04/16/2019
Comments on Docket ID No. EPA-HQ-OW-2018-0149
Revised Definition of “Waters of the United States”
Mark LaRue
Jurisdictional Waters Expert
Biotics Environmental Consulting LLC
30 years of CWA Section 404 Jurisdictional Experience including 20+ years at U.S. EPA Region 4, Water Protection Division
General Comments
At the heart of the proposed revisions to the definition of Waters of the U.S., is the overall theme and effort to prevent exertion of jurisdiction over water ways that are ephemeral in flow regime in the belief that the Congressional creation of the Clean Water Act (CWA) in 1973 and ensuing amendments, there was not intent to exert jurisdiction over ephemeral water ways and certain isolated waters. From 1973 to the present there has certainly been an expansion of jurisdiction “up slope” from Traditional Navigable Waters. The knowledge base and understanding of the importance of aquatic ecosystems has expanded astronomically since 1973 as well. I am certain that Congress in 1972, given the environmental knowledge we have today, would have crafted a completely different Clean Water Act (CWA). Indeed, maybe a CWA re-write is what is needed rather than just a new definition of Waters of the U.S.
That being said, the U.S. EPA should consider the vital ecological functions and values provided by streams that flow ephemerally to intermittently and include these waters as jurisdictional components of Waters of the United States. Almost 60 percent of stream miles in the continental U.S. only flow seasonally or after storms. The very foundation of our nation’s great rivers is a vast network of unknown, unnamed and underappreciated streams. These water sources, often referred to as headwater streams, are often unnamed and rarely appear on maps. While these small streams and their associated wetlands often appear insignificant, they are in fact very important, as they feed into and create larger waterways. Headwater streams and wetlands trap floodwaters, recharge groundwater supplies, remove pollution, provide fish and wildlife habitat, and sustain the health of downstream rivers, lakes and bays. Many streams that flow for only part of the year are the source of the nation’s fresh waters, particularly in the arid west where more than 95 percent of the streams are seasonal, and changes that harm these headwaters affect all streams, lakes and rivers downstream. Despite their seasonal or temporary appearance, headwater streams and wetlands are critical to the health of river systems, and are hydrologically, biologically, and chemically connected to downstream waters.
The U.S. EPA has recognized the values of ephemeral and intermittent streams in the following documents:
• U.S. EPA: The Ecological and Hydrological Significance of Ephemeral and Intermittent Streams in the Arid and Semi-arid American Southwest
o U.S. EPA: Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Final Report). This report represents the state-of-the-science on the connectivity and isolation of waters in the United States. It makes five major conclusions, summarized below, that are drawn from a broad range of peer reviewed scientific literature.
o The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
o The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These systems act as effective buffers to protect downstream waters from pollution and are essential components of river food webs.
o There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity. Evaluations of the connectivity and effects of individual wetlands or groups of wetlands are possible through case-by-case analysis.
o Variations in the degree of connectivity are determined by the physical, chemical and biological environment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
o The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.
There is a wide abundance of other research supporting the significant ecological values performed by ephemeral and intermittent streams and their vital positive contribution to downstream waters. The relinquishment of jurisdiction over ephemeral and intermittent streams and their abutting/adjacent wetlands is a severe threat to the overall health and integrity of our nation’s waters and poses a threat to human health and recreation.
The U.S. EPA should exert jurisdiction over all intermittent streams and their associated wetlands and over all ephemeral streams (and associated wetlands) that maintain an ordinary highwater mark and a defined bed and bank.
To assist with defining jurisdictional headwater streams, the U.S. EPA should refine and apply guidance developed by the EPA and State Agencies. In the southeast, the U.S. EPA and numerous states have adopted several methods for assessing the hydrologic permanence of headwater streams. These methods correlate the discriminant functions that separate ephemeral, intermittent, and perennial stream reaches and include:
• North Carolina Division of Water Quality, Methodology for Identification of Intermittent and Perennial Streams and Their Origins.
• U.S. EPA: Field Operations Manual for Assessing the Hydrologic Permanence and Ecological Condition of Headwater Streams.
