl y or broadly, we see that this is not the time for the agencies to step back from their responsibility, to attempt to make a problem go away through hydrologic alchemy. As a nation, we have failed to be good

stewards of the CWA. This is not the time to ste p away from its goals but to step toward them. (p. 6

– 7)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final r ule does not affect this longstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.945 How can the agenc ies better reflect the goals and purposes of CWA? The statute was ambitious in scope and specific about deadline for implementation, but we, agencies, people, industries, have not coalesced around the importance of this task.

In 1984, the Office of Technol ogy Assessment issued a report entitled “Protecting the Nation’s Groundwater” stated, ”groundwater legislation is critical because this is the last part of the hydrological cycle to be regulated, and the hydrological imperatives require it to be integrated into the pattern of management immediately.”

Until we can effectively establish comprehensive protection of groundwater we must support the goals of CWA in ways that are available to us and not further diminish control over this critical resource. I urge the agencies to strike “groundwater” from the proposed rule’s language regarding “waters that are not ‘waters of the United States’.”

555 Id.

556 U.S. Geological Survey. http://www.ewg.org/agmag/2013/04/epa

- study

- points

- ag

- pervasive

- river

- pollution

. 557 NASA, supra note 13.

558 Id.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

623 That part is an easy excise. We need to clearly show that the main constituent is the American people. We, the people, can not live without water. (p. 8)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final rule does not affect this

lo ngstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

Franconia Township (Doc. #8661)

7.946 The propose d rule, in section (b), excludes "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" among other features listed in the section. While such systems have traditionally been excluded

from CWA jurisdiction, we believe that, due to the expansive nature of the proposal, the agencies should also exclude other constructed water management and treatment infrastructure with similar attributes to these waste treatment systems. These facilities

coul d include water reuse and recycling ponds, treatment lagoons, and other appurtenances; artificially constructed wetlands designed to treat agricultural or stormwater runoff (e.g. green infrastructure) used and managed to improve water quality;

and artifici ally constructed groundwater recharge basins designed to percolate surface water into groundwater basins. All of these features would revert to dry land if application of water were to cease and should be included in the list of features identified

in the proposed rule as excluded from the definition of "waters of the U.S." (p. 5)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2. Also plea se see summary response at 7.1 concerning the waste treatment system exclusion.

Paul Wetzel (Doc. #9219)

7.947 Man

- made waters are not waters of the US even if wetland vegetation develops in th em (pond, upland ditch, detention pond, farm pond, waters resulting in uplands due to ongoing construction, etc.). I have yet to see a man

- made pond or upland ditch that does not contain at least some wetland vegetation. This includes aesthetic ponds, farm ponds, water detention ponds and ditches excavated in upland areas. These areas containing wetland vegetation should not be considered WOUS, even if they meet the definition of a wetland. Although a hydric soil may not be present, soils could be assumed u nder the 1987 manual if dominated OBL veg. or OBL and FACW veg. with an abrupt wetland boundary. If a hydric should does develop, which it will eventually, these wetlands that develop in non

-

jurisdictional waters should NOT be considered WOUS, even if they meet the definition of a wetland. This should hold true for any man

- made wetlands created in upland areas, whether it is for habitat or water detention, it should not be

considered a water of the US.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

624 If these waters (ponds, ditches) are constructed in a W OUS, then, yes, they should be considered a WOUS as well and jurisdictional (e.g. pond excavated in a jurisdictional wetland, impounded tributary, etc.).

Non

- jurisdictional man

- made waters should become WOUS ONLY if they are

abandoned and become naturalize d. However, we need a comprehensive definition of abandonment, e.g. XX number of years have passed since put to intended use. This should not apply to an abandoned development that sat idle for several years before someone purchased it though. For example, an old industrial plant site containing water detention ponds and other man

- made non

- jurisdictional waters. If this site were left idle for several years before someone purchased it, these nonjurisdictional waters should

remain non

- WOUS. I am not sure at what point a non

- WOUS could be considered abandoned, this should be addressed in some manner. If a farm pond was abandoned 50 years ago and a woods developed around it and wetlands reverted adjacent to it and the area is effectively naturalized, this would be considered truly abandoned. This is exactly the situation I have seen firsthand in NW Ohio. Somewhere between sitting idle and truly abandoned is a big gray area that needs to be described/defined in terms of abandonment

and man

- made non

- WOUS. (p. 1)

Agency Response: The agencies do not feel that it would be appropriate to create an exclusion spe cific to “man

- made waterbodies” , as the term “man

- made” would potentially apply to a large number of aquatic features and exclude many waters the agenices have historically con sidered jurisdictional

. Given the extensive human modification of watercourses and hydrologic systems throughout the country, it is often difficult to distinguish between natural watercourses and watercourses that are wholly or partly modified or construct ed. Many features that potentially convey waters and/or pollutants to (a)(1)

- (a)(3) waters have been historically created or altered, such as channelized streams and impounded areas, and to add a broad

exclusion for these waters to the list of excluded fea tures would not improve regulatory clarity, nor be consistent with the goals of the statute. The agencies believe the expanded exclusions for cooling ponds, stormwater control features, and wastewater recycling structures created in dry land, as well as ce rtain types of ditches, provide clarity regarding many of the features that prompted these comments, as well as the necessary environmental safeguards

.

Floyd County Farm Bureau, Inc. (Doc. #9673)

7.948 Another area of great concern is the creation of "exemption s" for agriculture. When Congress passed the Clean Water Act, it put many exemptions in place, including several for agriculture. It is our view that the proposed exemptions in the rule are much narrower than those provided by Congress. By creating these n ew exemptions for permitting, the agencies have created the appearance that they are defining and limiting the protections provided by the Clean Water Act. Further, the exemptions provided in the interpretive rule are extremely onerous and run the risk of pushing farmers away from voluntary conservation programs. (p. 2)

Agency Response: The proposed rule does not change or add new permitting exemptions for agriculture. The CWA statutory and regulatory exemptions still apply. See summary response at 12.3 regarding how the final rule does not changeClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

625 permitting requirements for agriculturally

- related NPDES discharges. Additionally, the Interpretive Rule was withdrawn and such comments are outside the scope of the final rule. See compendium section 14.2 for responses to comments on the Interpretive Rule.

Minnesota Association of County Agricultural Inspectors (Doc. #10970)

7.949 Our group's primary concern is the control of noxious weeds and invasive species. If the change in the definition results in landowners needing to get permits to use pesticides to control weeds, insects and diseases it would result in less effective control being done. This would create greater negative impacts on water quality, than what is currently being

allowed. There has been some cl arification on this issue, but as we read the wording, we feel that this exemption is far from guaranteed in the area of noxious weeds and other agricultural pest controls. In general it would also generally potentially make farming much more costly and di fficult. (p. 1

– 2)

Agency Response: See summary response at 12.3 . The final rule does not change or impose new requirements for complying with the NPDES regulations for pesticides and the pesticide general permit (PGP).

Weld County (Doc. #12343)

7.950 Under [the new] exclusi on, water that only stands or pools in a ditch is not considered perennial flow, and therefore, any such upland ditch would not be subject to regulation. Fed. Reg. Vol. 79 No. 76 at 22203.

However, this does not clarify how long the water may stand or pool before it becomes regulated. This exclusion also does not clarify whether water which stands and pools in places and flows in others would be regulated. As a part of the irrigation necessary to farm in Colorado, water often pools when fields are being irr igated. The roads that are maintained by the county and laid out in a grid pattern provide barriers where this water collects. Pursuant to the definition above regarding standing or pooling water, the County's borrow pits should be exempt. (p. 9)

Agency Response: See summa ry response for section 6.2 in this RTC.

7.951 In a further exclusion the agencies state:

Ephemeral features located on agricultural lands that do not possess a bed and bonk are not tributaries. The defined bed and bank no longer exists due to past normal farm ing practices such as plowing or discing and these practices often

pre

- dote the CWA. Such farm field features are not tributaries even though they may contribute flow during some rain events or snowmelt. Fed. Reg. Vol. 79 No.

76 at 22204.

However, this als o does not take into account that the flow of water and the extent to which that flow contributes to the general hydrological cycle is not controlled simply by weather events. In the Western United States, large amounts of water are relocated through compl ex irrigation systems. This transforms land that would otherwise be unused into productive farmland.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

626 The rule further states that areas which would revert to uplands if irrigation ceased are to be excluded. In Colorado, the majority of land is arable only because of the irrigation that brings water to it. With the exception of natural waterways which existed prior to the settlement of Colorado, all of the land is upland. If this is the case, then essentially all agricultural land and all water conveyances that serve agriculture would be exempt. Further, roadside ditches and borrow pits that are built through this farmland and are full of irrigation tail water would be exempt. The difficulty with this is again, the lack of a clear definition of the term "upl and." (p. 9)

Agency Response: The agencies have deleted the term “uplands” in response to the confusion the term created and have instead utilized the term “dry land.” This phrase appears in the 1986 and 1988 preambles, and the agencies believe the term is

well understood based on the more than 30 years of practice and implementation. But in keeping with the goal of providing greater clarity, the agencies clarify that “dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers , wetlands, lakes, ponds and the like. However, it is important to note that a “water of the United States” is not considered “dry land” if it lacks water at a given time. Similarly, an area remains “dry land” even if it is wet after a

rainfall event. The agencies also here clarify their longstanding view that only the specific land being directly irrigated that would revert dry land should irrigation cease is exempt; it is not the case that all waters within watersheds where irrigation
occurs are exempt. See 7.3.1.

North Carolina Water Quality Association (Doc. #12361)

7.952 I. Add an Express Exclusion for Stormwater Treatment and Conveyance Systems

Many common features of MS4s and other stormwater treatment and conveyance systems including many stormwater conv eyance ditches and settling basins

- are expressly excluded from regulation under the proposed definition of waters of the United States. However, the jurisdictional status of some stormwater management features is potentially unclear. One example is constru cted wetlands. These BMPs often are virtually indistinguishable from natural wetlands, notwithstanding that they are constructed in uplands and carefully engineered to perform important stormwater management functions. The rule must clarify that constructe d wetlands, and all other stormwater BMPs, are not subject to regulation as jurisdictional waters of the United States.

Stormwater management systems are vitally important to public safety and water quality. They warrant an express and unambiguous exclusio n in the rule. The exclusion should clarify that no purposefully constructed stormwater management feature will be regulated

as a water of the United States. The exclusion

- should apply whether the feature is part of a larger stormwater system or is a stan dalone BMP, and irrespective of whether it is part of an MS4. The definition must also be and the many different and innovative types of stormwater BMPs. To meet these objectives, NCWQA proposes that the following exclusion (italicized text) be added to t he rule:

(2) The following are not "waters of the United States" notwithstanding whether they meet the terms of paragraphs (l)(i) through (vii) of this definition

-Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

627 (vi) Stormwater management systems or features, including all portions of a municipal separa te storm sewer, constructed in uplands and designed or used for the purpose of collecting, treating, infiltrating, evaporating, or conveying

stormwater.

This definition would add essential clarity to any final rule. (p. 2)

Agency Response: With respect to the jurisdiction al status of stormwater control features as waters of the U.S., please see summary response at 7.4.4.

Florida Water Environment Association (Doc. #12856)

7.953 Intuitively, this exemption would seem to apply to any feature of a functioning reuse system. See 33 USC§ 1251(a). But the rule's preamble does not explain how this exemption applies to reuse systems, including systems that may not even require NPDES permits. Accordingly, for the first time ever, FWEA Utility Council members are

concerned that reclaimed w ater storage ponds, aquifer recharge systems, and other necessary features of functioning reuse systems could now be considered jurisdictional waters and/or require NPDES permits.

Utilities' concerns appear to be well

- founded. In addition to the broadly worded rule proposal, a federal appellate court recently applied the waste treatment system exemption in a manner that calls into question the availability of the exemption for treatment systems that have a state permit but lack an NPDES permit. In City of Healdsburg v. Northern California River Watch, 496 F.3d 993 (9th Cir. 2007), the Ninth Circuit Court of Appeals determined that the City of Healdsburg needed an NPDES permit to discharge treated wastewater into an abandoned rock quarry pit.

Applying the " significant nexus" test, the court found that the quarry pit was a water of the United States on two independent grounds: quarry waters would seep into the nearby Russian River via overland wetland flow and the surficial aquifer, and the quarry waters sign ificantly affected the river's "physical, biological, and chemical integrity." Id. at 995, 1001. Having made an initial determination that the quarry pit was jurisdictional, the Court then analyzed whether the quarry pit nevertheless qualified as a "waste treatment system designed to meet the requirements of the Clean Water Act." After a brief analysis, the Court determined that the pond "may be part of a waste treatment system, but it does not fall under the exemption because it is neither a self

- contained pond nor is it incorporated in an NPDES permit as part of a treatment system." I d. at 1002 (emphasis added). Based on the unique facts of that case, the Court seemed to interpret the waste treatment exemption as only applying to treatment systems that ho ld an NPDES permit. This is a nonsensical outcome for utilities that operate reuse systems, which by definition are designed to limit discharges to surface waters as a means of disposal. (p. 3

– 4)

Agency Response: See summary response at 7.1 which addresses the waste

trea tment system exclusion. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2.

7.954 EPA should categorically exempt all components of a functioning reuse system from

the rule.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

628 A primary goal of the Clean Water Act is to abate pollutant discharges. 33 U.S.C. § 1251(a)(l). In addition to treatment, the continued expansion of the reuse of reclaimed water is a primary means of realizing this goal. Accordingly, it seems that EPA would not want to adopt a rule that would impede reuse infrastructure. Florida reuse utilities hold

state

- issued permits that govern their reuse systems, and applicable State rules prohibit reclaimed water irrigation practices or discharges to groundwater that cause or contribute

to surface water impairments. See Rules 62

- 610.850(1)(a); 610.800(1), F.A.C. Thus, there appears to be no legitimate environmental objective served by including reclaimed water storage ponds, percolation ponds, or other features of reclaimed water system within the jurisdi ctional reach of the Clean Water Act jurisdiction based on the absence of an NPDES permit or for any other reason. Unfortunately, the rule proposal does not address these issues; instead, the proposal provides that the "agencies do not propose to

address t he substance of the waste treatment system exclusion and thus will leave each regulation as is .. . . " 79 Fed. Reg. at 22217. This issue needs to be addressed. The FWEA Utility Council requests that EPA categorically exempt all components of a functioning reuse system from the scope of the waters of the U.S. rule. (p. 4)

Agency Response: See summary response at 7.1 which addresses the waste treatment system exclusion. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2.

Fam ily Farm Alliance (Doc. #12983)

7.955 Arroyos

In some parts of the Southwest, water spilled from canal delivery systems ends up in the natural arroyo system, which can link to downstream tributaries of clearly navigable rivers. For example, in Southwest Colorad o, water in the Dolores Water Conservancy District can drain back to the natural arroyo system, which physically links to a tributary to the San Juan River (an interstate river which meets the definition of “navigable”). Past experience of some District ma nagers is that the Corps would claim regulatory oversight over all dry arroyos, placing additional regulatory requirements on the local municipalities and flood control agencies tasked with keeping residents safe from flooding.

The EPA and the Corps propos al would exempt some seasonal flow paths that might provide coverage for main irrigation canal systems. However, some irrigation districts have interceptor ditches (full of cattails sustained by adjacent farming) in existing rights

of

- way that sometimes le ad to natural arroyos. These interceptor ditches are similar to any roadside ditch, but lie within district rights of way and may be perceived as point sources. Likewise, some canal waste

- ways can overflow occasionally (during rain events or from canal ope rational problems) into the natural drainage system. In other areas, dam structures release water into century

- old ditch systems that can very quickly become indistinguishable from natural drainage areas as they flow into larger arroyos.

Many of our member organizations who have been managing irrigation for 100 years have effectively made arroyos that once traditionally only flowed seasonally into perennial flowing streams. We are also concerned that many acres of artificially created

wetlands that were est ablished after years of irrigation now might be considered “natural”Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

629 by regulators. Western water managers are fearful of how on

- the

- ground regulators will apply the proposed rule to areas like these in the future, long after the policy has been

crafted in distant Washington, D.C. Some of our ranchers are especially concerned about the probability of requirements for Section 404 permits and the prohibitive cost of acquiring a permit. Many arroyos that run through Western ranches have fences that must be rep aired or replaced after every high rainfall event. Others are equally concerned about the probability of a requirement for an EPA

- approved grazing plan because of cattle grazing within a drainage area. These are but a few of the very real concerns that hav e arisen as a result of the lack of clarity and certainty in the proposed rule. (p. 11)

Agency Response: See summary response 6.0 and 6.2 for discussion of jurisdictional and excluded ditches. See summary response 7.3.1 for discussion of artificially irrigated areas.

Gr ound Water Protection Council (Doc. #13055)

7.956 The recognition that groundwater is not a jurisdictional water under the CWA should not prevent the continued commitment by EPA to integrate groundwater as part of the planning approaches to municipal wastewater and stormwater management. GWPC points out that guidance and implementation of this proposed rule needs to be protective of groundwater quality. There should be a common purpose for protecting drinking water

sources under both the CWA and the Safe Drinkin g Water Act. The infiltration of stormwater runoff to groundwater should also be protective of groundwater quality. If polluted stormwater is redirected to groundwater for either disposal or shallow recharge, GWPC recommends that the two Acts not be implem ented at cross purposes and that proposed rule changes should not be interpreted to allow groundwater to be contaminated. (p. 2)

Agency Response: Nothing in the final rule changes application of the Safe Drinking Water Act. See also response at 7.3.6.

Tamara Choat (Doc . #13701)

7.957 If the proposed rule cannot be dropped, the following concerns and recommendations

should be addressed.

