The letter states:
On behalf of Mesa County, Colorado, thank you for the opportunity to provide recommendations on the proposed revision of the definition of Waters of the United States (“WOTUS”), also known as “navigable waters,” under the Clean Water Act (“CWA”). As the Board of County Commissioners for Mesa County (“Mesa County”) we respectfully submit these comments to the United States Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) (together, the “Agencies”) regarding the Proposed Revised Definition of “Waters of the United States,” Docket ID No. EPA-HQ-OW-2021-0602 (“proposed Rule”).
Exclusion for Stormwater Control Features
Mesa County owns and operates several stormwater control features and the proposed Rule will affect our ability to operate and properly maintain these structures in a cost-efficient manner. Both the 2015 Clean Water Rule (“CWR”) and the 2020 Navigable Waters Protection Rule (“NWPR”) incorporated language excluding these structures from consideration as Waters of the United States.
The 2015 CWR included the following provision:
(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section.
(vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
The 2020 NWPR included similar text:
(b) Non-jurisdictional waters. The following are not “waters of the United States”:
(10) Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater runoff;
This exclusion has been omitted from the proposed Rule language published on December 7, 2021. Mesa County believes the language in the rules promulgated by the previous two administrations was clear and relatively noncontroversial. Given the large number of entities, both public and private, currently responsible for the operation and maintenance of these essential structures, codifying an exemption into the Rule language will reduce confusion and provide clarity and certainty for regulators and the owners/operators of the stormwater control features. This explicit exclusion makes rule implementation clearer and more practical and enshrines a long-standing, but unstated practice into formal rule.
Without the exclusion, there will be a greater need for jurisdictional determinations, many of which could be avoided. These determinations will strain and unnecessarily consume staff resources of both the Agencies and our jurisdictions. Unnecessary determinations will complicate, slow down and make more expensive the routine operations and maintenance work of the owners/operators of the stormwater control features. As such, Mesa County requests that an explicit categorical exclusion for stormwater control features be incorporated in the proposed Rule.
Clearly Stated Definitions
The Agencies request direction on defining terms “perennial”, “intermittent” and “ephemeral.” As previously stated, Mesa County believes that implementation would be greatly benefited by establishing a concise, comprehensible definition of these terms. Additionally, providing detailed guidance documents with infographics of examples that have been problematic in the past would advance the goal of creating a Rule that is both predictable and consistent for the Agencies and external stakeholders.
U.S. Supreme Court Review of Sackett v. EPA
In an effort to reduce waste and eliminate a duplicative process, Mesa County strongly encourages the Agencies to postpone revoking or revising the current Rule until a decision by the U.S. Supreme Court has been reached in Sackett v. EPA. If the currently proposed Rule no longer fits the Supreme Court’s test for determining a WOTUS, the Agencies will have to begin this process again, leading to more uncertainty for stakeholders and state and local regulatory agencies.
Mesa County reserves the right to supplement this comment letter should the public comment period for Docket ID No. EPA-HQ-OW-2021-0602 be extended.
Thank you for your consideration of the above comments in regard to this very important matter.