• Ohio Environmental Protection Agency Headwater Habitat Evaluation Index (HHEI), and the North Carolina Department of Water Quality Stream Classification Method (NCSC) were strongly correlated with the discriminant function that separated
• U.S. EPA: Physical Stream Assessment: A Review of Selected Protocols for Use in the Clean Water Act Section 404 Program.
• U.S EPA: Streamflow Duration Assessment Method for the Pacific Northwest.
• State of Tennessee Stream Hydrologic Determination method.
• U.S. Army Corps of Engineers: A Review of Land and Stream Classifications in Support of Developing a National Ordinary High Water Mark (OHWM) Classification
The following comments are more specific to each section of the Proposed Definition of “Waters of the United States” as published in the Federal Register.
Introductory paragraph:
Comment: The achievement of “bright line” categorizations is simply not possible with natural ecosystems. Indeed, wetlands are identified as transitional zones between waters and uplands, and wetland boundaries can be difficult to determine in the field (and even more difficult from “desk top”), and stream segments also have no “bright line” when transitioning from ephemeral to intermittent, and perennial reaches. The EPA should avoid use of the “bright line” term and focus on the use of “clarity and predictability” when developing the new rule. Eliminating the case by case significant nexus test is a positive move that reduces work effort for regulators and consultants, reduces confusion, and proposing instead the establishment of clear categories of jurisdictional waters would better define Waters of the U.S.
I encourage the definition of “waters of the United States” that aligns with the intent of Congress to broadly interpret the term “navigable waters” beyond just commercially navigable-in-fact waters.
The EPA should abandon the use of the terms Relatively Permanent Water and Non-Relatively Permanent Waters and use the above, or other, classification methods to determine hydrologic permanence of streams in line with the more appropriate science terms of ephemeral, intermittent, and perennial.
A. Traditional Navigable Waters and Territorial Seas
Comment: I agree with the proposal to include both traditional navigable waters and the territorial seas as a single category of jurisdictional waters.
B. Interstate Waters
Comment: I agree with the proposal to eliminate interstate waters as a separate category of “waters of the United States” and include such waters as “navigable waters” resulting in a more concise Waters of U.S. Definition.
C. Impoundments
Comment: I agree with the EPA that no change in definition should be made to the definition of impoundments.
D. Tributaries
Comment: The proposed rule, defines “tributary” to mean a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year either directly or indirectly through other jurisdictional waters, such as other tributaries, impoundments, and adjacent wetlands or through water features identified in paragraph (b) of this proposal so long as those water features convey perennial or intermittent flow downstream. Tributaries as defined in this proposal do not include surface features that flow only in direct response to precipitation, such as ephemeral flows, dry washes, arroyos, and similar features. These features lack the required perennial or intermittent flow regimes to satisfy the tributary definition under this proposal and therefore would not be jurisdictional.
The proposal only includes intermittent and perennial streams and I strongly disagree with eliminating ephemeral waterways and their associated wetlands from jurisdiction as stated in my introductory paragraph. The proposed rule should include natural ephemeral channels with an Ordinary High Water Mark, defined bed and bank, and other features identified in the U.S. Army Corps of Engineers, Regulatory Guidance Letter 05-05 and other guidance identified in my opening paragraph. Unnatural ephemeral waters such as ditches, water flumes, and other artificial/man-made drain ways should be categorically excluded from being jurisdictional waters. Further, western “washes” and “arroyos” and the like, provide essential ecological benefits and are used for drinking water sources. The loss of jurisdiction over these water ways poses a serious threat to the environment and human health and the EPA should retain jurisdiction over these waters when they meet the criteria of RGL 05-05 and other (perhaps new) guidance that could be adopted by modifying existing methods and procedures.
I agree with the proposed EPA definitions and periods of flow for ephemeral, intermittent and perennial streams
I agree with the “Typical year” as defined in the proposed rule which means within the normal range of precipitation over a rolling thirty-year period for a particular geographic area.