(...) 4. The exclusions and exemptions provided under the proposed rule are unclear and too narrow to provide protections for landowners. Clari fication is needed prior to moving forward with a rule. (p. 1)

Agency Response: In the final rule, the agencies have provided clarified information regarding features that are not considered “waters of the United States”, even where those features would otherwise meet the criteria for jurisdiction under paragraphs (a)(4) though (a)(8).

Board of County Commissioners, Lewis and Clark County (Doc. #14065)

7.958 (...) Additionally, the proposed or potential increase in the scope of those waters considered under EPA jurisdiction is al arming. Intermittent streams, low lying areas, roadside ditches, or occasional conveyances of water should not be considered “waters of the US”. (p. 1)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

630 Agency Response: The agencies disagree that intermittent streams are currently not considered jurisdictional. See the t ributary section of the preamble for a discussion of stream flow regime. The agencies are unclear what the commenter is referring to in the statement “...run

- on from low

- lying agricultural areas, and water discharges from similar lands being reclassified as jurisdictional.” See Response to Comments Compendium 7 Summary Response and list of exclusions.

A. Romberg (Doc. #14096)

7.959 I urge the EPA to modify the proposed updated definition of Waters of the U. S. to EXCLUDE stormwater ponds and drainage ditches, and municipal stormwater systems. These systems are currently entirely adequately regulated by the National Pollution Discharge Elimination System, administered by the Texas Commission on Environmental Quality. (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4.

El Dorado Holdings, Inc. (Doc. #14285)

7.960 The proposed exemption for “gullies and rills” is potentially significant for the arid West, but the scope of the exemption is unclear. There is no obvious way to distinguish between (exempt) gullies and rills and (non

- exempt) small ephemeral tributaries. (p. 7)

Agency Response: See summary response 7.3.7.

Westlands Water District (Doc. #14414)

7.961 The Supreme Court's decisions in Miccosukee and Los Angeles County Flood Control District recognized the fundamental difference between waters of the United States and a point source that discharges into waters of the United States. A feature or system cannot fall into both categories. If a man

- made co nveyance meets the definition of point source under the Act, the EPA and the Army Corps of Engineers cannot properly classify it as a water of the United States based on an expansive definition of the term not found in the text of the Act itself. (p. 15)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. Also see the Technical Support Document, Section I. for an explanation of the legal basis for the

final rule. That secti on explains the rationale behind the longstanding position that point source and waters of the U.S. are not mutually exclusive.

7.962 Treatment Works with ponds in close proximity to a Tributary or Traditional Navigable waste treatment systems frequently rely o n percolation ponds and basins as a critical part of the sewage treatment process. Many waste treatment systems are developing wetland type treatment systems to reduce nutrient and other pollutant levels in the final effluent discharged from the system. Th ese ponds and wetlands are almost always connected to traditional navigable waters or their tributaries because the effluent needs somewhere to

go.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

631 In many cases the effluent must be returned to a surface stream so that it can contribute to

overall stream flow and be used by downstream water rights holders. Because of their location and function, these ponds could be classified as "waters of the United States" under the Proposed Rule. The Proposed Rule should expressly exempt all aspects of the

waste treatm ent system, I including "hack end" ponds and treatment wetlands, to ensure that the existing exemption is carried forward and to avoid infringing on operation of this critical infrastructure. (p. 25)

Agency Response: See summary response at 7.1 concerning the waste treatm ent system exclusion. With respect to groundwater recharge ponds, please see summary response at 7.4.2.

7.963 IV. REQUEST FOR MODIFICATION

As indicated in these Comments, the Proposed Rule would have significant impacts on water supply projects and flood control systems in the western states. To address these concerns, the following changes should be made to 40 C.F.R § 122.2:

Waste treatment, flood control and water supply systems, including but not limited to aqueducts, water supply canals not used for navigatio n, treatment ponds, or lagoons, storage ponds, pipelines, open channels, agricultural drains, manmade treatment wetlands, swales, or other low impact design infrastructure are not waters of the United States. This exclusion applies only to manmade

bodies o f water which were not created in waters of the United States Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purpos es of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

Additionally, the following changes should be made to 40 C.F.R § 122.2(b) and other relevant sections of the federal regulations that will be modified b y the Proposed Rule:

(b) The following are not ‘‘waters of the United States’’ notwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of this section

– (1) Waste treatment systems, including treatment ponds, treatment wetlands,

storag e ponds or lagoons, and percolation ponds designed to meet the requirements of the Clean Water Act, or designed to reuse treated effluent

. (2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction

remains with EPA

. (3) Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.

(4) Ditches that do not contribute flow, either directly or through another water, to a water identified in paragraphs (a)(1) through (4) of this sec tion.

(5) The following features:Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

632 (i) Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease;

(ii) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for s uch purposes as stock watering, irrigation, settling basins, water supply storage, groundwater recharge , or rice growing;

(iii) Artificial reflecting pools or swimming pools created by excavating and/or diking dry land; (iv) Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;

(v) Water

- filled depressions created incidental to construction activity;

(vi) Groundwater, including groundwater conveyed to waters of the

United States through open channels and subsurface drainage systems; and

(vii) Gullies and rills and non

- wetland swales.

(6) Manmade flood control and water supply systems, including but not limited to aqueducts, water supply canals not used for navigation, treatment p onds, storage ponds, lagoons, pipelines, open channels, agricultural drains, manmade treatment wetlands, swales, or other low impact development infrastructure which were not originally created in waters of the United States. (p. 32

– 33)

Agency Response: Please see summa ry response 7.1 concerning the waste treatment system exclusion. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2. With respect to the jurisdictional status of stormwater control features, including green infrastructure, as waters of the U.S., please see summary response at 7.4.4.

Union for Reform Judaism (Doc. #14560)

7.964 This proposed new definition is necessary because of the legal ambiguity created by the Supreme Courts’ 2001 ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and again in 2006

under Rapanos vs. United States , 547 U.S. 715 (2006). These decisions raised questions about the scope of waters protected by the Clean Water Act. Legal uncertainty and the resources required to argue jurisdiction have made Clean Water Act enforcement narrower than rightfully allowed under law. Now, for example, when crude oil is discharged into a creek and pollutes the water, the prohibitive resource req uirements of establishing jurisdiction can prevent EPA from exerting its authority to pursue a cleanup action and protect the area that provides water to the region and a habitat for local wildlife. (p. 1)

Agency Response: Comment noted. See the Technical Support Document Section

I.C for a discussion of the Supreme Court decisions.

State of Oklahoma (Doc. #14625)

7.965 As noted particularly in the preamble to the draft WOTUS rule, groundwater is outside the reach and scope of the CWA. In fact, it's a great example of an equally importantClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

633 source of freshwater for our citizens and industries that is well protected and managed solely within the purview of States. We appreciate the proposed rule's exclusion of groundwater, both in the preamble and now in the regulatory text, includin g the exemption of "groundwater drained through subsurface drainage systems." Still, given the proposed rule's use of "shallow subsurface hydrologic connections" as a possible means to establish jurisdiction, we believe the regulatory exemption should be e xtended to cover such shallow subsurface water. In Oklahoma and a number of other states, any water under the surface, no matter how shallow, is groundwater and is a property right of the overlying landowner. While the discussion in the preamble states tha t subsurface hydrologic connections will not become jurisdictional themselves, we remain concerned about the fact that preamble language often becomes unplugged from the regulatory language upon final codification in the CFR. Accordingly, we propose that t he groundwater exclusion in paragraph (t)(5)(vi) of the proposed rule be amended as

follows:

"Groundwater, including but not limited to groundwater drained through subsurface drainage systems and shallow subsurface hydrologic connections used to establish jurisdiction between surface waters under this section." (proposed changes underlined) (p. 5)

Agency Response: The agencies believe that the final rule language and accompanying preamble sufficiently and accurately describe the intent of the agencies in regard to the gro undwater exclusion. See section (IV)(G) of the preamble to the final rule and section 7.3.6

.

State of Oklahoma (Doc. #14773)

7.966 Another area of serious concern from the proposed WOTUS rule is the introduction of

"shallow sub

- surface connections" and the pote ntial for groundwater to be regulated for the first time under the CW A. Oklahoma defines groundwater as " ... fresh water under the surface of the earth regardless of the geologic structure in which it is standing or moving outside the cut bank of any def inite stream." (82 OKLA. STAT. §1020.1(1)). The CWA specifically excludes any regulation of groundwater, but the Agencies appear to be ignoring this intentional exclusion. In order to correct this issue, the Agencies should remove any doubt and clarify gro undwater or connections below ground will not be regulated under the proposal. (p. 2)

Agency Response: Groundwater is specifically excluded in the final rule. The agencies believe that the final rule language and accompanying preamble sufficiently and accurately describe the intent of the agencies in regard to the groundwater exclusion. See section (IV)(G) of the preamble to the final rule and

section 7.3.6

.

Santa Clara Valley Water District (Doc. #14776)

7.967 The Proposed Rule should not be internally inconsistent, and shoul d not be inconsistent with the and actions applied to wastewater discharges. For example, the Proposed Rule excludes groundwater in many sections (as it should), but groundwater is not excluded when jurisdiction is defined by shallow subsurface hydrologic connections. Neighboring and riparian areas use subsurface hydrologic connections to determine adjacent waters.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

634 Erosion features (e.g., gullies, rills, swales, ditches) are excluded, but yet considered connections in different sections of the Proposed Rule . There should not be contradictions in a final rule. (p. 2)

Agency Response: Groundwater is specifically excluded in the final rule, and the rule does not include a provision defining “neighboring” based on shallow subsurface flow. The agencies believe that the final ru le language and accompanying preamble sufficiently and accurately describe the intent of the agencies in regard to the groundwater exclusion. See section (IV)(G) of the preamble to the final rule and section 7.3.6

.

Region 10 Tribal Caucus (Doc. #14927)

7.968 F irst, the Tribal Caucus believe that many waters will still be threatened because of loopholes in 'the CWA that allow mining waste to be dumped directly into streams, rivers and lakes. The rule should be expanded to close the "fill" loophole to clarify tha t mining waste cannot be used to fill in waters of the United States, and the "waste treatment system" loophole that simply allows mining companies to rename water a "waste treatment system" to escape CWA responsibilities. (p. 3)

Agency Response: See summary response at 7 .1 . Comments on the definition of “fill material” are outside the scope of the proposed and final rules.

City of Minneapolis Water Resources (Doc. #14975.1)

7.969 The following is new revised rule language that we recommend be added to this rule. It is expressed in a format appropriate for the proposed revisions to Part 328, Section 328.3. We request that similar language, revised as appropriate, be added to each section

included in this rule.

Added to PART 328

- DEFINITION OF WATERS OFTHE UNITED STATES § 328.3 (c) "Definitions" (and other similar sections)

Fully

- constructed Stormwater Control Measures . The term fully

- constructed stormwater

control measures (SCMs) means man

- made structures, devices, measures, or Best Management Practices (BMPs) that are co nstructed for the purpose of water quality treatment, stormwater volume reduction, stormwater rate control, flood control, stormwater conveyance, or any combination of these purposes. Fully

- constructed SCMs include the following manmade features: construct ed stormwater ponds, constructed stormwater wetlands, rain gardens, infiltration devices and structures, groundwater recharge facilities, stormwater reuse facilities, swales, bioswales, Low Impact Development structures and BMPs, pipes, streets, curbs, gut ters, roadside ditches, man

made channels, storm drains, and other constructed stormwater control and conveyance structures, devices, and features. SCMs that have been built at the approximate location of similar types of natural waters (such as stormwater ponds constructed at the location of natural lakes or natural wetlands, ditches constructed at the location of natural streams or creeks, or stormwater channels constructed at the location of natural rivers) shall be considered fully constructed SCMs. Nat ural lakes, natural ponds, and natural wetlands with stormwater conveyance pipes discharging them and constructed outlets shall not beClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

635 considered fully

- constructed SCMs. SCMs that are subject to the ebb and flow of the tide

shall not be considered fully

- co nstructed SCMs.

Roadside ditches . The term roadside ditches means common roadway features, typically with a bottom and side slopes, found along or near the side of a roadway, intentionally designed and constructed as an integral part of a roadway system to convey water away from or along the roadway, preserve the structural stability of the roadway, /and/or to enhance public safety. Roadside ditches are an artificial and integral constructed part of a topography altered for the purpose of facilitating a roa dway as a part of a larger transportation system. Roadside ditches serve defined purposes as a part of a transportation system. Many promote structural stability of the roadway by moving water along or away from the roadway. Some are constructed for the pu rposes of providing a physical barrier and landing areas of vehicles accidentally leaving a roadway. Others provide a buffer and catchment zone for falling rock or other hazards to the traveling public. Roadside ditches may be constructed for multiple purp oses. Roadside ditches may or may not carry water. When present, flows within roadside ditches may be ephemeral, intermittent, or perennial. Flows of any type may be found in one part of a roadside ditch and not in another. (p. 1

– 2)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. Ditches are also addressed in compendium 6.

7.970 The following is new revised rule language that we recommend be added to this rule. It is

express ed in a format appropriate for the proposed revisions to Part 328, Section 328.3. We request that similar language, revised as appropriate, be added to each section

included in this rule.

Added to PART 328

- DEFINITION OF WATERS OF THE UNITED STATES §

328.3 (b) The following are not "waters of the United States” notwithstanding whether they meet the terms of paragraphs (a)(1) through (7) of this section

– (5) the following features:" (and other similar sections)

(viii) Fully

- constructed stormwater control mea sures.

(ix) Roadside ditches

Comments directly related to the New Recommended Revised Rule Language

Provided Above

1. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. Some are cities. Others are various types of public ent ities (DOTs, counties, non

traditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES permitting program. Many more of these MS4s are not regulated and are not covered under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portion s of their systems that are regulated under MS4 permits (inside an Urbanized Area) and portions that are not regulated (outside of Urbanized Areas). Taken together, all these MS4s own, operate, and maintain millions of Stormwater Control Measures (SCMs) an d Best Management Practices (BMPs). These SCMs and BMPs include both structural

and non

- structural practices, programs, and features. In order for these MMs to operate and maintain their systems in an efficient and cost

- effective manner, the WOTUSClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

63 6 jurisdic tional status of the vast majority of these constructed SCMs and BMPs must be clear. Determining the WOTUS jurisdictional status of most of these constructed

SCMs and BMPs on a case

- by

- case basis is not manageable or practicable. It is

essential that clari ty be provided by having specific and explicit exclusion language in the new rule for most of these constructed SCMs and BMPs, including roadside ditches. Broad inclusion language and reliance on agency best professional judgment and discretion regarding t he WOTUS status of most urban SCMs and BMPs are not acceptable or practicable. It is essential that clarity be provided by having specific and explicit exclusion language in the new rule for most of these constructed SCMs and BMPs, including roadside ditch es. Broad inclusion language and reliance on agency best professional judgement and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable.

2. There is a price paid for lack of clarity. if MS4ownefs and oper ators are unclear or unsure about the WOTUS " jurisdictional status of their constructed SCMs and BMPs,

their work will be more difficult and less efficient. Staff resources and time will be

diverted to this status issue. MS4s will be less confident about their operations and maintenance programs. MS4s' work and performance to protect, restore, and improve water quality will b be diminished.

3. If a significant number of urban SCMs are determined to be WOTUS, the operation

and maintenance of those SCMs will become much more complicated, difficult, and expensive for the public entities responsible for these MS4s, without any corresponding positive environmental outcomes. In fact, the MS4s' work and performance to protect, restore, and improve water quality wi ll be diminished. Such determinations may be the result of agency judgment or the outcome of third party lawsuits, based on interpretations of rule language. This is part of the reason why an explicit exclusion for most urban SCMs is needed.

4. Specific ex clusion language is needed for urban SCMs. If, as has been stated publicly on many occasions, it is EPA's intent that most of these waters and structures are not to be considered WOTUS, this should be clearly stated in the rule. Such a clear statement

woul d formalize and clarify EPA's intent. Such a clear statement would significantly reduce the probability of unfortunate interpretations in the future.

5. The current draft of the rule is almost silent about urban stormwater, in the preamble and the proposed rule language. This recommended revision language would rectify a portion of that deficiency. Adding exclusion language for urban SCMs to this rule would be appropriate, historic, and significant.

6. Because EPA is driving construction of MS4 SCMs and BMP s as part of its regulatory function, EPA has a responsibility to define clearly the jurisdictional status of most urban SCMs in the new WOTUS rule. This is part of the reason why an explicit

exclusion for most urban SCMs is needed.

7. The definition for t he term "tributary" provided in the proposed draft rule language is breathtakingly broad, especially the language related to man

- made and natural breaks. Under this language, it appears that many urban SCMs could be considered tributary

to other Waters of the United States and, thus, themselves be WOTUS. This contradicts EPA's public statements that most urban SCMs are not WOTUS. This isClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

637 part of the reason why an explicit exclusion for most urban SCMs is needed. Broad inclusion language and reliance on agen cy best professional judgment and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable.

8. Section 1.a.vi. of the draft proposed rule ("All waters, including wetlands, adjacent to a water identified in paragra phs (a)(l) through (5) of this section") states that all waters adjacent to WOTUS are WOTUS. The definition of the term "adjacent" includes the term "neighboring". The definition of the term "neighboring" includes waters located within the riparian area or floodplain of a WOTUS. Under this rule language, it appears that constructed urban SCMs in the riparian areas or floodplains of WOTUS would be considered WOTUS. This contradicts EPA's public statements that most urban SCMs are not WOTUS. This is part of t he reason why an explicit exclusion for most urban SCMs is needed. Broad inclusion language and reliance on agency best professional judgment and discretion regarding the WOTUS status of most urban SCMs and BMPs are not acceptable or practicable.

