6.1a ERMUSR 03-13-2017 - Laserfiche WebLink

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federal authority and would therefore trigger additional,costly best management practices are treated as a WOTUS,this will CWA permit requirements for utility projects.EPA and the result in a never-ending cycle of regulation. Corps released a final rule in May 2015.While it did address The final rule makes some changes to the ditch exclusion. some of the issues that the Association outlined in its comments However,the final rule's ditch exclusions are still narrow and on the proposed rule,the changes did not go far enough to allay raise concerns.A utility would be required to prove that its APPAs concerns. ditch qualifies for an exclusion,using historical information The Association remains very concerned with the expansive to demonstrate that the ditch did not excavate or relocate a interpretation of adjacent waters,ditches,and waste treatment tributary.Further,the ditch exclusion now relies on the trib- systems exclusions;ponds,lakes,oxbows,and other similar wa- utary definition,with the requirement that ditches are only ters will now be jurisdictional by virtue of being near WOTUS. excluded when they do not"excavate or relocate a tributary." Drainage ditches play a major role in utility operations,ensuring The tributary definition includes the ordinary high water mark that storm water is properly channeled away from facilities (OHWM)standards,which in and of itself,is problematic due and land where it would otherwise converge to create ponds, to it being ambiguous and inconsistently applied in the field. interfering with the intended use of the land and facilities.The The OHWM standard within the tributary definition includes Association argued in its comments that including ditches used a regressive looking review as to whether a feature used to be a to support electric utility operations as a WOTUS would be tributary,thus allowing the agencies to assert jurisdiction based overly expensive and onerous for its members.For example,the on past conditions. CWA storm water program requires the construction of ditches/ While the final rule differs markedly from the proposal,it storm water retention ponds to manage storm water in some does little to resolve the Association's concerns.Any increase in areas of the country.If ditches constructed due to storm water federal jurisdiction will have a substantial effect on members' Exclusions from WOTUS Waters that are excluded in the final rule are not waters of • Artificial reflecting pools or swimming pools created in the U.S.,even if they fall within categories(4) through(8)of dry land; the final rule.However,the preamble suggests the exclusion categories can serve as a hydrologic connection that the ■ Small ornamental waters created in dry land; agencies would consider under a case specific significant • Water filled depressions created in dry land incidental to nexus under the category(7)and(8)provisions of the rule. mining or construction activity,including pits excavated The final exclusions are: for obtaining fill,sand,or gravel that fill with water; • Waste treatment systems(WTS),including ponds or • Erosional features,including gullies,rills,and other lagoons designed to meet the requirements of the CWA; ephemeral features that do not meet the definition of • Prior converted cropland; tributary,non-wetlands swales,and lawfully constructed grassed waterways; • Certain ditches: (i)ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary; (ii) ■ Puddles; ditches with intermittent flow that are not a relocated • Groundwater,including groundwater drained through tributary,excavated in a tributary,or drain wetlands; (iii) subsurface drainage systems; ditches that do not flow,either directly or through anoth- er water,into an(1) through(3)water; ■ Stormwater control features constructed to convey,treat, or store stormwater that are created in dry land;and • Artificially irrigated areas that would revert to dry land if application of water ceases; • Wastewater recycling structures constructed in dryland; detention and retention basins built for wastewater recy- • Artificial,constructed lakes and ponds created in dry land cling;and water distributary structures built for wastewa- (e.g.,farm and stock watering ponds,irrigation ponds, ter recycling. settling basins,fields flooded for rice growing,log clean- ing ponds,or cooling ponds); 44 PubticPower.org 226