I take issue with the proposal that “Perennial or intermittent flow would require some form of discrete and confined flow (as opposed to diffuse overland flow) forming geographic features such as rivers, streams, or similar naturally occurring surface water channels. Often times in the Mountains and Piedmont geographic province, streams with course down steep slopes and empty into broad flats and sheet flow through floodplains before water entering other jurisdictional waters. This connectivity through sheet flow is likely oi other similar geographic regions. In the least, these streams that sheet flow into 100-year floodplains should be considered jurisdictional.
Therefore, a perennial or intermittent stream that flows into a non-jurisdictional ephemeral feature should meet the definition of “tributary” if the perennial or intermittent flow reaches a traditional navigable water or territorial sea; the ephemeral feature should not sever jurisdiction.
I propose that ephemeral ditches and other non-natural drainages should be excluded from jurisdiction. I concur that the non-jurisdictional ditches would not sever jurisdiction under the proposed rule as long as the ditches convey perennial or intermittent flow to tributaries or other jurisdictional waters at the downstream end of the ditch.
All references to streams in this section should be modified to include ephemeral streams with an OHWM, and meeting other criteria in RG05-05, and other guidance.
I highly recommend and support the EPA proposal to work with States to develop consistent methods of wetland and stream identification methods, assessing climatic data for normal years, and compiling publicly accessible data bases of known jurisdictional waters.
In situations where there is less than intermittent flow in a channel (i.e. ephemeral), that flow regime should not break jurisdiction of upstream and downstream perennial or intermittent flows. There are many areas of karst and other topography that allow stream channels to course underground and then rise to the surface, reflecting the geology of the reach and the ability of groundwater to continue its influence on hydrologic permanence. Where such reductions in flow occur, that should not break jurisdiction between up and down stream reaches that otherwise exhibit surficial ephemeral, intermittent or perennial flows.
Natural and man-made breaks should not break the jurisdictional status of upstream waters.
I recommend staying with the current definition of intermittent flow occurring during “certain times of the year” and not adopting to “seasonal flow” or other narrow time frames. Defining intermittent flow too restrictively can lead to loss of jurisdiction over intermittent streams, and that is not the intent of former agency policy nor should it be policy in the future.
E. Ditches
I support the proposal to define ditches as simply artificial channels used to convey water. I also agree with the proposed definition of ditches to include as “waters of the United States”. I am confused and concerned that the proposal allows that ditches not covered in the proposed categories could still be regulated by States and Tribes and would be subject to CWA permitting if they meet the definition of “point source” in CWA section 502(14). The purpose of this entire proposal is to define jurisdictional waters and offering that “non jurisdictional” waters might otherwise become jurisdictional under separate aspects of the CWA is flawed. Clarity should be offered in the final rule such that all CWA components have consistent predictable jurisdiction.
F. Lakes and Ponds
Comments: Why aren’t impoundments, lakes and ponds included in the same category? These three water bodies should be in a single category with the same definitions and application in the rule. I continue to recommend that ephemeral streams meeting RGL 05-05 criteria should be included as jurisdictional as well as their associated wetlands, and any naturally formed or man-made open waters form from such ephemeral streams. In general, most scientists define ponds as less than 10-acres in size and less than 10-feet deep, lakes are defined as larger than 10-acres and more than 10 feet deep. But again, nature does not often follow regulatory definitions and ponds and lakes should be broadly defined.
I disagree with the agency proposal that “a mere hydrologic connection between a non-navigable, isolated, intrastate lake or pond and a jurisdictional water, may be insufficient to establish jurisdiction under the proposed rule and that a lake or pond that may be connected to a “water of the United States” by flooding, on average, once every 100 years would not be jurisdictional under this proposal. To be jurisdictional, a lake or pond that is otherwise physically separated from a “water of the United States” would need to be flooded by a jurisdictional water during a typical year; ecological connections between physically separated lakes and ponds and otherwise jurisdictional waters cannot be used to assert jurisdiction according to this proposal.”