9. The ap proach with this new recommended revised rule language is to provide a broad exclusion for most types and the vast majority of urban stormwater SCMs, BMPs, and roadside ditches. The authors recognize that it may be appropriate that some types of

urban SCMs are determined to be WOTUS, on a case

- by

- case basis. To this end, the new recommended revised language includes "exceptions to the exclusion" in the definition for "fully

- constructed SCMs" (see the last three sentences). We urge EPA and the Corps to consi der this approach for the final rule language. This approach allows for a categorical exclusion for most urban SCMs but also allows 1 for some types of urban SCMs to be determined to be WOTUS, on a case

- by

- case basis. If additional exceptions are needed an d appropriate for "fully

- constructed SCMs" or exceptions are needed and appropriate for some types of roadside ditches, we urge EPA and the Corps to use this approach and add exceptions as needed.

10. We urge EPA to add explanatory language to the preamble to clarify its approach for urban SCMs. The preamble should be as clear for urban SCMs and roadside ditches as it is for agricultural waters, flows, practices, and ditches.

11. The exclusion language in the current proposed rule ("Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.") is inadequate for urban SCMs. Many urban SCMs were constructed for and serve purposes other than "waste treatment". Many urban SCMs were designed for

purpose s other than meeting "the requirements of the Clean Water Act". For example, this language does not cover many SCMs constructed in non

- permitted MS4s. This language would not cover urban SCMs and roadside ditches constructed the passage of

the CWA. The new recommended revised rule language is intended to address these

deficiencies.

12. The first exclusion provision in the proposed draft rule for ditches ("Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.") is inadequate. In many types of landscapes, it is impossible to construct a system of roadside ditches that does not pass through, drains, is adjacent to, or has a significant nexus with one or more wetlands. Many roadside ditches have constant flows

-Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

638 bec ause of significant groundwater inputs. This means that a significant portion of the

millions of miles of roadside ditches in the United States would not be covered under this exclusion. This is unmanageable and unacceptable. The new recommended

revised ru le language proposed here is intended to address this deficiency.

13. T he second exclusion in the proposed draft rule for ditches ("Ditches that do not contribute flow, either directly or through another water, to a water identified in paragraphs (a)(l) through (4) of this section.") is inadequate. The definition for the term "tributary" in the proposed draft rule includes very broad language defining possible connections between waters and to WOTUS. Based on this language, only a very small portion of th e millions of miles of roadside ditches in the United States would be covered under this exclusion. This is unmanageable and unacceptable. The new recommended revised rule language proposed here is intended to address this deficiency.

14. This new recommen ded revised rule language does not address ditches that are not "roadside ditches". We urge EPA to consider a similar approach and similar revised rule language for these other types of ditches, especially where these ditches are urban

SCMs.

15. The terms "stormwater control measures" and "best management practices" are widely used and very broadly defined, in common usage among stormwater management professionals and regulators. They are used to describe both non

structural and structural practices, progra ms, and constructed features. A portion of the range of non

- structural and structural BMPs can be found at a Web site developed by USEPA for the MS4 permitting program: "National Menu of Stormwater Best Management Practices" at this Web URL: http://water.epa.~ov/polwaste/npdes/swbm/

16. There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. Some are cities. Others are various types of public entities (DOTS, counties,

non

- tra ditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES permitting program. Many more of these MS4s are not regulated and are not covered under an MS4 permit. Some MS4s (e.g.: counties and DOTS) have portions of their systems that are re gulated under MS4 permits (inside an Urbanized Area) and portions that are not regulated (outside of Urbanized Areas). The exclusion language proposed here applies to all urban SCMs, regardless of whether they are covered under an MS4 permit or not. It may be appropriate to include language in this rule providing an exclusion for urban SCMs that are within the boundaries of permitted MS4s, but that is not the goal of this recommended rule revision. It is essential, for all the reasons listed above, that an exclusion be provided for the vast majority of urban SCMs, regardless of MS4 permit status.

17. The term "stormwater control measures" (SCMs) is used in this recommended revised rule language because of its use in the National Research Council's report fro m 2008 "Urban Stormwater Management in the United States". (p. 2

– 45)

Agency Response: This comment parallels comments addressed elsewhere. With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4 .4. See compendium 6 for discussion of

ditches.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

639 Clean Water Action (Doc. #15015)

7.971 We recommend that gullies, rills and non

- wetland swales not be categorically excluded from CWA jurisdiction, and suggest the agencies instead classify them as

“other waters” and evaluate their jurisdictional status on a case specific basis . In the preamble of the proposed rule, the agencies address the difficultly of distinguishing gullies from ephemeral streams and further note that these water features are often

conduits fo r moving water between streams, wetlands and other adjacent waters that are clearly jurisdictional. 559 We agree with the SAB panel’s assessment that water features like gullies, rills and non

- wetland swales can have a significant impact on the physical,

biol ogical and chemical integrity of downstream waters, and to automatically exclude all of these features from CWA protections is not scientifically sound. 560

Such a decision is particularly concerning given that the rule as proposed lacks a recapture provisio n, so if any of these types of water features were in the future found to have a significant impact on downstream water quality, the agencies would be unable to step in to protect them. We recommend that the agencies take a closer look at the wealth

of lit erature on human

- modified stream ecosystems, as described by the SAB in it comments on EPA’s Connectivity Report. 561 This literature could help inform the agencies as to which human or naturally altered water features have a significant impact on downgradien t water quality, and which do not. As the science of stream connectivity, especially as it relates to impacts caused by human alterations and natural events evolves, it is essential that the agencies continue to have the ability to evaluate the potential

i mpact of these water features on a case specific basis. (p. 3

– 4)

Agency Response: See summary response 7.3.7 and TSD section VII .A.

San Joaquin County Board of Supervisors (Doc. #15017.1)

7.972 "Waste Treatment Systems and Other Exclusions"

The proposed rule, in section (b) , excludes "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" among other features listed in the section. While such systems have traditionally been excluded from CWA jurisdiction, we b elieve that, due to the expansive nature of the proposal, the agencies should also exclude other constructed water management and treatment infrastructure with similar attributes to these waste treatment systems. These facilities

could include water reuse and recycling ponds, water treatment lagoons, and other

559 79 Fed. Reg. at 22219 (April 21, 2014).

560 Memorandum from Dr. Amanda Rodewald to Dr. David Allen, Comments to the chartered SAB on the Adequacy of the Scientific and Technical Basis of the Proposed Rule Titled “Definition of ‘Waters of the United States” Under the Clean Water Act.” (September 2, 2014). Available at: http://yosemite.epa.gov/sab/sabproducts.nsf/F6E197AC88A38CCD85257D49EDC/$File/Rodewald_Memorandum_ WOUS+Rule_9_2_14.pdf (Hereinafter SAB Review Memo) and SAB Rule Review Letter.

561 U.S. EPA Science Advisory Board, SAB Review of the Draft EPA Report Connectiv ity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, EPA

- SAB

- 15

- 001, at 46 (Oct 17, 2014) (hereinafter “SAB Connectivity Review”), available at http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/AF 1A28537854F8AB85257D74005003D2/$File/EPA

- SAB

- 15

- 001+unsigned.pdfClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

640 appurtenances; artificially constructed wetlands designed to treat agricultural or stormwater runoff (e.g. "green infrastructure") used and managed to remove nutrients and improve water quality; and a rtificially constructed groundwater recharge basins designed to percolate surface water into groundwater basins.

All of these features would revert to dry land if application of water were to cease and, even though they usually contain plants and shrubs kn own to grow in wetlands, they should be included in the list of features identified in the proposed rule as excluded from the definition of "waters of the U.S." (p. 8)

Agency Response: With respect to the jurisdictional status of stormwater control

features as waters of t he U.S., please see summary response at 7.4.4. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2. Finally, see summary response at 7.1 which addresses the waste treatment system exclusion.

Idaho Conservati on League (Doc. #15053)

7.973 ICL is also, however, very concerned about EPA’s efforts to categorically exclude a large number of waters, often with little grounding in the science and law. ICL believes categorical exclusions are not dictated by the statute or the case law and are likely to lead to waters being subject to pollution that should be protected. In particular, EPA’s approach to groundwater is plainly not warranted by the science as demonstrated by the many comments on this point by individual members of the SAB. (p. 1)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final rule does not affect this longstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC.

7.974 II. ICL OBJECTS TO EPA’S PROPOSAL TO CATEGORICALLY EXCLUDE

CERTAIN WATERS FROM THE PROTECT IONS OF THE CLEAN WATER ACT.

ICL objects to EPA’s proposal to exclude whole categories of water from receiving Clean Water Act protections. Such a result is not dictated by Supreme Court case law nor the language of the Clean Water Act. While some members of the Supreme Court expressed concern over ensuring that certain waters, specifically wetlands, had a connection to waters of the U.S., at no time has the Court addressed wholesale exclusion of certain types of waters. While EPA may desire to categoricall y exclude some waters for the sake of convenience, such a result is not driven by case law. Because it is also contrary to the intent and purpose of the Clean Water Act, categorically excluding certain types of

waters on the basis of administrative conveni ence would fail both tests under Chevron: it would violate clearly expressed congressional intent under Step One, and it is an unreasonable and impermissible interpretation of the Act under Step Two.

Moreover, such an exclusion would not constitute reasone d decision

- making supported by the record.

A. Groundwater Should Not Be Categorically Excluded.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

641 ICL strongly objects to EPA’s categorical exclusion of groundwater from Clean Water Act protection. EPA’s proposal will leave important waters exposed to pollution. The groundwater exclusions are unsupported from a scientific perspective and may lead to regulatory confusion. The better

- supported approach would be to identify groundwater as a subcategory of “other waters” for which jurisdictional status will be determined on a

case

- by

- case basis. In that fashion, EPA will ensure that the full purpose and intent of the Clean Water Act is realized and that it will not leave waters unprotected.

As noted by various individual members of the SAB, groundwater conne ctions to surface water do not separate along ill

- defined and fairly unscientific lines such as “shallow” or “deep.” Rather, connections occur as a result of topography, geology, geography, and time. In late summer and fall, many western rivers are almost entirely dependent upon groundwater. Sometimes connections through geographic features such as lava tubes or karst formations are very deep, but nonetheless very direct between groundwater and

surface waters. See Member Comments Aldous connections between wetland types and open waters; pointing out that inclusion of groundwater in connectivity should not simply be a function of distance; and questioning exclusion of shallow subsurface flows); Brooks at 17 (exclusion of groundwater “seems ill

- advised because of the likely connectivity” through different features with a potential to contaminate drinking water and connections with surface water a reasonable distance away); Gooseff at 21 (strongly questioning exclusion of groundwater and giving examples of signi ficant connectivity between surface and subsurface waters and problems with EPA’s definitions); Kolm at 31

- 32 (“regional ground water flows commonly interact with the surface environment at sinks and springs”; giving examples in the Floridian aquifer), at 33 (“In general, the role of regional groundwater systems in neighboring systems is not addressed by this Rule and leaves the waters of the US vulnerable”), at 34 (“Care should be taken not to imply that bedrock is impermeable because ground water flows th rough bedrock are important flowpaths that connect hydrologic landscapes over long distances and often across watershed boundaries”), at 39 (“as indicated with the Karst references, deep groundwater should be included as well for connectivity and include n ot only Karst, but certainly sedimentary systems, fractured rock systems, and volcanic systems as well...[t]he real issue is both temporal and spatial as the SAB has clearly and thoroughly discussed”), at 43 (pointing out that the role of regional groundwate r is inappropriately ignored in the proposed rule), and at 46; and Sullivan at 87 (ensuring the mechanism of connectivity is protected

— even if that is groundwater

— is critical). Plainly, EPA’s categorical exclusion of groundwater from the protections of the Clean Water Act (or its general exclusion with

the ill

- defined “shallow subsurface connection” exception) is not supported by the

science and the science advisors.

EPA should therefore revise the proposed rule to provide that groundwater shall be

protecte d as a water of the U.S. where it is hydrologically connected to surface water in a way that is not de minimis. This approach makes sense given the decision in Hawai‘i Wildlife Fund v. County of Maui , __ F.Supp.2d __ (D. Ha. 2014) 2014 WL 2451565,

where th e court found “[t]here is nothing inherent about groundwater conveyances and surface water conveyances that requires distinguishing between these conduits under the Clean Water Act. Id. at *13. The court found that where treated effluent was injected into groundwater and months later emerged from seeps into the ocean, the groundwater aquifer served as a conduit for discharges of pollution into the ocean and the dischargeClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

642 required a National Pollutant Discharge Elimination System (“NPDES”) permit. Id. at

*18 . At the same time, the court understood that the groundwater aquifer would also meet the significant nexus test being used by EPA here, because it has a hydrologic connection with the ocean, and the groundwater “significantly affects the physical, chemica l, and biological integrity of the ocean water.” Id. at *21

- 23.

While a discharge of pollutants into groundwater may be regulated under the “conduit” approach, it makes more sense, consistent with the approach advocated by members of the SAB, that the grou ndwater itself be protected as a water of the U.S. because of its hydrologic connection with the ocean. See, e.g. Member Comments, Aldous at 4, Brooks at 17, Kolm at 49. The water is plainly hydrologically connected to and affects another

water of the U.S. and should be protected in its own right both for human consumption and for the obvious ultimate impact to aquatic ecosystems. It is nonsensical to protect water in a stream, then not protect it if the water molecules change to a subsurface flow,

and then protect it again when those molecules surface in the ocean or a spring

- fed stream. And, as the court noted in Hawai‘i Wildlife Fund, “[n]either logic nor case law supports distinguishing between ‘shallow’ and ‘deep’ groundwater.” 2014 WL 2451565

at *17.Wh ile groundwater might not in every instance be a water of the U.S., excluding groundwater from ever being considered a water of the U.S. would not be a reasonable interpretation of the Act, nor would it be reasoned decision

- making supported by the

record. EPA should revise the rule accordingly.

ICL urges EPA to conform the groundwater sections of the proposed rule to the existing law and science to ensure that waters of the U.S. are fully protected as intended under the

Clean Water Act. EPA should revise th e rule to remove groundwater as a categorical exclusion and either fully include it in the “other waters” analysis of subsection (s) or create a new subpart in subsection (s) to ensure that groundwater that is connected to surface water, regardless of its “depth,” is protected as a water of the U.S. (p. 10

– 12)

Agency Response: The agencies have consistently interpreted the CWA to exclude shallow or deep groundwater from the geographic scope of the waters of the United States. The exclusion for groundwater in the final r ule does not affect this longstanding interpretation as the agencies have never considered the groundwater itself to be a “water of the United States.” See summary response for section 7.3.6 of

this RTC and the Technical Support Document

.

7.975 EPA also categori cally excludes gullies, rills, and non

- wetland swales. This is far too broad as noted by some members of the SAB. Gullies, rills, and swales are in many instances features on the landscape that carry significant flows and amounts of pollutants

to downstrea m waters. Instead of categorically excluding these features and waters, it is more scientifically supportable to examine their role relative to connections to waters of the U.S. under the “other waters” category of subsection (s) and determine whether they should be protected on a case

- by case basis. See Members Comments, Kolm at 50; Sullivan at 89 (“to exclude these and other variable source areas (e.g., swales) from jurisdiction is not fully supported by the available science as they can be important

comp onents of integrated aquatic systems with measurable impacts to downstream systems. . .the agencies should maintain the right to classify specific gullies, rills, and swales (either separately or in the aggregate) as jurisdictional when warranted.”)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

643 Again, categorical exclusions are not warranted under the law or science and ICL urges EPA to revise the proposed rule to ensure that waters that should be protected, at least on a case by

- case basis, are not automatically excluded from Clean Water Act protectio n. (p. 13)

Agency Response: See summary response 7.3.7 and TSD section 7.A.

7.976 C. Subsection (t)(5)(i), (ii)

— “Artificially” Irrigated or Created Areas.

This part of the rule is simply unclear. What is meant by “artificially” irrigated areas that would return to upland? This implies that there are areas that are so heavily irrigated they turn into wetland or other bodies of water that might be considered a water of the U.S. It is unclear what fact pattern this language is trying to address. The next subsection specifically re fers to rice growing, so it appears (t)(5)(i) does not refer to the kind of flood irrigation that might occur in a rice operation.

This exclusion (and the exclusion for ditches) also raises a question with respect to point sources and protected waters. EPA knows that many of the categorical exclusions are also significant sources of pollutants to water of the U.S. Artificial irrigation, rice growing operations (that fill and then later drain fields) and other “artificially” created areas such as settling ba sins, flush huge amounts of sediments, nutrients and chemicals such as pesticides into our waters. If they are not themselves protected waters subject to meeting water quality standards or protected by permit requirements if someone is to discharge to

them , then EPA must ensure that the pollutants that the artificial areas contribute to waters of the U.S. do not escape regulation and continue to jeopardize downstream waters, currently severely polluted with agricultural runoff wastes. If they are not waters of the U.S. and they are not regulated as discrete point source conveyances of pollutants, then a very large problem for our waters will be unaddressed and wholly unregulated. (p.

13

– 14)

Agency Response: As stated in the preamble, the features discussed under

exclusion s may function as “point sources” under CWA section 502(14)), such that discharges of pollutants to waters through these features c ould be subject to other CWA regulations (e.g., CWA section 402).

7.977 III. WASTE TREATMENT EXCLUSION

ICL strongly objects to the proposal to retain the “waste treatment system” exclusion, particularly given that EPA has never allowed for public notice and comment on the current version of this section of the rule. EPA lacks authority to exempt waters of the U.S. from the protections of the Clean Water Act. This exclusion is a major affront to the Clean Water Act and should be deleted. If not, at a minimum EPA must add a proviso in the text of the rule explicitly barring its application to waters of the U.S. If this exclusion

is retai ned, it can only be applied to manmade waste treatment systems constructed in uplands that are not waters of the U.S. As it stands, the waste treatment system exclusion contravenes the clearly expressed congressional intent to protect all waters of the U.S

., including impounded waters, and it therefore fails Step One of Chevron. Moreover, it is an unreasonable and therefore impermissible interpretation under Step Two, and also does not represent reasoned decision

- making supported by the record.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

644 In various p arts of the country

— mountainous regions of Appalachia, Iron Range states in the Great Lakes, mining and agricultural areas of the west and in Alaska

— the “waste treatment system” exclusion is routinely invoked by federal and state agencies to allow the impo undment of natural streams or wetlands, or the filling or excavation of lakes and wetlands, to drain runoff from surface mines and/or to hold tailings or overburden from mining operations. 562 Playa lakes have been used as animal waste retention ponds for

con fined animal feeding operations. 563 Generally (almost always) the natural stream, lake, or wetland would be considered a water of the U.S. under the existing or proposed

rules.

