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'Ambiguity... marginal benefit' - PPACG board to EPA on proposed water rules

       Editor's note: Is an intermittent stream a tributary? What's the actual definition of a flood plain? Concerned about local issues that could result from a (proposed) expansion of what's controlled under the federal Clean Water Act, the Pikes Peak Area Council of Governments (PPACG) board authorized the following letter to the Environmental Protection Agency (EPA), dated Sept. 5. The board consists of elected officials from governments in a three-county region, including El Paso. The author, Dennis Hisey, is an El Paso County commissioner and chair of the PPACG board. The letter was timed for the public comment period on what's known as the EPA's “Waters of the United States” proposal. That period ends Oct. 20. The EPA's “Waters” website is epa.gov/region6/6en/w/watersus.htm.
      
       [To] Environmental Protection Agency
       Washington, D.C.

       Subject: Comments regarding Waters of the US proposal

       The Pikes Peak Area Council of Governments (PPACG) is the Section 208 water quality planning agency for El Paso, Teller, and Park Counties, located in Colorado. We appreciate the
This part of Robinson Street near 27th becomes a waterway every time it rains hard. But would it be considered a "tributary" under the EPA's proposed "Waters of the United States" requirements? These are the kinds of questions the Pikes Peak Area Council of Governments (PPACG) board is asking in a letter to the EPA.
Westside Pioneer file photo
EPA's attempt to clarify the definition of the waters of the US. However, we believe that the language proposed in certain sections of the rule is ambiguous and will only add to current uncertainty. In addition, the proposal appears to significantly expand the scope of federal jurisdiction beyond that intended by Congress and authorized under Supreme Court interpretations of the Clean Water Act. Adoption of the proposal will cause delays in project review and implementation at a time when infrastructure demands associated with water and wastewater needs, drought response, and post fire remediation are high, but both federal and local resources are limited. Some of the concerns regarding this proposal are:
      
  • Ephemeral and intermittent streams, including normally dry arroyos and washes, which are extremely common in Colorado due to the arid conditions, would be considered tributary waters under the proposed guidance and therefore subject to federal regulations. This would increase and expand the permitting requirements under Sections 402 and 404 of the Act, and potentially trigger time consuming and expensive NEPA [National Environmental Policy Act] reviews in areas that have not currently or historically been of concern. Many such tributaries are not physically connected to waters of the US through other than extremely infrequent surface flow, and it should not be assumed that such ephemeral or intermittent streams/waterways are "per se" jurisdictional. This language needs to be modified.
          
  • Implementation of this proposed rule would show a marginal environmental benefit. The potential cost to comply with this proposed rule at a local, state, and federal level will probably far exceed the environmental benefit, especially in areas that are arid and semi-arid, such as Colorado. Water quality, aquatic habitat, and vegetation are much different in areas that have perennial versus intermittent flow. This rule should focus on areas where there is a known environmental or ecological benefit and a pilot study should be conducted in each unique ecological region so that the EPA and stakeholders can determine the rules appropriate for each area and potential impacts. It is essential that this proposed rule demonstrate how the downstream waters will be adversely impacted.
          
  • Local agencies can better determine priority needs. Each watershed has unique hydrological, geological, and climatological conditions which will make one­-size-fits-all federal guidance on determining what is considered a water of the US extremely difficult to fairly implement. Most regions in Colorado have a good working relationship with the Army Corps of Engineers and the environmental health department in trying to protect and improve water quality, so delegating more authority and flexibility to the state and/or local governments would enable local entities to protect their resources in a more economically efficient manner.
          
  • There is also confusion regarding what would and would not be considered a water of the US, as a consequence of the "significant nexus" test. This is due to the new proposed definitions of "neighboring," "floodplain" and "riparian area." It appears that in certain circumstances, a specific area may or may not be considered a water of the US, depending on whether an aggregate analysis of waters in the region or a discrete analysis of the particular water in question is conducted. This adds ambiguity and makes future local planning difficult, including the establishment of budgets and the prioritization of environmental mitigation activities.
          
  • Without modifications to the proposal, infrastructure projects will be delayed and increased in cost due to the need to meet additional permitting requirements. Both small and large infrastructure projects are already expensive and time consuming. If permits are not timely issued, it can cause an economic ripple effect through a community as a consequence of the project delays. The potential complexity in applying for a permit under the proposal, especially with reference to the "other waters" category, coupled with the ambiguity in what type of project will require a permit, will result in project delays and cost increases that local governments cannot afford. The financial analysis which accompanied the proposal needs to be re-examined and supplemented so as to provide a more accurate portrayal of on-the-ground cost impacts. State and local governments could assist with this effort.
          
  • Many local governments in the West move water through ditches in order to meet water supply needs. This is oftentimes accomplished in coordination or partnership with agricultural water suppliers. The narrow scope of the proposed ditch exemption will mean that most ditches will be considered jurisdictional, as they are not excavated wholly in uplands and drain areas other than uplands. Hence, this proposal will increase the burdens associated with both meeting future water supply challenges and maintaining and replacing existing ditch structures.
          
  • The proposed language is so broadly drafted that without modifications 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 construction and maintenance of stormwater control facilities, including "green infrastructure" projects. To unnecessarily erect additional barriers to the completion of such activities is unwarranted.
          
  • Adoption of these new rules requires an increase in funding and staff for both the federal agencies who implement these rules and their state counterparts. State health departments will face the burden of additional Section 401 certifications and, in certain situations, additional standard setting proceedings, TMDL allocations, and Section 402 permit actions. If such funding is not forthcoming, it will cause projects to be delayed even further. [Note: TMDL is an acronymn for Total Maximum Daily Load, a regulatory term in the US Clean Water Act describing a value of the maximum amount of a pollutant that a body of water can receive while still meeting water quality standards.]
          
  • A pilot projector study should be conducted to determine what the environmental benefit and cost would be from the implementation of these proposed rules.

           PPACG appreciates the EPA trying to clarify what would be considered waters of the US, but believes there is still a lot of uncertainty and ambiguity surrounding moving forward with the proposed guidance in its current form. There are many issues and concerns that need to be clarified.

           Sincerely,

           Dennis Hisey
           Chairman
           Board of Directors
           Pikes Peak Area Council of Governments

    (Posted 9/9/14; Politics: State/Region)

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