Waters of any kind that are within the 100-year floodplain should be jurisdiction regardless of hydrologic regime or landscape position. These waters provide valuable flood storage benefits worth billions of dollars per year in flood damage cost reduction across the United States. The agencies should give careful consideration to all waters within the 100-year floodplain. Additionally, a physical connection within the 30-year average and/or 100 flood event should maintain jurisdictional status.
As stated elsewhere, I agree with the elimination of the significant nexus requirements for jurisdictional determinations.
I caution the use of USGS topographical maps and the appearance of broken or solid blue line streams for uses of jurisdictional. These maps are outdated and were never ground truthed. They are high inaccurate for daily use. The agencies should avoid the use of USGS Maps, NWI maps, and Soil Maps, and even aerial imagery as strong indicators of jurisdiction. The development of wide spread data bases in each state that are developed from more modern data and methods would be more useful and better indicators of potential jurisdiction.
G. Wetlands
This an extensive section and in general I recommend that all wetlands with a direct hydrologic surface connection (physical connection) to an ephemeral, intermittent, or perennial stream, either within a “typical year” within the normal range of precipitation over a rolling 30-year period, or with a connection to the 100-year floodplain, and wetlands that are also connected directly to a TNW, should be jurisdictional. The loss of jurisdictional streams and wetlands under the current proposal is unacceptable and will have dire consequences to the integrity of the physical, chemical, and biological aspects of waters that the CWA was implemented to protect.
The terms abutting and adjacent should be abandoned and wetlands with a physical connection to ephemeral, intermittent, and perennial waters either within the normal range of precipitation over a rolling 30-year period, or with a connection to the 100-year floodplain should be jurisdictional. Natural and man made barriers should not sever jurisdiction.
The use of a “measured distance” from a TNW, or other jurisdictional water, including ephemeral streams (that meet the criteria of RGL 05-05) should absolutely be avoided. Such distances are arbitrary and never take into consideration the functions and values of aquatic systems located in and outside the boundary.
Eliminating the significant nexus criteria and relying on a physical connection is the most definable and predictable way of measuring jurisdiction. I do propose that such physical connection should be considered within the rolling 30-year period, or with a connection to the 100-year floodplain.
I strongly disagree with the alternate approach, whereby wetlands that are separated from another jurisdictional water by upland or a d**e, barrier or other similar structure would not be jurisdictional even if they have a direct hydrologic surface connection in a typical year to an otherwise jurisdictional water. I believe seasonal overtopping, and other direct hydrologic surface connection through the upland or structure (e.g.,through a culvert) should be sufficient to exert jurisdiction.
The agencies solicit comment on whether this approach is more consistent with the considerations articulated above than the approach in the proposed definition.
H. Waters and Features That Are Not Waters of the United States
Comments: The proposed rule would exclude groundwater, including groundwater drained through subsurface drainage systems. I am concerned about stormwater and other surface waters that are collected and transported via undergone pipes. Specifically, these underground systems are included in the EPA MS4 program and should be considered as jurisdictional when they connect to other jurisdictional waters. This proposed rule would exclude ephemeral surface features and diffuse stormwater run-off such as directional sheet flow over upland. I believe “ephemeral surface features” may be defined using the OHWM RGL 05-05 and other methods and could be included as jurisdictional. Ephemeral surface features and diffuse storm water run- off not meeting the OHWM etc. criteria would be considered non-jurisdictional.
Please see my comments regarding Ditches, Section E, that are also applicable to this section.
I have serious concerns regarding the proposed rule to exclude water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel. Mining pits in particular can cause degradation of downstream waters and violate the significant degradation clauses of the CWA. These depressional waters should only be non-jurisdictional when there is absolutely no physical connection between these waters and other jurisdictional waters at any time regardless of a rolling 30-year or flood event or 100 year flood event.
I agree with the clarifications on PC farmlands and “recapture” provisions in the proposed rule.
The remainder of this section reflects little change from current policy, that I find to be reasonable and applicable, and no changes should be made.
Thank you for considering my comments.
Sincerely,