Under current practice and the so

- called “waste treatment system” exception, the now impounded/excavated/filled waterbody loses its status as a protected water under the Clean Water Act, meaning that it does not have to meet basic water quality standards and the mining or coal or utility is free to dump pollutants into the stream or la ke or wetland without the basic protections and requirements of a Clean Water Act NPDES permit. These waste treatment ponds are often filled with things like toxic coal ash, acid

- leaching mine tailings or overburden from sulfide ore deposits that will also leach acid, selenium, and other toxic metals. The ponds are often filled with sediment that can decimate spawning areas and that can affect light and temperature necessary for aquatic life. The impounded wastes typically are not isolated from waters of th e U.S., and in most cases are designed to discharge directly into protected waters. The “treatment” that occurs in these impoundments is frequently a farce, and often consists of nothing more than allowing the heaviest sediments in the discharges to settle to the bottom of the pond while the remaining untreated effluent is discharged into downstream waters. This practice causes serious water quality degradation downstream, even when discharges from the waste ponds are covered by permits. Usually water quali ty constituents such as hardness, conductivity, chlorides, sulfates, temperature and pH are adversely affected. This practice and result is utterly absurd and plainly contrary to law.

First, EPA and the Corps lack authority to adopt a regulation that empow ers the agencies to exclude waters that qualify as “waters of the U.S.” from statutory coverage under § 502(7), as well as from all of the safeguards that would otherwise protect that water under

the Clean Water Act. National Ass'n of Manufacturers v. Dept . of Labor , 159 F.3d 597, 600 (D.C. Cir. 1998) (“There is, of course, no such ‘except’ clause in the statute, and we are without authority to insert one.”). This exclusion goes well beyond EPA’s authority to interpret and apply the Act. Cf . Natural Res. De

f. Council, Inc. v. Costle , 568 F.2d 1369, 1372 (D.C. Cir. 1977) (striking down an EPA rule that attempted to exempt certain categories of point sources from the permit requirements of Clean Water Act section 402). Since EPA cannot exempt categories of poi nt sources from NPDES permit requirements, EPA lacks the authority to do so here by creating an artificial exclusion from the definition of waters of the U.S. Furthermore, the exclusion is breathtakingly

562 See Bernhardt and Palmer, The Environmental Costs of Mountaintop Mining Valley Fill Operations for Aquatic Ecosystems of the Central Appalachians, Ann. N.Y. Acad. Sci. 1223, 39

– 57, at 43 (2 011).

563 See EPA Region 6, National Pollutant Discharge Elimination System General Permit and Reporting Requirements for Discharges From Concentrated Animal Feeding Operations, 58 Fed. Reg. 7610, 7620

- 21 (February 8, 1993).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

645 broad, with no apparent limit on the use of our nati on’s waters as waste dumps. This is

unlawful. See Nat’l Treasury Emps. Union v. Chertoff , 452 F.3d 839, 861 (D.C. Cir. 2006) (rejecting reading of a statute where “there is no stopping point”); Valdes v. United

States , 475 F.3d 1319, 1328 (D.C. Cir. 2007) (rejecting a legislative interpretation that “appears to lack a limiting principle”).

This exclusion is particularly arbitrary in light of the fact that, in almost all other circumstances, impoundments are assiduously guarded within the definition of water s of the U.S. under subsection (s)(4). ICL agrees that the inclusion of impoundments under (s)(4) is justified because “as a legal matter an impoundment of a ‘water of the United States’ remains a ‘water of the United States’....” 79 Fed. Reg. at 22201 (disc ussing S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 379 n.5 (2006) and U.S. v. Moses

, 496 F.3d 984 (9th Cir. 2007)). The only difference between the impoundments that are covered under subsection (s)(4) and those that are excluded through th e artifice of the “waste treatment system” exclusion is the fact that the latter are intended to be filled with

waste. 564 This is not a reasonable or permissible interpretation of the Act, and it therefore also fails Step Two of Chevron. Nor does it constitu te reasoned decision

- making supported by the record.

Second, the proposal to retain the so

- called waste treatment system exclusion in its

current form violates the notice

- and

- comment requirements of the Administrative Procedure Act. 5 U.S.C. § 553. The his tory of the current rule shows that this exclusion was not originally intended to allow the current practice of using the nation’s waters as waste dumps. The 1980 regulatory definition of waters of the U.S. clearly provides that

the waste treatment exclusi on “applies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States.” Several months later, EPA published no tice purporting to “suspend” the operation of this language, but not replacing it with anything else or further explanation. The omission of the language was never the subject of a notice and comment public rulemaking process despite the fact that it plain ly significantly alters the law with respect to application of the protections of the Clean Water Act. Now the proposed rule specifically discourages members of the public from commenting on the proposal to retain the exclusion without the limiting languag e, stating that because the agencies “do not address” this and other exclusions they “do not seek comment” on them. 79 Fed. Reg. at 22190. Even assuming for the sake of argument that this exclusion is lawful under the Clean Water Act (and it is not), a dec ision to exclude natural bodies of water from the definition of waters of the U.S. must be subject to public process. EPA and the Corps’ retention and application of this disastrous and unauthorized exclusion must be suspended pending proper process.

Third , it is simply ludicrous that this brazen give

- away to some of the most polluting industries is allowed. Providing this exclusion violates the very fundamentals of the Act to eliminate toxic discharges and to preserve and protect the physical, chemical and

564 The impoundments themselves are also sources of pollution. Regardless of whether impoundments and the pollutants therein (including heavier sediment) are intended to ‘stay put,’ runoff and overflow from these areas can pollute traditional navigable waters. See attached memo (“The Rapano s Plurality: ‘Mobile’ § 402 Pollutants and ‘Stationary’ § 404 Pollutants”), at 15

- 20.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

646 biological integrity of the nation’s waters. As noted repeatedly by the SAB members, even small tributaries, including wetlands and lakes that are in headwaters of watersheds, provide critical function and value in protecting downstream waters. Indeed, th e proposed rule acknowledges that “scientific literature demonstrates that impoundments continue to significantly affect the chemical, physical, or biological integrity of downstream waters[,] traditional navigable waters, interstate waters, or the territo rial seas.” 79 Fed. Reg. at 22201. To allow them to be obliterated by polluting industrial activity and then polluted further with wastes based on the fiction that they are no longer waters of the U.S. is completely contrary to every single comment regardi ng tributaries, wetlands, and waters of the U.S. submitted by the members of the SAB and the general conclusions of the Connectivity Report. (Moreover, it does not appear that the SAB was given sufficient, or any, information about this exclusion and the w ay it is applied in practice to enable the SAB to advise EPA on the scientific merit or lack of merit underlying the waste treatment exclusion.) This further illustrates why the waste treatment system exclusion is unreasonable and therefore fails Step Two of Chevron, and does not constitute reasoned

decision

- making supported by the record.

ICL presses EPA to eliminate this exclusion entirely. At a minimum, EPA must provide full opportunity for notice and comment rulemaking for this polluting and damaging

pr actice. (p. 14

– 16)

Agency Response: See summary response at 7.1.

Lea Soil and Conservation District Board of Supervisors (Doc. #15144.1)

7.978 To accomplish the ambitious, but noble, goals the agencies propose the following amendments to their existing regulations 565 :

New SubS ection (b)

— i.e. Non

- Jurisdictional by Rule

 Maintains traditional exemptions for “prior converted cropland” and “waste treatment systems”;

 Proposes to include additional categories of waters that are not “waters of the United States,” including (b)(3) “Ditches that are excavated wholly in uplands, drain only uplands and have less than perennial flow” and (b)(4) “Ditches that do not contribute flow, either directly or through another water, to a water identified in paragraphs (a)(1) through (4) of this s ection.”;

 Subsection (b)(5) proposes to include the following specific waters:

o Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease;

o Artificial reflecting pools or swimming pools created by exca vating and/or diking dry land;

o Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;

o Water

- filled depressions created incidental to construction activity;

565 The referenced amendments are reflected as changes to the Corps’ definition in 33 C.F.R. § 328.3; however, USACE and EPA are proposing to adopt the same regulatory defi nition for both agencies.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

647 o Groundwater, including groundwater drained through su bsurface drainage systems; and

o Gullies and rills and not

- wetland swales. (p. 2)

Agency Response: This comment describes the proposed rule but does not appear to raise any issues that need a response.

Destin Water Users, Inc. (Doc. #15357)

7.979 The proposed rule provides an exc lusion for wastewater treatment facilities; however, that exclusion requires more explanation to determine if it applies to an entity like DWU. The issue of connectivity and significant nexus seems to eliminate the DWU wastewater treatment facility form t he exclusion. Because our wastewater discharges to the land surface and then percolates to the groundwater which then discharges to navigable waters all around us, it is certain that EPA will determine than an NPDES permit is needed or

that EPA will deter mine that it is needed under pressure from the environmental organizations. (p. 1)

Agency Response: See summary response at 7.1 concerning the waste treatment system exclusion. Also see summary response at 12.3 . The Agencies are unable to address site specific situations in this response to comments and in light of the

limited information available.

7.980 DWU requests that EPA elaborate on the exclusions for wastewater treatment plants for groundwater. Alternatively, EPA should, at least, state unequivocally that under any and all circumstances, present and future, the exclusions apply to wastewater treatment plants and groundwater conditions forming DWU process. (p. 1)

Agency Response: Please see the response to the previous comment.

Steel Manufacturers Association and Specialty Steel Industry of North America (Doc. #15416)

7.981 In addition to the ambiguity of the adjacency requirements, the definition of tributaries is ambiguous and, therefore, creates a great deal of confusion and jurisdictional uncertainty. The proposed rule defines tributaries a s waterbodies that have beds, banks, and an ordinary high water mark. But stormwater structures and retention ponds often have a bed, banks, and an ordinary high water mark, thus potentially classifying them as "tributaries." Fully constructed stormwater m easures, however, should clearly be part of the class of waters excluded from jurisdiction by rule, and any waterbodies EPA and the Army Corps wish to regulate could be specifically named as not being exempted by rule.

This would decrease the number of wat ers that necessitate a case

- by

- case analysis, and promote green infrastructure projects like storm water retention and detention structures.

Our associations are concerned about these ambiguities because our member companies' facilities often have these ty pes of waterbodies on their properties. Under this ambiguous proposed rule, their jurisdictional status would be profoundly uncertain. For example, retention ponds at steel mills are not intended to serve ecological interests. Most are

process

- related and serve to ensure a continuous and reusable source of process water. These ponds are, in fact, isolated and have minimal to no effect on navigable or interstate waters; however, they may now be jurisdictional waters of the United States. Through the expansiv e definitions for terms like "tributary," "adjacent," and "neighboring," EPA andClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

648 the Army Corps have enabled themselves to create far

- reaching authority much in the same way they did prior to the Rapanos case, when the regulators continued to look

farther and farther upstream to establish shared ecological features. (p. 8

- 9)

Agency Response: See summary response at 7.1 concerning the waste treatment system exclusion. With respect to jurisdiction of artificial ponds, please see summary response at 7.4.2. See also compendium 8 on tributaries.

Massachusetts Water Resources Authority (Doc. #15546)

7.982 MWRA supports the current regulatory practice with respect to inter

- basin water transfers. The transfer of water for purposes of water supply is essential to effective and

efficient w ater resource management. The current proposal does not directly deal with this issue; MWRA urges that the final rule be perfectly clear that waters transferred from one water body to another without intervening municipal, industrial, or agricultural use

a re not be subject to CW A restrictions. This rule making should provide direct regulatory language to maintain clarity that inter

- basin transfers for the purpose of water supply without intervening municipal, industrial, or agricultural use are not be subj ect to CW A restrictions. Preambles and guidance do not have the force of law that direct regulatory language would provide. (p. 2)

Agency Response: See summary response at 12.3 regarding water transfers. As noted, the rulemaking does not address the question whether wat er transfers need an NPDES permit.

7.983 Storing and moving water are key parts of our mission to provide drinking water and manage wastewater. Water infrastructure facilities can encompass a broad range of structures and activities, ranging from green infrastru cture (e.g., infiltration trenches, swales, artificial wetlands, etc.) to ground water well discharges, and artificial aquifer recharge. MWRA urges that the final rule provide a specific exemption for water infrastructure that clearly and explicitly encomp asses the full breadth of water utility operations. MWRA believes that water supply or wastewater conveyances, storage and treatment facilities, and the associated operations and maintenance activities conducted by a water utility should be specifically ex empted in all sections of the Clean Water Act, 33 U.S.C. 1251 et seq., and its implementing regulations by inclusion of a specific paragraph within the list of exclusions in every section of the definitions proposed for amendment. (p. 2)

Agency Response: See summary respon se at 12.3 regarding water transfers. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2. With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary r esponse at 7.4.4.

7.984 EPA and the Corps should add municipal separate storm sewer systems components/infrastructure upstream of a permitted MS4 discharge point to the list of waters that are not considered "waters of the United States", and exempt these stormwater components from Section 404 requirements for maintenance and repair activities. (p. 4)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

649 City of Portland, Maine (Doc. #15582)

7.985 The final rule must clarify that municipal separate storm sewer systems (MS4's) are covered by the waste treatment system exemption and will not be jurisdictional under the CWA above any existing point of perrnkted discharge, including any di tches that are part of MS4.(p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. See also 7.1 regarding the waste treatment system exclusion.

7.986 EPA has verbally stated th at the proposed rule is not intended to make green infrastructure (GI) installations jurisdictional, indicating that any GI installation or GI practice designed to meet CWA obligations or achieve water quality goals is not meant to be included. However, EP A and the Army Corp of Engineers need to specifically clarify this in the final rule. The City of Portland is expanding plans for green infrastructure projects as a means to enhance water quality as part of our approved Tier III LTCP for CSO abatement proj ects, and does not want added regulations under the new proposed Rule as a means to mandate CWA results. (P. 2

- 3)

Agency Response: With respect to the jurisdictional status of stormwater control features, including green infrastructure, as waters of the U.S., please see su mmary response at 7.4.4.

7.987 The rule fails to provide intended level of clarity, certainty and predictability. Appears to increase the EPA's reach in an unpredictable way. Are drainage ditches, catch basins, swales, and other man made Ponds (such as the Deer ing Oaks Pond) exempt from the Rule? (p. 3)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. With respect to artificial lakes and ponds, please see summary response at 7 .3.2.The agencies are

unable to make case

- specific determination about the status of any particular feature, such as Deering Oaks Ponds mentioned in this comment, in this response to

comments.

7.988 Waste treatment systems are excluded so clarity is needed if MS 4's are covered under "systems" and thus exempt? (p. 3)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. Summary response 7.1 further discusses the waste treatment system exclusion.

Countrymark Cooperative Holding Corporation, LLC; Countrymark Refining and Logistics, LLC (Doc. #15656)

7.989 Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

650 (2) Water located o n the site of a residential, municipal, industrial, commercial, or agricultural facility that is being managed for water supply. for use. or to control runoff

and that

– (i) Remains at the facility, or

(ij) Leaves the facility and contributes flow to a wa ter identified in paragraphs (s)(1) through (5) through a discharge point that is regulated under section 402 or would be regulated under section 402 but for an exemption from that section, and

(iii) Includes but is not limited to stormwater management ponds, farm ponds, stock watering ponds, cooling ponds, manmade water conveyances, manmade water storage features, manmade ditches. manmade irrigation canals. rice fields. swimming pools. sett ling basins. ornamental waters. reflecting pools. and other

man made water management features. 566

(3) Water that is not located in a wetland or that is not confined in a surface channel or natural lake. including rainwater and snow melt that moves across the land as sheet flow .

(4) Prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA .

(3) Ditches that arc excava ted wholly in uplands , drain only uplands, and have less than perennial flow.

(4) Ditches that do not contribute flow , either directly or through another water, to a water identified in paragraphs (s)( I) through (4) of this section.

(5) The following features:

(i) Artificially irrigates areas that would revert to upland should application of irrigation water to that area cease;

(ii) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock wa tering, irrigation, settling basins, or rice growing;

(iii) Artificial reflecting pools or swimming pools created by excavating ad/or diking dry land;

(iv) Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons ;

(v) Water

- filled depressions created incidental to construction activity;

566 See 40 Fed. Reg. 3 1,320.3 1,321 (July 25, 1975) ("[d]rainage ditches have been excluded" from CWA jurisdiction); 42 Fed. Reg. 37,122, 37,144 (July 19,1 977) (drainage ditches that feed a water of the U.S. is a point sources); 4 8 Fed. Reg. 2 1,466,2 1,474 (May 12, 1983) ("waters of the United States do not include the following

man

- made waters; (I ) Non

- navigable drainage and irrigation ditches excavated on dry land" ); 5 1 Fed. Reg. 4 1,206, 4 1,217 (Nov. 13, 1986) ("We generall y do not consider [drainage and irrigation ditches excavated on dry land] to be waters of the United States.").Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

651 (vi) Groundwater, including groundwater drained through subsurface drainage systems; and

(vii) Gullies and rills and non

- wetland swales. (p. 14

- 15)

Agency Response: With respect to the jurisdiction al status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. See response at 7.1 regarding waste treatment systems.

