As you are likely aware, the comment period for responding to EPA and the Corps of Engineers proposed "waters of the US rule" is closing on October 20. ASCE has prepared an initial draft of comments and is seeking feedback from EWRI. I am the primary author for the comments and wanted to use this forum to solicit feedback on the core components of our organizational comments. Please find below a summary of our main concerns followed by several sections of substantive comments. Please note in the embedded comments areas where we are seeking specific examples for concerns raised by definitions in the proposed rule. I will take comments on this post through October 10
. you can either comment here or email me at [email protected]
. Please remember, ASCE represents over 145,000 members. We have tried to strike a balance addressing the needs of all of our members. If you care to submit comments on your own, you may do so at http://www.regulations.gov/#!submitComment;D=EPA-HQ-OW-2011-0880-0001
Summary of ASCE Comments on WOTUS Rule
While ASCE supports a rulemaking by the agencies, we cannot support the proposed rule in its current form. In our comments, we urge review on four major issues; 1) significantly clarify several proposed definitions critical to the rulemaking, 2) exclude or provide guidance on the effect of the proposed rule on municipal separate storm sewer systems, 3) reexamine the rule with a particular eye towards circumstances in the arid West, and 4) consider the impact of the proposed rule on green infrastructure development.
ASCE Comments on Definitions in the Proposed Rule
EPA and CofE propose definitions for a number of critical terms used in the proposed rule. We provide the following examples and comments of definitions that are too broad in scope, ambiguous or may require additional revisions.
Tributary: The proposed definition of tributary is too broadly defined. In the proposed rule a tributary is characterized by a bed, bank and ordinary high water mark which contributes flow directly or through other water bodies to a "water of the U.S." The proposed rule states that a tributary does not lose its status if there are man-made breaks (such as bridges, culverts, pipes, dams) so long as a bed and can be identified up and downstream of the break. Importantly, a tributary can be a natural, man-altered, or man-made and includes rivers, streams, lakes, impoundment, canals and ditches (unless excluded). Our members have expressed concern that as written the rule may significantly impact municipalities who manage local streets[WER1] . Taken to the extreme, the question has been posed: are rain gutters subject to jurisdiction? ASCE urges EPA and ACE to consider adding exemptions and clarifications to this definition.
Adjacent: The proposed rule replaces the existing definition "adjacent wetlands" with "adjacent waters". ASCE's primary concern with the proposed rule is that adjacent waters may be connected through "surface or shallow subsurface connections." ASCE represents members from across the country who expressed concern that "shallow subsurface connections" can have vastly different meanings in a state with karst topography, like Florida to a state with much less permeable subsurface hydrologic features.[WER2] We encourage EPA and ACE to consider clarifying the definition of "shallow subsurface connections".
Riparian Areas and Floodplains: Civil engineers are responsible for constructing many features found in riparian areas and floodplains. Many of those larger features, such as dams and levees understandably require a §404 permit. Civil engineers are also responsible for flood plain mapping, levee design, stream restoration and a multitude of other engineering activities found in floodplains. We received feedback from engineers who work in these sectors who questioned the reach of floodplains. The proposed rule defines floodplains as: "an area bordering inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions and is inundated during periods of moderate to high water flows." We received feedback indicating this definition could extend to far reaches in the Mississippi River Basin and concerns that the term "floodplain" is not tied to the generally understood Federal Emergency Management Agency (FEMA) program that oversees the National Flood Insurance Program (NFIP) in floodplain areas. The rule states that jurisdictional determinations over the extent of floodplains will decided by the "best professional judgment and experience" of agency staff[WER3] . Our members urge consistency and transparency in this regard.
Uplands: One of our members presented a situation where an uplands conveyance ditch was constructed - wholly uplands - to remove treated effluent from a wastewater treatment facility, pursuant to a NPDES permit. The effluent creates a perennial flow. Is this ditch excluded from jurisdiction under the wastewater treatment exemption found at (b)(1)?
Contribute Flow[WER5] :
Perennial Flow: Our members expressed concern that the definition of "perennial flow" may apply to ditches in the arid West. Specifically, there is concern of jurisdictional reach to ditches dug wholly uplands with perennial standing water (but not perennially flowing) due to groundwater intersection/seepage, but which only flow into a jurisdictional tributary during rain events. Put another way there is a question about the jurisdiction of standing water, not perennially flowing, but only flowing after a storm event.
Another member inquired about dry weather urban runoff, such as over sprinkling. Is this type of runoff considered perennial flow?
Ordinary High Water Mark: While the definition of OHWM is relativity established in the proposed rule for naturalized streams we believe the definition is less clear for OHWM's found on concrete conveyances that may be considered jurisdictional. As we understand, staining is the primarily indicator to determine the OHWM in concrete channels, however, our members provided examples of concrete conveyances that flow a few times a year, carrying only sheetflow, which do not leaving stain lines. We urge EPA and CofE to revise the definition of OHWM as it relates to concrete conveyances.
Clarify Potential Jurisdiction over Municipal Separate Storm Sewer Systems (MS4)[WER6]
Nearly a third of the ASCE members surveyed on the proposed rule expressed significant concern about the potential impacts of the rule on managing Municipal Separate Storm Sewer Systems (MS4's). 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 MS4's from jurisdiction under §(t) or provide additional guidance on their potential jurisdiction. Broadly read, the proposed rule MS4's 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 US, but also when a pollutant initially enters the stormwater conveyance system.
Potential Impacts of the Rule on Encouraging Green Infrastructure
Civil engineers build both traditional hard or "grey" infrastructure such as dams and levees, but also actively work to incorporate natural systems into designs. Often times, nature is the best engineer. For the reason, the Society supports the development of "green infrastructure". Many municipalities are now looking to manage stormwater with the use of bioswales, low impact development stormwater treatment systems, green alleys and streets and rain gardens. Green infrastructure uses vegetation, soils and natural processes to manage water and create healthier urban environments. Often these systems are often designed to hold water as it permeates into the soil. There are significant concerns that this holding function could trigger jurisdiction under the proposed rule. It's also unclear whether a §404 permit will be required for maintenance activities on green infrastructure projects.
ASCE Recommends Improvement to the Economic Analysis
Simply stated, the Economic Analysis provided by EPA and CofE does not sufficiently address the potential economic impacts on MS4's. In fact the Economic Analysis explicitly states that the agencies do not know what the economic impact is: "It is unclear specifically how a broader assertion of CWA jurisdiction under this proposed rule would affect MS4 permits."
Considering the proposed rule affects all sections of the Clean Water Act, and the potential impact on municipalities operating MS4's is significant, we urge EPA and CofE to revise the Economic Analysis and take a hard look at the costs on MS4 operators.
 See Definition of "Waters of the United States" Under the Clean Water Act; Proposed Rule, 79 Fed. Reg. 22, 201.
 See Definition of "Waters of the United States" Under the Clean Water Act; Proposed Rule, 79 Fed. Reg. 22, 199.
 Economic Analysis of the Proposed Revised Definition of Waters of the United States. U.S Environmental Protection Agency, March 2014, pg. 26.
[WER1]Would be nice to add a local example here.
[WER2]Would be nice to add a local example here.
[WER3]Any examples or prior inconsistency from Corps JD's would be helpful here.
[WER4]Do we need to comment on the term ditch or is it sufficiently covered below?
[WER6]Many groups are taking the approach that MS4's should be consider wastewater treatment systems and therefore excluded under (t)(1) of the rule. I don't think we should take that position. Curious of others thoughts?
Whitford Remer Aff.M.ASCE
Washington DC (202)709-7844(202)709-7844