EPA'S LOCAL GOVERNMENT
ADVISORY COMMITTEE (LGAC)
REPORT ON THE PROPOSED 2018 WATERS OF
THE UNITED STATES RULE (WOTUS)

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"We have an
opportunity and a
responsibility to
change the way we
regulate water
resources across the
United States, Moving
away from the "one
size fits all" regulatory
approach and towards
a regional approach
that engages our tribai,
local and state
partners can yield
enhanced community-
based water resource
protection within the
context of a broader
national framework."
Susan Hann, Chair,
LGAC Water Workgroup
"Water is essential for our communities,
for the health of our people and our
economic growth. Managing water
resources is increasingly more
challenging. We cannot rely merely on
federal regulation to sustain our supply of
clean and safe water. All levels of
government must work together as
stewards of our natural resources. We
must, find new ways to collaborate and
cooperate. The LGAC puts forth a new
model of WOTUS rule-making. This model
is for shared governance for states, tribes
and local governments to work with the
EPA and the USAGE for improved
environmental management to protect our
water for generations to come."
Bob Dixson, Chairman
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Table of Contents
Executive Summary
I.	Background
II.	General Issues
A.	Defensible and Enforceable
B.	Categories of WOTUS and Exclusions
C.	Ditches
D.	Wetlands
E.	Prior Converted Wetlands
III.	implementation
A Role of States and Local Governments
B.	Mapping and Technology
C.	Implementing Guidance & Interagency Taskforce
D.	Enforcement
E.	Expanded Use of General Permits
F.	Communication and Outreach
G.	Training
H.	Tribal Perspectives-A Unique View of WOTUS and Water Quality Protection
Important to Tribal Rights and Resources
IV.	Charge Questions-Findings and Recommendations
A.	Charge Question #1
B.	Charge Question #2
C.	Charge Question #3
V.	Conclusion
Appendix

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EXECUTIVE SUMMARY
EPA's Local Government Advisory Committee (LGAC) is pleased to present the LGAC's
Report entitled, "Report on the Proposed 2018 Waters of the United States (WOTUS)
Rule" which offers our detailed findings and recommendations in response to our charge.
As public elected and appointed officials we are keenly aware of the importance of
protecting our nation's water resources and we appreciate the opportunity to provide
input from the State, Tribal and local government perspective.
On December 11, 2018, the U.S. Environmental Protection Agency (EPA) and the U.S. Army
Corps of Engineers (USACE), jointly proposed a new WOTUS rule. On February 12, 2019 the
LGAC was charged to give our advice and recommendations on the proposed rule. As LGAC
Members we represent diverse perspectives of state, tribal and local elected and appointed
colleagues across the country. Although there is strong consensus that the proposed
rulemaking is generally going in the right direction, we also concur that the rule must
consider regional differences. There is no "one size fits all" approach.
In comparison to the 2015 rule, the proposed rule provides greater clarity regarding
definitions and exclusions. Both have been sources of confusion and disagreement.
However, with the greater clarity came the realization that the rule must allow for regional
differences in order to properly protect water resources across the country without
unnecessary regulatory burdens.
One way to address regional differences is to amend the rule to give greater flexibility for
states, tribes and local governments to manage and protect Waters of the United States. A
potential approach would have federal jurisdiction remain over all interstate and navigable
waters, their tributaries and all adjacent wetlands, while the jurisdictional authority over
intermittent and ephemeral streams, ditches and isolated wetlands would be developed
through a shared governance model. The LGAC believes this is one of the most significant
themes to emerge from our outreach and collaboration.
Regional differences make it very challenging to craft a rule that can be universally applied
across the country. It was clear in our deliberations that a regulation seen as too little in
one part of the country could also be too much in another part of the country. This
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collaborative approach proposed by the LGAC is a way to respect regional differences while
providing a reasonable and appropriate nationwide regulatory framework.
The LGAC found differing views as to the protection of isolated wetlands. Some agree with
the narrow interpretation of WOTUS in the proposed rule, but others countered that all
wetlands in their area are important as economic drivers and valuable natural resources.
The LGAC heard several concerns that the loss of wetlands due to lack of federal regulation
could be catastrophic to a local fishing industry or coastal economy. Likewise, in some
regions ephemeral and intermittent streams and especially headwater streams provide a
key role in maintaining the source and quality of drinking water and livestock. Many LGAC
Members expressed concern that protection of our headwaters streams is important to
prevent flooding hazards and to prevent degradation of the watershed and rivers. These
issues all require an approach that considers regional differences and engages state, tribal
and local governments in the process.