Pennsylvania Grade Crude Oil Coalition (Doc. #15773)

7.990 Exclusions

- The exclusions to the definition of "waters of the United States" are very specific and seemingly arbitrary. PGCC asks that the exclusions for (1) "artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins or rice growing" and (2) "artificial reflecting pools or swimming pools created by excavating and/or diking dry land" be expanded to include other types of ponds excavated in dry land, including impoundments and stormwater ponds. (p. 11)

Agency Response: W ith respect to the jurisdictional status of stormwater control feature, including stormwater ponds, as waters of the U.S., please see summary response at 7.4.4.

Indiana Department of Environmental Management (Doc. #16440)

7.991 The Final rule must clarify the f ull scope of the exemption for a waste treatment system and other waste management systems. Indiana agrees that "waste treatment systems, including treatment ponds and lagoons, designed to meet the requirements of the Clean

Water Act" are not waters of the U.S. Yet, the proposed rule creates confusion over this provision by adding a comma after "lagoons" thereby implying that all waste treatment systems must be designed to meet Clean Water Act requirements. This is not true today

as waste treatment systems that do not discharge to waters of the U.S. are not subject to Clean Water Act requirements. The comma after "lagoons" must be removed.

Also, further definition of what is and is not included as a waste treatment system must be added. We suggest language s uch as: "all components located behind the outfall of an NPDES permit" be inserted after "lagoons" in the Proposed Rule language. Additionally, it must be clearly stated that permitted storm water collection systems (particularly MS4s) fall within the excl usion of "waste treatment systems." (p. 4)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. The waste treatment system exclusion is discussed in the preamble and in summ ary response 7.1.

Pershing County Water Conservation District (Doc. #16519)

7.992 The comments to follow pertain specifically to the sections of the proposed rule which may affect water used exclusively for agriculture. Although there are certain agricultural

e xemptions built into the proposed rule, these comments are meant to point outClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

652 inconsistencies, lack of legal standing, and lack of finite definitions regarding such exemptions. (p. 2)

Agency Response: The commenter’s substantive issues are addressed below.

7.993 The proposed r ule does attempt to put farmers and rancher's minds at ease by stating "Nile rule does not affect longstanding permitting exemptions in the CWA for farming, silviculture, ranching and other specified activities." While this is a good thing, the rule

itself leaves a lot of rule, it is unclear just how much protection those in agriculture will have. In a publication the EPA released discussing the continued agricultural exemptions, they state that exemptions apply to "Normal Farming." It is unclear what is me ant by "normal." Additionally, this wording does not exist in the rule. Normal Farming practices in one part of the state or country are different than those in other parts of the same state and country.

The exemptions intended to benefit farmers and ranc hers in the rule state the following as exempt: 1) Prior converted cropland; 2) Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow; 3) 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; 4) Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease. (p. 3

– 4)

Agency Response: “Normal” farming, silviculture, and ranching is clarified in the agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and ongoing activities to distinguish from activities needed to convert an area to farming, silviculture, or ra nching and activities that convert a water to a non

- water. Nothing in this rule changes the exemptions covered in 404(f) or current agency implementation of the exemptions. The commenter appears to refer to the agencies’ interpretive rule regarding 404(f) , but that has been withdrawn.

7.994 The primary concern of the District is the vague nature of the proposed rule. While there does exist hundreds of pages of explanation for a half page rule, little of this will have much bearing should the rule be implemented. There needs to be more concise definitions of the water not considered "Waters of the United States" within the rule itself, and an express exemption in the rule for agriculture. Additionally, the rule should expressly exempt waterways that do not have a continuous flow of water. (p. 4)

Agency Response: In the final rule, the agencies have provided clarified information regarding features that are not considered “waters of the United States”, even where those features would otherwise meet the criteria for jurisdiction

und er paragraphs (a)(4) though (a)(8). Regarding the rationale why a continuous flow of water is not a requirement to have a significant nexus, see the Technical Support Document.

Kaweah and Tule Water Managers (Doc. #16544)

7.995 Further, the exclusion should be expanded to include agricultural ponding basins that are not connected to any other water body. Agricultural operations often have need for temporary ponding of irrigation or tail water, and basins for these purposes have no logical or functional connecti on to any navigable waterway, and should simply beClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

653 excluded by rule. Currently, such basins can trigger the need for a full jurisdictional determination, requiring costly and lengthy review by USACE. Again, such processes have little to no value in meeting the core intent of the CWA (the preservation of the nation’s navigable waterways), and therefore a simple exclusion for these basins would serve the public interest. (p. 6)

Agency Response: Artificial lakes or ponds created in dry land s uch as stock watering pond , irriga tion pond , settling basins, etc. are specifically excluded under paragraph (b) of the final rule. See section 7.3.2.

7.996 The proposed rule should exclude groundwater recharge basins and stormwater management facilities, together with their infrastructure, bec ause it places them at

risk.

The Tule and Kaweah Commenters use surface infiltration as a management tool to prevent flooding, store excess water for future use, replenish groundwater supplies, or abate land subsidence. The most economical manner of groun dwater recharge is to construct a basin in alluvial material immediately adjacent to a stream, almost all of which are intermittent or ephemeral within the boundaries of the Tule and Kaweah Commenters. This allows water to rapidly infiltrate through the ba sin to the unsaturated zone where it is added to the aquifer below. In addition to the basins, flood control levies, swales and ditches are used to capture and convey stormwater to protect public safety. In addition to sometimes being adjacent to “waters o f the United States”, all of these features may contain hydric soil, wetland vegetation, and have an ordinary high water mark. Currently, these facilities have not been deemed to have a significant nexus with traditional navigable waters. Under the propose d rule these facilities would meet the definition of “waters of United States”. Accordingly, the Tule and Kaweah Commenters request that groundwater recharge facilities and stormwater retention basins, together with all related infrastructure (including co nstruction, operations, and maintenance), be explicitly excluded from the proposed definition of “waters of the United States”. (p. 6

– 7)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary r esponse at 7.4.4. For a discussion of groundwater recharge facilities, please see summary response at 7.4.2.

Judy Petersen (Doc. #16580)

7.997 In Kentucky, coal mines often request a “permit” for in

- stream ponds as a part of their “waste treatment”. This happen s in both the eastern and western Kentucky coalfields. It is completely counter intuitive that an industry could “take” a part of the headwaters of our streams to use as waste treatment and then for EPA and/or the Corp to rule that the stream is no longer a water of the US. While I acknowledge that it is legal to use in

stream waste treatment under certain circumstances, new waste treatment systems in

stream must be considered as Waters of the US. (p. 1)

Agency Response: See summary response 7.1.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

654 Kentucky Waterways Allianc e (Doc. #16581)

7.998 We have considerable concern with the agencies’ current practice with regard to this exemption for waste treatment systems. Since the exemption was written into the regulations, EPA and the Corps have attempted to expand it to cover waters for which it plainly was not intended. In 1980, EPA amended its regulations to provide that:

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act ... are not waters of the United States. This exclusion

a pplies only to manmade bodies of water which neither were originally created in waters of the United States (such as a disposal area in wetlands) nor resulted from the impoundment of waters of the United States. 567

Clearly, the exclusion was limited. In view of the fact that the Act “was not intended to license dischargers to freely use waters of the United States as waste treatment systems, the definition makes clear that treatment systems created in those waters or from their impoundment remain waters of th e United States.” 568

Although the second sentence of the regulatory exclusion was suspended in order to dispel concerns that preexisting treatment systems would be improperly brought into the regulatory system, 569 the exemption was not meant to be a wholesale authorization of anything described as a “waste treatment system.” To the contrary, EPA‘s initial implementation of the rules rejected a sweeping interpretation; the agency argued in litigation that in

- stream disposal of coal mining waste did not qualify f or the exemption. 570

Unfortunately, over time, EPA and the Corps have reversed this interpretation, and now allow sources to use the regulatory exemption to treat new waste treatment facilities in protected waters excluded from the Clean Water Act. Under the agencies’ revised interpretation, a new impoundment of waters of the United States is able to qualify for the

567 W.Va. Coal Ass’n v. Reilly, 728 F. Supp. 1276, 1289 (S.D. W.Va. 1989) (quoting 40 C.F.R. § 122.3 (1980)).

568 Id. (quoting 45 Fed. Reg. 33,298 ( May 19, 1980)).

569 Id. (citing 45 Fed. Reg. 48,620 (July 21, 1980)).

570 Id. at 1289

- 90 (deferring to EPA‘s interpretation that treatment ponds were regulated “impoundments,” not excluded “waste treatment systems”). See also Memorandum from Marcia Williams, EPA Office of Solid Waste Director, to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B (Apr. 2, 1986) (“EPA applies a standard which treats newly created impoundments of waters of the U.S. as ‘waters of the U.S.,’ not as ‘waste treatment systems designed to meet the requirements of the CWA, ’ whereas impoundments of ‘waters of the U.S.’ that have existed for many years and had been issued NPDES permits for discharges from such impoundments are ‘wastewater treatment systems designed to meet the requirements of the CWA’ and therefore are

not ‘w aters of the U.S.’”), available at http://yosemite.epa.gov/osw/rcra.nsf/documents/4BD7

508AD59EA15F852565DA006F0A63

.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

655 waste treatment system exclusion if it is established via a section 404 permit. 571 This position has been upheld in litigation. 572

We strongly oppos e this approach

– nothing is more inconsistent with the basic premise of the Clean Water Act than allowing polluters to convert the nation’s waters into waste dumps. The agencies should use the opportunity of this rulemaking to explicitly limit the applica tion of the waste treatment systems exemption to pre

- existing facilities. (p 12

– 13)

Agency Response: See summary response 7.1.

Lake County Stormwater Management Commission (Doc. #16893)

7.999 We acknowledge and support the proposed exemptions for agricultural lands and the specific exclusion of prior

- converted cropland from regulation as WOUS in §328.3(b)(2). (p. 2)

Agency Response: See paragraph (b) of the final rule and section IV(I) of the preamble for a discussion of all of the exclusions in the rule.

7.1000 We recommend clarifying the exclusion related to water

- filled depressions in §328.3(b)(5)(v) to include a timeframe for this exclusion (e.g., abandoned for the past 5 years). (p. 2)

Agency Response: See summary response in 7.3.5.

D. Gillham (Doc. #16906)

7.1001 (...) B. What if a structure is used for two or more purposes, one of which is not exempt? Example: a stock pond also used for erosion control; a stock pond in an ephemeral or intermittent tributary of a WOUS? (p. 2)

Agency Response: As stated in the rule, even where an excluded feature meets the terms of (a)(4)

- (a)(8 ), it is not considered to be “waters of the United States.” See

also section 7.3.2.

Arizona Rock Products Association (Doc. #17055)

7.1002 Several Exemptions are Necessary to Allow the Construction Materials Sector to Operate Feasibly and Economically.

The EPA has routinely asked, in stakeholder meetings, for regulated stakeholders to identify which exemptions they need in order to successfully operate. Under the expansive definition set forth in the proposed rule, the following is a list of exemptions

571 Memorandum from LaJuana S. Wilcher, EPA Assistant Administrator, to Charles E. Findley, Director, Water Div., Region X, U.S. Army Corps of Eng‘rs, on Clean Water Act Regulation of Mine Tailings Disposal (Oct. 2, 1992); see also State Program Requirements; Approval of Application to Administer th e NPDES Program; Texas, 63 Fed. Reg. 51,164, 51,183

- 84 (Sept. 24, 1998); U.S. EPA, Guiding Principles for Constructed Treatment Wetlands at 16 (Oct. 2000), available at http://water.epa.gov/type/wetlands/constructed/upload/guiding

- principles.pdf

. 572 See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 211

- 16 (4th Cir. 2009) (upholding the agencies’ interpretation).Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

656 the cons truction materials industry would need in order to operate feasibly and economically

 A "grandfathering" provision to allow existing and proposed operations that are currently permitted or have existing jurisdictional determinations the ability to

operate u nder these existing plans. An exemption for flood control or erosion control features associated with mining operations. These flood control features serve an important role in preventing pollution. However, as written, the proposed

rule could allow the Co rps or EPA to assert jurisdiction over a flood control feature if it is within a floodplain. By having a specific exemption, the proposed rule would recognize that these flood control features help prevent and control pollution.

 There should be a general e xemption for aggregate mining operations provided that they have erosional and flood control features designed to prevent water from flowing away from the mine site and into traditionally navigable water or interstate water. This exemption should be applic able even if water leaves the mine site during ephemeral events.

 An exemption for constructing, modifying, or decommissioning man

- made or manaltered water features which might otherwise be considered jurisdictional under the proposed rule if the construct ion, modification, or decommissioning will eliminate or prevent flows into an interstate or traditionally navigable water. This exemption is necessary given the expansive definition of tributary. (p. 3

– 4)

Agency Response: With respect to the jurisdictional status of sto rmwater control features as waters of the U.S., please see summary response at 7.4.4. The final rule includes a new exclusion in paragraph (b)(6) for stormwater control features constructed to convey, treat, or store stormwater that are created in dry land

. See

section 7.4.4. This exclusion responds to numerous commenters who raised concerns that the proposed rule would adversely affect municipalities’ ability to operate and maintain their stormwater systems, and also to address confusion about the state of practice regarding jurisdiction of these features at the time the rule was proposed. The preamble to the final rule addresses “grandfathering.”

D. Solem (Doc. #17627)

7.1003 The rule should exempt irrigation district facilities period. The Agencies should make clear that manmade irrigation canals, ditches and drains are not navigable waters, are not "waters of the U.S.", are not "tributary" to the waters of the U.S. and are not subject to CWA jurisdiction. This is the only way the rule can be clarified without creating a huge impact to the agricultural economy of the United States. (p. 1)

Agency Response: There are several exclusions in paragraph (b) of th rule that may apply to irrigation features. For example, the rule excludes certain ditches in paragraphs (b)(3). See compe ndium 6. Recognizing the vital role of farmers in providing the nation with food and fiber, the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal farming activities such as seeding, harvesting, cultivating, planting, soil a nd water conservation practices, and other activities from the Section 404 permitting requirement. Nothing in this rule changesClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

657 the exemptions covered in 404(f) or current agency implementation of the exemptions.

Anonymous (Doc. #18770)

7.1004 #3 All Man

- made s tormwater conveyance systems, ditches, ponds, and treatment devices should be exempt from regulations. Jurisdictions operating regulated MS4s are working hard to protect the environment and natural resources. Their programs and procedures should provide su fficient protection to safeguard water quality during necessary and often required maintenance operations. Additional permits should not be required when one is required to conduct maintenance. Jurisdictions that are not regulated under NPDES

should be abl e to comply with regular Best Management Practices and not a complex and costly permitting process (and yes I include general permits in this action). (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., p lease see summary response at 7.4.4.

7.1005 #6 blue lines. There are many places in our community where blue lines on maps from the 1980s (only maps available) are no longer relevant or meet any current definitions of protected waters. Over time, and with permits , drainage systems have rerouted and in some cases abandoned or eliminated rerouted areas. The flow patterns are often completely changed but not the maps. Upland of these lines are manmade ponds and

lakes used for stormwater treatment from flood and water quality improvement. Many of these blue lines started out along man

- made channels to drain farmland by the often exempted agriculture industry. In re

- development, these canals are used to convey

suburban run

- off. So as a man

- made channel, how are they con sidered blue lines or jurisdictional? If agriculture can operate and alter the environment with exemptions, why not provide the same exemptions to the MS4s who are working diligently to protect water quality. (p. 2)

Agency Response: With respect to the jurisdictional stat us of stormwater control features as waters of the U.S., please see summary response at 7.4.4. See also compendium 6 regarding ditches.

Alliant Energy Corporate Services, Inc. (Doc. #18791)

7.1006 EPA and the Corps have acknowledged that WTS are not jurisdiction al and should r e main excluded from any definitions of WOTUS and thus have "proposed no change to the exclusion for waste treatment systems designed consistent with the requirements of the CWA " (79 Fed. Re g. at 22,189). Alliant Energy supports the EPA a nd the Corps' desire to maintain the WTS exclusion. However, a subtle change to the WTS exclusion is noted in the proposed rule as follows: "Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act" (79 Fed . Reg . at 22,193). Adding a comma after " lagoons" implies that all systems, not just treatment ponds and lagoon s, would have to be "designed to meet the requirements of

the Clean Water Act" in order to fall within the exclusion. This creat es confusion. For example, a facility may have a WTS with components constructed prior to and after the enactment of the CWA which are covered under the same NPDES permit. It's uncle a r how the proposed WTS exclusion language, with the additional comma, w ould apply to such a facility. (p. 3)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

658 Agency Response: The preamble discusses the waste treatment system exclusion as does summary response 7.1.

7.1007 Alliant Energy ha s the following suggestions for EPA and the Corp s to consider when editing the proposal:

 Clearly define all WTS structures and water features, including influent conveyance and effluent discharge, on

- site storage, treatment, and site maintenance (e.g., stormwater management) or otherwise "in

- use" waters, which

are non

- jurisdictional and, therefore, covered by t he WTS exclusion. (p. 3

- 4)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4. See summary response 7.1 for a discussion of the waste treatment system exclusion.

7.1008 Alliant Ene rgy has the following suggestions for EPA and the Corps to consider when editing the proposal:

 Clarify that cooling ponds are considered Waste Treatment Systems and therefore, excluded from WOTUS. See the Federal Water Quality Coalition's

comments for furt her detail. (p. 3

- 4)

Agency Response: With respect to cooling ponds, please see summary response at

7. 3

. 2

.

Anonymous (Doc. #18801)

7.1009 1) MS4's need to have the same exemption as waste treatment. The proposed rule is too vague and confusing for small MS4's. (...) (p. 1)

Agency Response: See s ummary responses at 7 .4.4 and 7.1.

Valley County (Doc. #18918)

7.1010 Valley County is in favor of clean water, but this could create some real hardships for the County and our livestock producers. Common sense would say this does not apply to road right

- of

- ways or dry drainages, but past experiences tells us that Federal agencies and the courts do not always use common sense. We ask that you remove this from the definition. (p. 1

- 2)

Agency Response: The rule identifies all erosional features, including gullies and rills, as no n

-

jurisdictional features. While the proposed rule specifically identified gullies and rills, the agencies intended that all erosional features would be excluded. The final rule makes this clear. Erosional features are not jurisdictional under the

terms of paragraph (a) and the definitions in paragraph (c), especially the definition of tributary, and would be non

- jurisdictional in any case. These features are specifically excluded in the rule to avoid confusion, because preceding guidance

identified them as non

-

jurisdictional and many commenters stated these exclusions were important to maintain in the rule. Tributaries can be distinguished from erosional features by the presence of bed and banks and an ordinary high water

mark. Concentrated surface runoff c an occur within erosional features withoutClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

659 creating the permanent physical characteristics associated with bed and banks and ordinary high water mark. See also compendium 6 regarding ditches.

Anonymous (Doc. #18943)

7.1011 1. The proposed definition of tributar y will, for the first time, result in stormwater lines within manufacturing plants being included in the definition of waters of the U.S. because such lines may have a bed, a bank and a high water line. Therefore any chemical spill into those lines in exce ss of reportable quantities or any oil spill that causes a sheen within those lines will be reportable to the National Response Center, even if the spill never exits the lines before being cleaned up. This will greatly increase the number of reportable spi lls and increase the manpower burden on small manufacturing plants and on the NRC for spills that have no actual impact on the environment. Therefore, we suggest that underground artificial stormwater lines on private property be explicitly excluded

from t he definition of waters of the U.S. (p. 1)

Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4.

7.1012 2. Other waters are proposed for inclusion as waters of the U.S. if a case

- s pecific analysis shows a significant nexus to waters of the U.S. This will for the first time include rainwater puddles within the definition of waters of the U.S. This is so because the case

specific analysis is not really case specific because it is allo wed to include similarly situated waters in the same region. Although a single puddle may not have a significant nexus to waters of the U.S., the single puddle in combination with thousands of other similarly situated puddles in the same region could be de monstrated to have the required significant nexus. Thus, as an example, if a plant owner objects that the rain puddle in his plant yard needs a case

- specific analysis before EPA can regulate it, EPA can simply include all similarly situated yards in the re gion in their analysis in order to demonstrate a significant nexus to a water of the U.S. Once the inclusion of rainwater puddles in the definition of waters has been justified by this so

- called case

- specific analysis, any

greater

- than

- RQ release or oil sh een in any rainwater puddles will be immediately reportable to the National Response Center, whether or not the release is contained or cleaned up before leaving the property or entering the environment. This will greatly increase the manpower cost burden on both small manufacturers and the National Response Center. We therefore suggest that rainwater filled depressions that dissipate within 3 days of the last rainfall be excluded from the definition of waters. (p. 2)

Agency Response: As stated in the rule, even where an e xcluded feature meets the terms of (a)(4)

- (a)(8), it is not considered to be “waters of the United States.” The rule does not affect the reporting requirement for spills and the procedures for reporting are outside the scope of this rule.

Anonymous (Doc. #18955)

7.1013 2. Specific exclusion language is needed for urban SCMs. If, as has been stated publicly, it is EPAs intent that most of these BMPs are not to be considered WOTUS, this should be clearly stated in the rule. Such a clear statement would formalize a nd clarify EPAs intent and would significantly reduce the probability of unfortunate interpretations in the future. (p. 1)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

660 Agency Response: With respect to the jurisdictional status of stormwater control features as waters of the U.S., please see summary response at 7.4.4

.

City of Olathe Kansas (Doc. #18982)

7.1014 The proposed rule exempts some water bodies including "waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act". This exemption needs to be expanded to include all green infrastructure (extended wet detention ponds, constructed wetlands, rain gardens, bio

- retention cells, etc.) required by NPDES post construction stormwater control regulations. (p. 2)

Agency Response: See summary responses at 7.1 and 7 .4.4.

Kevin and Ni cole Keegan (Doc. #19128)

7.1015 From the two

- page paper titled "proposed Definition of Waters of the United States under the Clean Water Act" the following definitions would affect us and we oppose:

 "Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease;"

o This has a negative impact on farming, ranching and the general food supply in the United States. We already have issues in feeding American citizens, let alone the hundreds of thousands of legal and illegal immigrants.

 "Artificial reflecting pools or swimming pools created by excavating and/or diking dry land;" AND "Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons"

o Why should the EPA be able to r egulate a citizens or property owner’s ability to own or maintain their pool or a reflection pond or the aesthetics of their property? Isn't this why there are so many homeowners associations across the country?

 "Water

- filled depressions created incidental to construction activity" o Construction crews can barely set up and use portable toilets let alone regulate or investigate their own construction activity related to "depressions" of water. Does this include their self made "toileting" areas? (p. 2)

Agency Response: The features listed were determined to be excluded from coverage under the final rule. See Summary response in the Topic 7 compendium.

Western States Water Council (Doc. #19349)

7.1016 D. Exclusions

The Council understands that the draft rule may specifically exclude certain waters from its definition of WOUS. The Council supports the intent of such a provision and requests that your agencies also include other waters and features that are generally considered to be outside the scope of the CWA.

In addition to groundwater, the following should also be excluded:

1. Farm ponds, stock ponds, irrigation ditches, and the maintenance of drainage ditches, as currently excluded under the CWA’s agricultural exemption;Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

661 2. Man

- made dugouts and ponds used for stock watering or irrigation in upland areas that are not connected to surface waters; 3. Dip ponds that are excavated on a temporary, emergency basis to combat wildfires and address dust abatement;

4. Man

- made pits and quarries that have been excavated in uplands and t hat fill with groundwater but are not connected to surface waters; and 5. Prairie potholes and playa lakes.

The preamble for the rule should also recognize that the states have authority pursuant to their “waters of the state” jurisdiction to protect exclu ded waters, and that excluding such waters from federal CWA jurisdiction does not mean that they will be exempt from regulation. The preamble should further recognize that the states are best suited to understand the unique aspects of their geography, hydr ology, and legal frameworks, and are therefore in the best position to provide the most feasible and effective protections for excluded waters. (p. 3)

Agency Response: As the preamble states, under section 510 of the CWA, unless expressly stated, nothing in the CWA precl udes or denies the right of any state or tribe to establish more protective standards or limits than the Federal CWA. See Summary response in the Topic 7 compendium and the preamble for discussion of prairie potholes and playa lakes.

Coachella Valley Water District, Riverside County, California (Doc. #19455)

7.1017 The Coachella Canal is a man

- made, concrete conveyance that carries Colorado River water 123 miles to supply CVWD's agriculture irrigation system. Ditches, manmade canals and water conveyances should b e specifically excluded from the definition of

Waters of the U.S.

CVWD's 1,000 acres of groundwater replenishment and 330 acres of stormwater retention basins, 73 miles of flood control dikes, and over 100 miles of swales and ditches are currently not juri sdictional, but under the proposed rule it is our understanding

that these facilities meet the definition of Waters of the U.S. These facilities are critical to life in the desert because they capture and infiltrate water into the drinking water aquifer.

I n addition to capturing and infiltrating storm flows, CVWD's flood control facilities protect property and public safety. Groundwater replenishment and flood control facilities should be excluded from the definition of Waters of the U.S. (p. 2)

Agency Response: See Summar y response in the Topic 7 compendium.

Maui County (Doc. #19543)

7.1018 Municipal Separate Storm Water Systems

1. The rule's new definitions for "tributaries" and "other waters" are abstract and contingent on variable field conditions. Under the proposed rule many stormwater systems and features could be considered WOTUS.

2. Waters associated with storm water infrastructure should be specifically excluded from

the WOTUS definition.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

662 3. Under the proposed rule, these stormwater channels could be considered jurisd ictional even though they are part of the MS4 and regulated under an NPDES permit. Regulating such waters under both an NPDES permit and Section 404 of the CWA is overly burdensome and unworkable from a regulatory and compliance standpoint.

4. If stormwate r conveyances are deemed WOTUS, they will be subject to water quality standards. The costs of complying with water quality standards could be extreme.

5. Stormwater or stream channels could be considered "tributaries" or "roadside ditches" under the propos ed rule, and including tributaries by rule is not practical. The proposed rule should be revised to state unequivocally that the definitions of tributary and roadside ditch do not include MS4 facilities, and MS4 facilities are not "waters of the U.S."

6. W aste treatment systems, excluded under 40 CFR 122.3, should include stormwater management and treatment systems. The lack of such language leaves the rule open to interpretation as to whether stormwater controls are considered jurisdictional.

7. Infrastruc ture used to treat, manage, infiltrate or retain urban stormwater runoff should be specifically included in the "waste system treatment" exclusions.

8. The rule should define the systems to which the exemption applies, including

manmade structures and devi ces as well as treatment measures to improve water quality, reduce stormwater volume, control flow rate and flooding, convey stormwater, or a combination of these purposes. (p. 3)

Agency Response: With respect to the jurisdictional status of stormwater control

features as waters of the U.S., please see summary response at 7.4.4. See also summary response at 7.1 regarding the waste treatment system exclusion.

7.1019 Other Waters

3. Reclaimed/recycled water bodies, infrastructure, and uses (land application and groundwater recharg e or disposal) should categorically excluded.

4. While the proposed rule excludes "groundwater, including groundwater drained through subsurface draining systems" there is ambiguity as to the depth of "subsurface hydrology" and at what depth groundwater is included or excluded. "Shallow" groundwater hydrologically connected to WOTUS appears to be included in definition of

"other water."

5. Discharges to groundwater of any depth, permitted by an Underground Injection Control permit issued pursuant to the Saf e Drinking Water Act should be categorically exempt. 9p. 4

– 5)

Agency Response: See Summary response in the Topic 7 compendium. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2.

7.1020 Existing non

-

jurisdictional determination s and existing permits

3. All development associated with mitigation banking should be exempt for the duration of the banking agreement. (p. 5)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

663 Agency Response: The agencies disagree that excluding development associated with mitigation banking would be appropriate, but n ote that such development may be eligible for authorization under streamlined permitting, such as Nationwide

Permits.

Las Vegas Valley Watershed Advisory Committee (Doc. #19570)

7.1021 The EPA and Corps did not propose any changes to the existing exclusion from jurisdiction for waste treatment systems designed consistent with the requirements of the CWA. However, the LVVWAC is concerned that the broad definition of "tributaries" under the Proposed Rule would result in man

- made ditches, canals, and off

- river stora ge ponds that are located on water and wastewater facility sites, but may not formally be part of waste treatment systems, to be subject to regulation as WOUS. This additional regulation would be unnecessarily burdensome, and affect LVVWAC members' ability to conduct timely maintenance of those features.

The EPA and Corps specifically excluded certain waters from its definition of WOUS under the Proposed Rule. The LVVWAC supports the intent of these exclusions, and requests that a clear exemption also be pr ovided for all water management features that are located within water and wastewater facility sites. The LVVWAC requests the following exclusion be added to the Proposed Rule:

 Ditches, canals, ponds, and other man

- made features used in the operation of

wa ter or wastewater treatment and supply systems. (p. 2)

Agency Response: See summary response at 7.1 regarding the waste treatment system exclusion. As discussed in compendium 7 the rule excludes a number waters including many features created in dry land. See compendium 6 regarding ditches.

Chicken & Egg Association of Minnesota (Doc. #19584)

7.1022 We are concerned that the interpretive rule clarifying permit exemption for certain NRCS approved practices is inadequate. Further, practices that work well in one region may

actua lly have negative consequences in another region, rendering a national list of approved practices unworkable. (p. 2)

Agency Response: While not relevant to the this rule, the Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(1)(A) was withdrawn on January 29, 2015.

San Luis Water District (SLWD), Los Banos, California (Doc. #20488)

7.1023 To better balance the broad i nterest of the CWA in protecting the nation's surface waters, while not unduly interfering with our ability to provide water, SLWD recommends the following:

 Water conveyance systems, including ditches, should be excluded from the proposed definition of “wa ters of the United States."

 Water infrastructure, such as recycled water facilities, groundwater recharge basins, storm water retention basins, and constructed wetlands, adjacent toClean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

664 "waters of the United States", should be excluded from jurisdiction under the proposed rule. (p. 1)

Agency Response: See summary response at 7.1 regarding the waste treatment system exclusion. With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4.2. See summary response at 7.4.4 regarding the

final r ule’s policy on storm water control features.

Alpine County Board of Supervisors, County of Alpine, California (Doc. #20492)

7.1024 In addition, water supply systems could be defined as Waters of the U.S. under the new definition of a tributary as they convey f low to downstream water. These could include not only large federal and state water delivery systems, such as the California Aqueduct and the Colorado River Aqueduct, but also reservoirs and other water supply features constructed and managed by local and private interests.

Furthermore, even though your agencies have maintained that there is no intent to impact water reuse facilities, the rule does not clearly address reuse facilities associated with wastewater treatment systems. Reuse facilities were const ructed to augment water supply for irrigation and sometimes drinking water, and were not designed with the objective to meet the parameters of the CWA. The rule needs to clearly state your agencies' intent for water reuse facilities. (p. 2)

Agency Response: With respect t o water delivery, reuse, and reclamation systems, please see summary response at 7.4.2.

Highlands Ranch Metropolitan District, Highlands Ranch, Colorado (Doc. #20499)

7.1025 The Proposed Rule also impacts Highlands Ranch by creating uncertainty regarding the

was te treatment exclusion. The District respectfully requests that this exclusion be

clarified to include stormwater facilitie s constructed to comply with CW A requirements. The operation and maintenance of these stormwater facilities should not be encumbered with the additional requirements of the Proposed Rule. (p. 1)

Agency Response: See summary response at 7.1 regarding the waste treatment system exclusion. See summary response at 7.4.4 regarding the final rule’s policy on

storm water control features.

Atascadero Mutual Wa ter Company (Doc. #20508)

7.1026 AMWC feels that water infrastructure adjacent to "Waters of the U.S." should be excluded from the definition of "Waters of the United States". AMWC currently operates a groundwater recharge basin in the riparian area adjacent to the Salinas River and is concerned that the proposed rule would place a substantial regulatory burden on operating and/or expansion of this facility. (p. 1)

Agency Response: With respect to water delivery, reuse, and reclamation systems, please see summary response at 7.4 .2.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

665 A TTACHMENTS AND R EFERENCES

Comments included above in this document discuss the Proposed Rule, and some include citations to various attachments and references, which are listed below. The agencies do not respond to the attachments or references thems elves, rather the agencies have responded to the substantive comments themselves above, as well as in other locations in the administrative record for this rule (e.g., the preamble to the final rule, the TSD, the Legal Compendium). In doing so, the agenci es have responded to the commenters’ reference or citation to the report or document listed below as it was used to support the commenters’ comment. Relevant comment attachments include the following:

Anderson, William A., Hunton & Williams. June 8, 1980. Letter to Douglas M. Costle, Adm’r, EPA (July 8, 1980), with attached UWAG Briefing Paper, The Waste Treatment System Exclusion from EPA’s Definition of Waters of the United States. (Doc. #15016.1)

Associated General Contractors of America. Exhibit 1: Examples of Ponds as a Best Management Practice To Protect Surface Waters (Doc. #14602, p. 20

- 21)

County of Los Angeles and Los Angeles County Flood Control District (LACFSD), California

“Attachment B

– Typical Detention Basin” (Doc. #15620, p. 15)

Florida Administrative Code. 62

- 340.750 Exemption for Surface Waters or Wetlands Created by Mosquito Control Activities. (Doc. #4847.2)

Patagonia Area Resource Alliance and Earthworks. October 2014. The Hermosa Mine Proposal: Potential Impacts to Pa tagonia’s Water Supply . (Doc. #16394.6)

Southeast Stormwater Association. Exhibit A: 9 Mile Irrigation Reservoir. (Doc. #16534, p. 18)

Southeast Stormwater Association. Exhibit C: Stock Watering Pond. (Doc. #16534, p. 19)

S.S. Papadopulos & Associates, Inc. et al. March 2014. Environmental Impact Report Golden Sands Dairy Saratoga Township Wisconsin . (Doc. #16645.2)

USGS & US Department of the Interior. Trends in Streamflow of the San Pedro River, Southeastern Arizona, and Regional Trends in Precipitati on and Streamflow in Southeastern
Arizona and Southwestern New Mexico . Professional Paper 1712. (Doc. #16394.5)

Winter, Thomas C., Judson W. Harvey, O. Lehn Franke and William M. Alley. 1998. Ground Water and Surface Water A Single Resource: U.S. Geologic al Survey Circular 1139 . (Doc. #16394.4)

In addition, c ommenters submitted the following relevant references. These are copied into this document as they were submitted by commenters. HW has not verified the references, or the validity of hyperlinks.Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

666 3 0 C.F.R. § 816.43 to 816.49. (Doc. #10750, p. 19)

30 C.F.R. § 816.41 (Doc. #10750, p. 19)

40 C.F.R. § 35.2005 (Doc. #16584, p. 2)

40 C.F.R. 122.2. (Doc. #14589, p. 26)

40 C.F.R. § 122.26 (Doc. #15822.1, p. 68; Doc. #14589, p. 25 )

77 CFR at 10,269

- 10,273 (Doc. #15254, p. 23)

33 C.P.R. § 328.5 (Doc. #14420, p. 13)

45 Fed. Reg. 33290, 33298 (May 19, 1980) (Doc. #15377, p. 3)

51 Fed. Reg. at 41206, 41217 . (Doc. #10750, p. 17 ; Doc. #15059, p. 14 )

53 Fed. Reg. at 20765 . (Doc. #10750, p. 17)

63 Fed. Reg. 51164, 51183

- 84. (Doc. #15123, p. 13; Doc. #16537, p. 6)