The LGAC supports the exclusion of all ditches, except those ditches identified in paragraph
(a)(3), from WOTUS. As local governments we regularly design, construct and maintain
ditches for a variety of purposes including public safety. Therefore, it is imperative that
ditches do not fall under an extensive regulatory burden. In order to develop additional
guidance on ditches the LGAC recommends a collaborative approach through an
Interagency Task Force. The Interagency Task Force should include the EPA, the Corps and
state, local and tribal stakeholders. The goal would be to jointly develop greater clarity on
ditches that can be understood and applied at the local level. This would also provide a
forum for data sharing across jurisdictions.
Data sharing and mapping tools were also consistently noted through our outreach efforts.
Ideally, 'Waters of the United States' could be delineated utilizing Geographic Information
System (GIS) tools. Several local government representatives indicated the availability of
reliable data to share in a collaborative approach. This could be another important
assignment for the Interagency Task Force.
If the WOTUS rule is to be successfully implemented, the permitting process must be
evaluated and redesigned for shared governance. The LGAC heard significant concerns from
stakeholders about permitting delays and inconsistencies. The recent collaborative work
between the EPA and the Corps is a significant step forward. The recommended
Interagency Task Force could also play a leadership role in resolving these concerns.
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I. BACKGROUND
EPA's Local Government Advisory Committee is
chartered to give advice to the EPA Administrator
on environmental and public health issues which
impact state, tribal and local government and
communities. As State, Tribal and local officials,
clean and safe water are paramount to our
communities, businesses, health and prosperity.
In 1972, Congress enacted the Clean Water Act
(CWA) 1to prevent the pollution of waters of the
United States, including waters not deemed
traditionally "navigable" such as streams, lakes,
and wetlands. The CWA has been instrumental in
protecting our nation's water, human health and
the environment. In 2001 and 2006 Supreme
Court interpretations took up the CWA and
questioned what water bodies are protected
under the CWA. In response, the EPA published
the 2015 CWA WOTUS rule with the intent to
clarify what waters were covered under the
Clean Water Act.
Evening barge on the Mississippi River
near downtown Saint Paul, MN.
Photo Source: Daviri Brandt
The LGAC was asked and provided extensive input on the development of the 2015 WOTUS
rule. Since this time, numerous District Court cases and opinions have challenged the 2015
rule. In 2017, EPA announced a two-part process to replace the 2015 rule. The LGAC
published a Report in 2017 presenting to EPA what should be considered in a replacement
rule from the local government perspective. On December 11th, 2018 the EPA published a
proposed a replacement WOTUS rule. On February 12th, 2019 EPA issued a charge for the
1 [33 U.S.C. §§1251 to 1387]
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LGAC to review and give advice and recommendations from our 'on the ground'
perspective on the Administration's December 2018 proposed rule. Herein are our findings
and recommendations regarding the proposed 2018 Waters of the U.S. rule,
WOTUS 2018 Proposed Rule
On December 11, 2018 the U.S. Environmental Protection Agency (EPA) and the U.S. Army
Corps of Engineers (Army Corps) released a proposed "Waters of the U.S." (WOTUS)
definition to replace the 2015 WOTUS rule. In general, the proposed WOTUS December
2018 rule does the following:
p Creates six (6) categories of regulated waters including: traditional navigable waters;
tributaries; certain ditches; certain lakes and ponds; impoundments; and adjacent
wetlands.
>	Specifies 11 exclusions;
¦S Does not meet one of the six listed categories, it will not be
considered a WOTUS
¦S ditches, features that are only wet during rainfall events,
groundwater, stormwater control features, wastewater recycling
infrastructure built in uplands, converted cropland and waste
treatment systems.
>	Comports with case law on Waters of the U.S.
Farm, Lexington, Kentucky
Photo Source: Eric Vance
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II. GENERAL ISSUES
Herein summarized are the major themes and conclusions coming forward from the LGAC's
analysis and deliberations.
A.	Defensible and Enforceable- The Waters of the United States rule, also known as
WOTUS, seeks to clarify wetlands and small waterways which are protected under the
Clean Water Act of 1972. Various court decisions have increased the legal uncertainty
heightened by Supreme Court decisions and District court opinions of implementation in
only 37 states. The 2018 proposed Water rule provides clarity in definitions so that it can be
implemented uniformly and be enforced.