64 FR 39252, 39332 (Doc. #10750, p. 18)

73 Fed. Reg. 33697, 33704 (June 13, 2008) (Doc. #15822.1, p. 68)

79 Fed. Reg. at 48,300, 48,383

- 401 (Aug. 15, 2014). (Doc. #15016, p. 29)

30 U .S.C. § 1265(b)(10) (Doc. #10750, p. 19)

33 U.S.C. § 1631 (14) (Doc. #14589, p. 26)

33 U.S.C. § 1365(a). (Doc. #15431, p. 15)

Administrative Procedure Act. 5 U.S.C. § 553 (Doc. #14564, p. 16)

Alaska Statute §27.19.020 (Doc. #14412, p. 50)

Adler, Robert W. 2014. The Decline and (Possible) Renewal of Aspiration in the Clean Water

Act , 88 Wash. L. Rev. (Doc. #15431, p. 19)

Allen, David et al. Science Advisory Board. September 17, 2014. Consideration of the Adequacy

of the Scientific and Technical Basis of the EPA’s proposed rule titled Definition of Waters of the United States Under the Clean Water Act. (Doc. #15233, p. 2)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

667 American Iron and Steel Inst. v. EPA , 155 F.3d 979, 996 (D.C. Cir. 1997) (Doc. #15822.1, p. 67 & 68)

American Water Works Association. 1990. Water Quality and Treatment (4th ed.). (Doc. #15016, p. 68)

Arizona Department of Environmental Quality §402 Construction General Permit Guidance (Doc. #14407, p. 12)

Arizona Revised Statutes §27

- 921 (Doc. #14412, p. 50)

Bernha rdt and Palmer. 2011. The Environmental Costs of Mountaintop Mining Valley Fill Operations for Aquatic Ecosystems of the Central Appalachians. Ann. N.Y. Acad. Sci. (Doc. #14564, p. 14)

Bomberger, Brown and Jorgensen. 2010. Interior Least Tern and Piping P lover Monitoring, Research, Management, and Outreach Report/at the Lower Platte River, Nebraska. (Doc. #14420, p. 14)

Bowen, Mark W., et al. 2010. "A GIS

- based approach to identify and map playa wetlands on the High Plains, Kansas, USA." Wetlands 30.4. (D oc. #14599, p. 2)

Bragg v. West Virginia Coal Association . 248 F.3d (4th Cir. 2001). (Doc. #15415, p. 12)

Bulter, Henry N. and Jonathan R. Macey. 1996. Using Federalism to Improve Environmental Policy. (Doc. #15431, p. 15)

California Public Resources Co de §2770(a) and (c)(8)(A) (Doc. #14412, p. 50)

California Sportfishing Protection Alliance v. California Annonia Company , 2007 WL 273847 (E.D.Cal) (Doc. #19540, p. 112)

California Water Code § 13050(e) (Doc. #15620, p. 7)

Calvert Cliffs’ Coordinating Comm. v. Atomic Energy Comm’n . 449 F.2d (D.C. Cir. 1971) (Doc. #15431, p. 15)

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA . 8 F. Supp. 3d (S.D.N.Y. 2014). (Doc. #15016, p. 86; Doc. #15018.1, p. 13; Doc. #15065, p. 3; Doc. #15161, p. 11 )

CER CLA, 42 U.S.C. § 9604(a)(1)(A)

- (B) (2006). (Doc. #15431, p. 11)

Chevron, U.S.A., Inc. v. Natural Res. Def. Council , 467 U.S. (1984) (Doc. #14564, p. 14, 15, &

16 ; Doc. #15377, p. 2; Doc. #15431, p. 14 & 15; Doc. #16394, p. 12 & 14)

Coeur Alaska, Inc. v. Se. Alaska Conservation Council , 129 S. Ct. (2009) (Doc. #19540, p. 108)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

668 Colorado Code of Regulations. 5 CCR 1002

- 11. (Doc. #15258, p. 6 )

Crumpton, William, Arnold van der Valk, Will Hoyer, and David Osterberg. May 2012.

"Wetland Restoration in Iowa Chal lenges and Opportunities." The Iowa Policy Project

. www.IowaPolicyProject.org (Doc. #14738.1, p. 8)

Davis, Mackenzie, and David Cornwell. 1991. Introduction to Environmental Engineering (2d ed.). (Doc. #15016 , p. 68)

DeSimone, Leslie A., Pixie A. Hamilton, and Robert J. Gilliom, Quality of Water from Domestic

Wells in the United States . United States Geological Society (USGS) National Water

- Quality Assessment Program. http://water.usgs.gov/nawqa/studies/domes tic_wells/. (Doc. #15431, p. 5)

Dreisen, David M. 2014. Purposeless Construction . Wake Forest L. Rev. (Doc. #15431, p. 19)

Envt’l Def. Ctr. v. EPA , 344 F. 3d (9th Cir. 2003) (Doc. #15161, p. 8 & 9; Doc. #19540, p. 107)

Federal Aviation Administration. A dvisory Circular J50/5200

- 32: Reporting Wildlife Aircraft Strikes. (Doc. #14766, p. 2)

Federal Aviation Administration. Advisory Circular 150/5200

- 33: Hazardous Wildlife Attractants On or Near Airports. (Doc. #14766, p. 2)

Federal Aviation Administration. Significant Wildlife Strikes to Civil Aircraft in the United States (1990

- 2014)

. http://www.faa.gov/airports/airpor t_safety/wildlife/resources/media/sig_strikes_1990_2014.p

df . (Doc. #14766, p. 2)

Federal Aviation Administration. Wildlife Hazard Management at Airports

- A Manual for Airport Personnel

. http://www.faa.gov/airports/airport_safety/wildlife/resources/media/2005_FAA_Manual_co mplete.pdf . (Doc. #14766, p. 2)

Florida Administrative Code 62

- 520.310. (Doc. #13029, p. 45)

Florida State Statutes, Section 4 03.301 and Guidance Memo DOM

- 96

- 01. April 26, 1996. (Doc. #16647, p. 13)

Fracfocus.org. Nov. 12, 2014. What Chemicals are Used, Frac Focus Chemical Disclosure Registry. https://fracfocus.org/chemical

- use/what

- chemicals

- are

- used. (Doc. #15431, p. 12)

Food & Drug Admin. v. Brown & Williamson Tobacco Corp. , 529 U.S. (U.S. 2000) (Doc. #15221, p. 3)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

669 Food Security Act. 1985. (Doc. #15023, p. 22)

Foster vs. EPA (Doc. #15192.1, p. 3)

Glennon, Robert. 2009. Unquenchable: America’s Water Crisis and What to Do Ab out It. (Doc. #15431, p. 4)

Gogebic Taconite, LLC. June 17, 2013. Preapplication Notice to the Wisconsin Department of

Natural Resources. Available at http://dnr.wi.gov/topic/Mines/documents/gogebic/GTACPreapplicationNotice20130617.pdf. (Doc. #16645, p. 7)

Goldenberg, Suzanne. February 8, 2014. Why Global Water Shortages Pose Threat of Terror

and War. The Guardian. Available at http://www.theguardian.com/environment/2014/feb/09/global

- water

- shortages

- threat

- terror

war (Doc. #15431, p. 5)

Golden Gate Au dubon Society, Inc. v. U.S. Army Corps of Engineers (N.D. Cal. 1988) 717 F.Supp. (Doc. #18793, p. 4)

Green, Timothy R. et al. 2011. Beneath the Surface of Global Change: Impacts of Climate Change on Groundwater . Journal of Hydrology. (Doc. #15431, p. 4)

Groffman, P.M., E.A. Holland, D.D. Myrold, G.P. Robertson, and X. Zou. 1999. Denitrification. In: Standard soil methods for long

- term ecological research (Robertson, G.P., D.C. Coleman, C.S. Bledsoe, and P. Sollins, eds.). Oxford University Press, New York (Doc. #19540, p. 114)

Grumbles, Benjamin H. Mar. 1, 2006. Memorandum to Hon. John Paul Woodley Assistant Secretary of the Army (Civil Works). (Doc. #10750, p. 6; Doc. #15016, p. 82; Doc. #15377, p. 4 )

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found . 484 U.S. (1987) (Doc. #15431, p. 15)

Haukos and Smith. September 2003. Playa Wetland Regulation, Wetlands 23(3 ). (Doc. #15540, p. 28)

Hawai‘i Wildlife Fund v. County of Maui . F.Supp.2d (D. Ha. 2014). (Doc. #14564, p. 12; Doc. #15431, p. 15, 20, & 21; D oc. #16394, p. 14; Doc. #16413, p. 57 )

Howard, J. and Merrifield, M. 2010. Mapping Groundwater Dependent Ecosystems in California . (Doc. #15233, p. 10; Doc. #16394, p. 14 )

Hughes Aircraft Co. v. U.S. (1997) 520 U.S (Doc. #18793, p. 4)

Hughes, Catherine E. et. al. 2011. Climate Change and Groundwater . (Doc. #15431, p. 4)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

670 Institute for Groundwater Ecology: info@groundwaterecology.de (Doc. #16935, p. 6)

IPCC. 2014. Climate Change 2014: Synthesis Report . Available at http://www.ipcc.ch/pdf/assessmentreport /ar5/syr/SYR_AR5_SPM.pdf. (Doc. #15431, p. 4)

Klee, Ann R., Former General Counsel, and Benjamin H. Grumbles, Former Assistant Administrator for Water, EPA. August 5, 2005. Memo to Regional Administrators. (Doc. #14407, p. 12 ; Doc. #15822.1, p. 68; Doc. # 19540, p. 108 )

Langston, Linda, President, Nat’l Ass’n of Counties . 2014. Disaster Mitigation: Reducing Costs & Saving Lives: Hearing before the Subcomm. on Econ. Dev., Pub. Bldgs. & Emergency Mgmt., H. Comm. on Transp. & Infrastructure, 113th Cong. (Doc . #15081, p. 18)

Legal Environmental Assistance Foundation v. U.S. EPA 276 F.3d 1253 (11th Cir. 2001) (Doc. #15431, p. 12)

Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc. , 568 U.S. 133 S. Ct. (2013). (Doc. #15620, p. 11; Doc. #15161, p. 8 & 11)

Malone, Linda A. 1990. The Necessary Interrelationship Between Land Use and Preservation of Groundwater Resources. UCLA J. Envtl. L. Pol'y. (Doc. #15431, p. 11)

Makowski, Anna. Beneath the Surface of the Clean Water Act . Oregon Law Review, Vol. 91. (Doc. #16935, p. 9)

Mersel, M.K., Lichvar, R.W. 2014. A Guide to Ordinary High Water Mark (OHWM) Delineation for Non

- Perennial Streams in the Western Mountains, Valleys, and Coast region of the United States. U.S. Army Corps of Engine ers, Engineer Research and Development Center, Cold Regions Research and Engineering Laboratory, TR

- 14

- 13. http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/west_mt_finalsup p_aug2014.pdf. (Doc. #15059, p. 14)

Michigan Department of Environmental Quality. January 2010. Update on Selenium Projects at Tilden and Empire Mines, Vol. 1. Available at http://www.michigan.gov/documents/deq/wrd

- npdes

- EmpireTilden

- Vol1_364698_7.pdf. (Doc. #16645, p. 7)

Mining Contamination of Groundwater: The Need for Legislation and Reform . 1998. U. Denv. Water L. Rev. (Doc. #15431, p. 11)

Montana Code §82

- 4

- 336 (Doc. #14412, p. 50)

National Ass'n of Manufacturers v. Dept. of Labor . 159 F.3d (D.C. Cir. 1998) (Doc. #14564, p. 15)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

671 National Pork Producers Cou ncil v. EPA , 635 F.3d (5th Cir. 2011) (Doc. #15822.1, p. 67)

National Research Council. 2008. “Urban Stormwater Management in the United States”. (Doc. #14511, p. 6)

Nat’l Treasury Emps. Union v. Chertoff . 452 F.3d (D.C. Cir. 2006) (Doc. #14564, p. 15)

Natural Resources Defense Council, Inc. v. Costle. 568 F.2d (D.C. Cir. 1977) (Doc. #14564, p. 15)

Natural Resources Defense Council, Inc. v. County of Los Angeles , 673 F.3d (9th Cir. 2011), (Doc. #15620, p. 11; Doc. #15431, p. 15; Doc. #19540, p. 108)

Na tural Resources Conservation Service. November 2010. National Food Security Act Manual. M_180_NSFAM_514_D, Fifth Edition. (Doc. #14738.1, p. 6)

Natural Resources Conservation Service. "Guidance on Conducting Wetland Determinations for the Food Security Ac t and Section 404 of the Clean Water Act." http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs143_007868.pdf . (Doc. #14738.1, p. 8)

Natural Resources Conservation Service. "Wetland Fact Sheet

- Prior Converted Cropland." http://www.nrcs.usda.gov/wps/portal/nrcs/detail/vt/programs/?cid=nrcs142p2_010517 (Doc. #13024, p. 8)

National Research Council. 1995. "Wetlands: Characteristics and Boundaries." National Academy Press. Washington D.C. (Doc. #14738.1, p. 5)

Neprash, R. (Presenter). November 6, 2014. Viewpoints: Potential Impacts of the Waters of the U.S. Rulemaking on Stormwater Infrastructure [Webcast]. Alexandria, VA: Water Environment Federation. Retrieved from http://www.wef.org/MS4_WOTUS/. (Doc. #15140, p. 7)

New Hope Power Company and Okeelanta Corporation v. U.S. Corps of Engineers and Stockton, 746 F. Surma 2d (S.D. Fla. 2010) (Doc. #14081, p. 15)

New York State Department of Environmental Conservation. Definition of groundwater. (Doc. #16935, p. 6)

Nolan, Bernard T., Barbara C. Ruddy, Kerie J. Hitt, and Dennis R. Helsel. January 1998. “A

National Look at Nitrate Contami nation of Ground Water.” Water Conditioning and Purification, v. 39, no. 12. (Doc. #6981, p. 1)

Northern California River Watch v. City of Healdsburg. 496 F. 3d. (9th Cir) (2007) (Doc. #14412, p. 50; Doc. #16645, p. 7; Doc. #19540, p. 112 )Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

672 North Carolina Department of Environment and Natural Resources. Stormwater BMP manual, Chapter 13 "Public Airports." http://portal.ncdenr.org/c/document_library/get_file?uuid=c7a8e5a2

- f141

- 4612

- 817a

43c48c2f108b&groupId=38334 (Doc. #14766, p. 2)

N.C.G.S. 143

- 214.7(3c) & (c4) http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_143/GS
_143

- 217.7.html (Doc. #14766, p. 2)

Office of the President. October 2014. Priority Agenda: Enhancing the Climate Resilience of

America’s Natural Resources. Counc il on Climate Preparedness and Resilience. Available at http://www.whitehouse.gov/sites/default/files/docs/enhancing_climate_resilience_of_america s_natural_resources.pdf (Doc. #19540, p. 110)

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. (194 1) (Doc. #15233, p. 2)

Ohio Administrative Code 3745

- 1

- 02(13)(77) (Doc. #15246, p. 2)

Ohio Revised Code R.C. 6111.01(F) and (G) (Doc. #15246, p. 2)

Ohio Valley Environmental Coal v. Aracoma Coal Co. , 556 F.3d (4th Cir. 2009) (Doc. #10750, p. 7 & 15; Doc . #13074, p. 12; Doc. #15123, p.13; Doc. #15437, p. 60; Doc. #15377, p. 4 & 5; Doc. #16537, p. 6; Doc. #17921.1, p. 71; Doc. #19540, p. 113 )

Oregon Revised Statutes §517.750 (Doc. #14412, p. 50)

Pennsylvania Federation of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d (3d Cir. 2002) (Doc. #15415, p. 12)

Pennsylvania State University . 2011.

Porter

- Cologne Act (California). (Doc. #17920, p. 4)

Quivira Min. Co. v. E.P.A. , 765 F.2d (10th Cir. 1985). ( Doc. #15050, p. 103 ; Doc. #15431, p. 19; Doc. #16460, p. 25)

Ranjan, Priyantha, So Kazama and Masaki Sawamoto. 2006. Effects of climate change on coastal fresh groundwater resources. Global Environmental Change. Available at http://espace.library.curtin.edu.au/cgi

- bin/espace.pdf?file=/2011/01/25/file_1/135411 (Doc. #15431, p. 4 )

Rapanos v. United States 547 U.S. 715 (2006) (Doc. #14564, p. 15; Doc. #15233, p. 2; Doc. #15368, p. 14; Doc. #15540, p. 24; Doc. #9842, p. 30; 15016, p. 72; Doc. #15089, p. 3; Doc. #7494.1, p. 5 & 6; Doc. #16645, p. 6; Doc. #18793, p. 5 & 6; Doc. #15822.1, p. 17; Doc. #19540, p. 107 )Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

673 RCRA, 42 U.S.C. § 6973(a) (2011). (Doc. #15431, p. 11)

Regas, Diane, et al. May 17, 2002. Memo to EPA Director Region X CWA Regulation of Mine Tailings. (Doc. #10750, p. 6)

Robinson Township v. Commonwealth of Pennsylvania , 83 A.3d (Pa. 2013) (Doc. #15431, p. 12)

Rodewald. September 2, 2014. Comments to the chartered SAB on the Adequacy of the Scientific and Technical Basis of the Proposed Rule Titled “Definition of ‘Waters of the

United States’ Under the C lean Water Act. (Doc. #15233, p. 2)

Rodgers, Jr., William H. 2014. Environmental Law § 4.8. (Doc. #15431, p. 13)

Salzman, James. 2013. Drinking Water: A History . (Doc. #15431, p. 5)

S. Conf. Rep. No. 92

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- 33757 (1972) (statement of Rep. Dingell) (Doc. #15233, p. 2)

Safe Drinking Water Committee, Drinking Water and Health. 1989. V. 9: Selected Issues in Risk Assessment. National Academy Press. (Doc. #15431, p. 12)

SD WA, 42 U.S.C. §300. 2012. (Doc. #15431, p. 11 & 13)

S.D. Warren Co. v. Maine Bd. of Envtl. Prot. , 547 U.S. 370, 379 n.5 (2006) (Doc. #14564, p. 15)

Sheldon, Dyanne, Tom Hruby Ph.D., Patricia Johnson, Kim Harper, Andy McMillan, Teri Granger, Stephen Stanley, Erik Stockdale. "Wetlands in Washington State Volume 1: A Synthesis of the Science." Ecology Publication #05

- 06

- 006. Department of Ecology

Publica tions Distribution Office. http://www.ecy.wa.gov/biblio/0506006.html (Doc. #14738.1, p. 6)

Solley and others. 1993 (Doc. #6981, p. 1)

Solid Waste Agency of Northern Cook County v. U.S. Army Corps o f Engineers , 531 U.S. 159 (2001) (Doc. # 13596 , p. 23 ; Doc. #14460, p. 5; Doc. #14963, p. 13; Doc. #15089, p. 3; Doc.

# 15188.2 , p. 1 ; Doc. # 15540 , p. 27; Doc. #16652, p. 4 )

Spalding and Exner. 1993 (Doc. #6981, p. 1)

S. Rep. No. 92

- 414 (1971), reprinted in 2. A Legislative History of the Water Pollution Control Act Amendments of 1972 (Doc. #15016, p. 71; Doc. #15431, p. 15 )

S. Rep. No. 92

- 1236 (1972) (Conf. Rep.), reprinted in 1. A Legislative History of the Water

Pollution Control Act Amendments of 1972 (Doc. #15016, p. 71)

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe , 541 U.S. (2004) (Doc. #15161, p. 9 & 11)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

674 Stoner, Nancy. Jul. 7, 2014. Setting the Record Straight on Waters of the US, EPA CONNECT

BLOG. http://blog.epa.gov/epaconnect/2014/06/setting

- the

- record

- straight

- on

- wous/ . (Doc. #15536, p. 30)

Surface Mine Control and Reclamation Act of 1977 ("SMCRA") (Doc. #15415, p. 12)

Texas Administrative Code Title 16 , Part 1. Rule § 12.339(c). Permanent Program Performance

Standards

- Surface Mining Activities. Hydrologic Balance. (Doc. #10750, p. 19)

Title 14: Aeronautics and Space, Part 139

- Certification of Airports, 14 CFR 139. http://www.faa.gov/airponslairporl_satety/part139_cert/ (Doc. #14766, p. 2)

Tiner. 2003. “Geographically Isolated Wetlands of the United States.” Wetlands 23(3). (Doc. #15540, p. 27)

Uddameri, Venkatesh. Importance of Groundwater to the US Economy. National Ground Water Association presentation. Available at http://water.epa.gov/action/importanceofwater/upload/21

- Uddameri.pdf . (Doc. #15431, p. 4)

U.S. Army Corps of Engineers. 1987. Wetland Delineation Manual. (Doc. #15141, p. 3; Doc. #18793, p. 5)

U.S. Army Environmental Center. 2002. Guidance to Site Managers at Army Installations: Groundwater Evaluation and Development of Remediation Strategies where Aquifer Restoration may be Technically Impracticable. (Doc. #15 431, p. 11)

U.S. Defense Intelligence Agency. 2012. Global Water Security . Available at http://www.dni.gov/files/documents/Newsroom/Press%20Releases/ICA_Global%20Water% 20Security.pdf. (Doc. #15431, p. 6)

U.S. Department of Defense. 2014. 2014 Climate Cha nge: Adaptation Roadmap . Available at http://www.acq.osd.mil/ie/download/CCARprint.pdf. (Doc. #15431, p. 5)

U.S. Environmental Protection Agency. Development Document for Final Effluent Limitations Guidelines, New Source Performance Standards, and Pretrea tment Standards for the Steam Electric Point Source. (Doc. #15016, p. 67)

U.S. Environmental Protection Agency. National Menu of Stormwater Best Management

Practices. http://water.epa.gov/polwaste/n pdes/swbmp/ (Doc. #14511, p. 5)

U.S. Environmental Protection Agency http://water.epa.gov/scitech/wastetech/guide/steamelectric/upload/Steam

Electri c_DD_1982.pdf (Doc. #15016, p. 68)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

675 U.S. Environmental Protection Agency

. http://water.epa.gov/scitech/wastetech!guide/steam

electric/proposed.cfm . (Doc. #16413, p. 64)

U.S. Environmental Protection Agency http://water.epa.gov/type/watersheds/monitoring/upload/2003_07_03_monitoring_305bguide _v1ch5.pdf (Doc. #16935, p. 6)

U.S. Environmental Protection Agency . Coal Combustion Residuals

- Proposed Rule. http://www.epa.govj oswjnonhazjindustrialjspecialjfossiljccr

- rulej (last visited Nov. 12, 2014). (Doc. #16413, p. 63)

U.S. Environmental Protection Agency . Ground Water Cleanup at Superfund Sites. http://www.epa.gov/superfund/health/conmedia/gwdocs/ brochure.htm (Doc. #15431 , p. 11)

U.S. Environmental Protection Agency. www.epa.gov/greeninfrastructure . (Doc. #15186, p. 5; Doc. #19540, p. 109 )

U.S. Environmental Protection Agency. http://water.epa.gov/type/wetlands/vernal. cfm (Doc. #15822.1, p. 22)

U.S. Environmental Protection Agency. http://water.epa.gov/polwaste/npdes/stormwater/Municipal

- Separate

- Storm

- Sewer

- System

MS4

- Main

- Page.cfm. (Doc. #19540, p. 106)

U.S. Environmental Protection Agency. Sept. 1988. EPA/625/1

- 88/022, Design Manual: Constructed Wetlands and Aquatic Plant Systems for Municipal Wastewater Treatment

. Available at http://water.epa.gov/type/wetlands/upload/design.pdf. (Doc. #15016, p. 69)

U.S. Environmental Protection Agency. May 3, 1990. Memorandum: Clean Water Act Section 404 Regulatory Program and Agricultural Activities. http://water.epa.gov/lawsregs/guidance/wetlands/cwaag.cfm

.

U.S. Environmental Protection Agency Region 6. February 8, 1993. National Pollutant Discharge Elimination System General Permit and Reporting Requirements for Discharges From Concentrated Animal Feeding Operations. 58 Fed. Reg. 7610, 7620

- 21. (Doc. #14564, p. 14)

U.S. Environmental Protecti on Agency

. Sept. 1993. EPA/832

- R

- 93

- 005, Constructed Wetlands for Waste Water Treatment and Wildlife Habitat, 17 Case Studies . Available at http://www.epa.gov/owow/wetlands /pdf/ConstructedWetlands

- Complete.pdf . (Doc. #15016, p. 70)

U.S. Environmental Protection Agency. Sept. 24, 1998. State Program Requirements; Approval of Application to Administer the NPDES Program: Texas . 63 Fed. Reg. 51,164, 51,183

- 84. (Doc. #15437, p. 60)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

676 U.S. Environmental Protection Agency

. September 1999. Storm Water Technology Fact Sheet:

Wet Detention Ponds. Office of Water. EPA 832

- F

- 99

- 048. Available at http://water.epa.gov/scitech/wastetech/upload/2002_06_28_mtb_wetdtnpn.pdf (Doc. #19540, p. 11 3)

U.S. Environmental Protection Agency

. Oct. 2000. Guiding Principles for Constructed

Treatment Wetland . Available at http://water.epa.gov/type/wetlands/constructed/upload/guiding

- principles.pdf . (Doc. #15123, p. 13; Doc. #15437, p. 60; Doc. #16537, p. 6)

U.S. Environmental Protection Agency. 2001. Ground Water Report to Congress. Available at http://www.epa.gov/safewater/sourcewater/pubs/rpt

- congress_gw_2001.pdf . (Doc. 15431, p. 3)

U.S. Environmental Protection Agency Region 4. November 14, 2001. Final Region 4 Guidelines for Reconcilin g Storm Water Management and Water Quality and Resource

Protection Issues . (Doc. #16647, p. 12)

U.S. Environmental Protection Agency. July 2005. EPA

- 841

- B

- 05

- 003, National Management

Measures to Protect and Restore Wetlands. Available at http://www.epa.gov/owow/nps/wetmeasures/ (Doc. #15016, p. 69)

U.S. Environmental Protection Agency. July 2005. Riparian Areas for the Abatement of Nonpoint Source Pollution . Available at http://www.epa.gov/owow/nps/wetmeasures/ (Doc. #15016, p. 69)

U.S. Environmental Protection Agency

. December 1999, rev. December 2005. Fact Sheet 2.2 (EPA 833

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- 004), Storm Water Phase II Final Rule, Urbanized Areas: Definition and Description. Available at http://cfpub.epa.gov/npdes/stormwater/swfinal.cfm. (Doc. #19540, p. 107)

U.S. Environmental Protection Agency . 2011. “A Strategic Agenda to Protect Waters and Build More Livable Communities Through Green Infrastructure.” http://water.epa.gov/infrastructure/greeninfrastructure/upload/gi_agenda_protectwaters.pdf (Doc. #15186, p. 5; Doc. #19540, p. 109)

U.S. Environmental Pr otection Agency. Apr. 2011. Draft Guidance on Identifying Waters Protected by the Clean Water Act. Available at http://www.epa.gov/tp/pdf/wous_guidance_4

- 2011.pdf . (Doc. #15536, p. 27)

U.S. Environmental Protection Agency . 2012. Drinking Water Contaminants. http://water.epa.gov/drink/contaminants/#List; SDWA, 42 U.S.C. § 300(f)(1)(c)

- (d) (Doc. #15431, p. 12)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

677 U.S. Environmental Protection Agency. April 2013. Environmental Assessment for the P roposed Effluent Limitation Guidelines and Standards for the Steam Electric Power Generating Point Source Category 3

- 14 , Docket No. EPA

- HQ

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U.S. Environmental Protection Agency, September 2013. Connectivity of Stream and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (External Review Draft, EPA/600/R

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Doc. #15372, p. 29)

U.S. Environmental Protection Agency Science Advisory Board Review (Doc. #14564, p. 11, 12, & 13; Doc. #15372, p. 29 & 30 ; Doc. #19569, p. 5; Doc. #15210, p. 2; Doc. #15383, p. 4; Doc. #16394, p. 12; Doc. #16413, p. 56; Doc. #17444)

U.S. Environmental Protection Agency. May 2014. EPA

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- 14

- 001, Economic Analysis for the Final Section 316(b) Existing Facilities Rule . Available at http://water.epa.gov/lawsregs/lawsguidance/cw a/316b/upload/Cooling

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U.S. Environmental Protection Agency

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U.S. Environmental Protection Agency. 2014. Sole Source Aquifer Protection Program. http://water.epa.gov/infrastructure/drink ingwater/sourcewater/protection/solesourceaquifer.cf m (Doc. #15431, p. 13)

U.S. Environmental Protection Agency & U.S. Army Corps of Engineers. Questions and

Answers

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- waters

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- pdf . (Doc. #13029, p. 44; Doc. #15186, p. 6; Doc. #19540, p. 106; Doc. #19540, p. 108 )

U.S. General Accounting Office. February 2 004. Waters and Wetlands: Corps of Engineers Needs to Evaluate its District Office Practices in Determining Jurisdiction . (Doc. #16652, p. 5)

U.S. Geological Survey. Comparison of Dissolved Atrazine in Select Principal Aquifers, http://water.usgs.gov/nawq a/studies/praq/images/ComparisonGraphics/atrazine.jpg. (Doc. #15431, p. 5)

U.S. Geological Survey. 1998. Ground Water and Surface Water, A Single Resource. U.S. Geological Survey Circular 1139. Available at http://pubs.usgs.gov/circ/circ1139/#pdf . (Doc. #15431, p. 3)

U.S. Geological Survey. 1999. Sustainability of Ground

- water Resources: U.S. Geological Survey Circular 1186. (Doc. #15431, p. 14)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

678 U.S. Geological Survey. 2009. Southwest Principal A quifers Regional Ground

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- 3015.pdf. (Doc. #15431, p. 5)

U.S. Government Accountability Office. 2011. Improvements in Implementation are Needed to

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- 11

- 803T. Available at http://www.gao.gov/products/GAO

- 11

- 803T. (Doc. #15431, p. 13)

U.S. Government Accountability Office. 2014. EPA Has Improved Its Unregulated Contaminant Monitoring Program, but Additional Action Is Needed GAO

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- 103. Available at http://www.gao.gov/products/GAO

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- 103. (Doc. #15431, p. 13)

U.S. House of Representatives. http://science.house.gov/epa

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United States v. Riverside Bayview Homes , 474 U.S. (1985). (Doc. #15233, p. 2; Doc. #18793, p.

5 )

United States v. TGR Corp. , 171 FJd (2d Cir. 1999) (Doc. #10750, p. 15; Do c. #17921.1, p. 71 )

Utility Air Regulatory Group v. EPA , 134 S. Ct. (2014) (Doc. #15228, p. 8)

U.S. Department of Agriculture , Farm Service Agency. "Conservation Reserve Program ." http://www.fsa.usda.gov/FSA/webapp?area=home&subject=copr&topic=crp (Doc. #13024, p. 8)

U.S. Department of Agriculture. "2012 Census of Agriculture." http://www.agecensus.usda.gov/Publications/2012/Full_Report/Volume_1_Chapter _1_US/

. (Doc. #13024, p. 21)

United States Department of Transportation Federal Aviation Administration and United States Department of Agriculture Animal and Plant Health Inspection Service Wildlife Services. Memorandum of Understanding. June 2005 http://di gitalcommons.unl.edu/cgi/viewcontent.cgi?article=1015&context=birdstrikeother (Doc. #14766, p. 2)

Valdes v. United States . 475 F.3d (D.C. Cir. 2007) (Doc. #14564, p. 15)

Vermont NRCS. Wetland Fact Sheet

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Virgi nia Administrative Code. 9 VAC 25

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- 10. (Doc. #18821, p. 3)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

679 Virginia DOT v. EPA , 2013 WL 53741 (E.D. Va., Jan. 3, 2013) (Doc. #15161, p. 8)

Votteler, Todd H. and Thomas A. Muir. "Wetland Management and Research

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Washington Revised Code §78.44.111 (Doc. #14412, p. 50)

Williams, Marcia, EPA Office of Solid Waste Director. Apr. 2, 1986. Memo to James H. Scarbrough, EPA Region IV Residuals Management Branch Chief, attachment B. (Doc. #15123, p. 12; Doc. #15437, p. 59 ; Doc. #16537, p. 5 )

Williams, W. June 11, 2014. Potential Impacts of the Proposed Changes to the Clean Water Act

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Wilcher, LaJuana S., EPA Assistant Administrator. Oct. 2, 1992. Memorandum to Charles E. Findley, D irector, Water Div., Region X, U.S. Army Corps of Eng‘rs, on Clean Water Act Regulation of Mine Tailings Disposal. (Doc. #10750, p. 6 ; Doc. #15123, p 13; Doc. #15437, p. 60 ; Doc. #15377, p. 4; Doc. #16537, p. 6 )

Wisconsin Department of Natural Resources, Gogebic Taconite, LLC, potential mining project, available at http://dnr.wi.gov/topic/mines/gogebic.html. (Doc. #16645, p. 7)

Wisconsin Department of Natural Resources. October 2006. Waters designated in 2006 as Exceptional or Outstanding Resource Water s. Available at http://dnr.wi.gov/topic/SurfaceWater/oerw/list1006.pdf (Doc. #16645, p. 7)

West Virginia Coal Association v. Reilly. 728 F. Supp. (S.D. W.Va. 1989). (Doc. #15123, p. 12;

Doc. #15437, p. 59 ; Doc. #15377, p. 3 & 4; Doc. #16537, p. 5; Doc. #17921.1, p. 71; Doc. #19540, p. 112 )

West Virginia Code 8 22

- 3

- 1 (Doc. #15415, p. 14)

West Virginia Code 22

- 4

- 1 (Doc. #15415, p. 14)

West Virginia Horizontal Well Control Act, W.Va. Code 9 22

- 6A

- 1 (Doc. #15415, p. 14)

West Virginia Quarry Reclamation Act, W.Va. Code § 22

- 4

- 1, et seq. (Doc. #15415, p. 13)

http://wisconsinwatch.org/2014/10/judge

- blames

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- county

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– Topic 7: Features and Waters Not Jurisdictional

680 Wood, Mary Christina. 1988. Regulating Discharges into Groundwater: The Crucial Link in

Pollution Control Under the Clean Water Act . Harv. Envtl. L. Rev. (Doc. #15431, p. 20)

S UPPLEMENTAL R EFERENCES :

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Mary Christina Wood, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under the Clean Water Act, 12 Harv. Envtl. L. Rev. 569, 576 (1988). (Doc. #6761, p. 2)

Memorandum from Dr. Amanda Rodewald to Dr. David Allen, Comments to the chartered SAB

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NASA and University of California, Irvine, study, “Satellite Study Reveals Parched U.S. West Using up Underground Water”, press release, July 24, 2014

,Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

681 http://www.nasa.gov/press/2014/july/satellite

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U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of th e Scientific Evidence (2013), available at: http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/Watershed Connectivity Report?OpenDocument

. (Doc. #6761, p. 4)Clean Water Rule Response to Comments

– Topic 7: Features and Waters Not Jurisdictional

682 U.S. Environmental Protection Agency , What is a Watershed? (2012), available at: http://water.epa.gov/type/watersheds/whatis.cfm

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