B.	Categories of Waters of the U.S. and Exclusions
The LGAC supports the categories in the Waters of the U.S. as articulated in the proposed
2018 rule. This includes six categories of waters proposed as WOTUS. There are eleven (11)
exclusions from the definition of "Waters of the United States." The LGAC concludes that
the proposed exclusions generally reflect current practice and provides greater clarity over
which waters are, and are not, regulated under the CWA. However, the LGAC believes that
"interstate waters" should be included as a long-standing category of WOTUS. Removing
'interstate waters' could pose significant uncertainty regarding state to state and tribal
waters where different definitions of 'waters' could apply. This could result in permitting
"A change in culture is
necessary in managing our
water resources. The LGAC has
proposed a new approach to
the WOTUS rule for us to work
together at all levels of
government to manage our
water resources more
efficiently for the benefit of the
environment and the
communities we serve."
Mayor Elizabeth Kautz
Burnsville, Minnesota
delays as well as litigation.
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C. Ditches
The proposed 2018 WOTUS rule excludes all ditches except those outlined in section in
paragraph (a)(1) of the proposed rule. The rule provides additional clarity and
predictability regarding the regulation of ditches such as artificial features and proposes to
exclude these from the definition of WOTUS. Ditches are an important part of what local
governments oversee and manage. These conduits transport water away from roads
(reducing flooding and road maintenance). They are also used in agriculture to provide
needed irrigation. Grass-lined ditches also filter and absorb pollutants that can also reduce
erosion. For local, state and tribal governments, the regulation of ditches has been the
most problematic aspect of the CWA rule. This has been particularly problematic for the,
municipalities and county government, and water supply and stormwater management
agencies, agricultural sector and farmers, ranchers, irrigation districts that manage and
maintain ditches.
For example, in the Eastern Shore of Maryland, there is a network of approximately 821
miles of ditches maintained by 101 public drainage associations (PDAs), in four Public
Watershed Associations (PWAs) in Caroline, Queen Anne's Somerset, Wicomico and
Worcester counties of Maryland.2 These ditches help drain 183,000 acres of land
composed of crop land, forest land, roadways, commercial areas and home sites, conveying
storm water runoff from rural towns on Maryland's Eastern Shore.
The LGAC recommends that the local role of regulating ditches is very important; therefore,
there should be further guidance given to clarify ditches in the 2018 WOTUS rule. The LGAC
is also recommending that an Interagency Taskforce be established which would engage
experts among the federal agencies, state, tribal and local experts to provide further clarity
on ditches and WOTUS. The Taskforce results can be incorporated in implementing
guidance.
2 https://mda.marvland.gov/resource conservation/Pages/pda pwa.aspx
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D.	Wetlands
The LGAC is supportive of the definition of wetlands in
the proposed 2018 rule. The LGAC believes that the
three parameters of hydric soils, hydrophytic
vegetation and hydrology should be utilized in the
definition. Isolated wetlands are an issue the LGAC
believes should be taken on a case by case basis. The
proposed changes could remove federal protections
from 51% of wetlands nationwide as well as 18% of
streams. Wetlands provide municipalities with green
infrastructure that collect storm water runoff and
mitigates flood damage of property and loss of life.
Wetlands also translate profitability for communities
in supporting the fishing industry. Coastal cities and
many tribal nations generate more than $208 billion
dollars in sales annually for the fishing industry and
supports 1.6 million jobs. 3The LGAC concludes that a
case by case determination of isolated wetlands over
an acre could be an important consideration to be
incorporated within WOTUS. The LGAC also concludes
that this could also should be a topic for further
interagency taskforce investigation to resolve which
wetlands are important for federal protection.
E.	Prior Converted Wetlands
The "prior converted cropland" exclusion is intended
to allow farmers to continue planting crops or plowing
in historical wetlands without needing Clean Water
Act permits. Wetlands first farmed prior to 1985 that
are still used for agricultural purposes haven't been
regulated since 1993. The 2018 WOTUS proposal
would maintain exclusions for prior converted
cropland as long as it has been used "for or in support
"The Waters of the
U.S. Rule is
challenging. As Vice-
Chair of the LGAC, I
appreciate the
opportunity to
provide our unique
perspectives on the
proposed rule and its
implementation.
Providing protections
to our water
resources are
important and
ensuring that local
input is considered
is imperative as each
area has unique
features. Striking
that balance ensures
success." Jeff Witte,
Secretary, Department
of Agriculture, New
Mexico
3 https://www.fisheries.noaa.gov/coastal-wetlands-too-valuable-lose#benefits-of-coastal-wetlands

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of agricultural purposes at least once in the immediately preceding five years." If not, these
areas would be considered "abandoned," and lose its exclusion. At that point, the Army
Corps would have to re-evaluate whether it met the federal definition of a wetland or had
become permanently converted to land. The LGAC is generally supportive of the
agricultural provisions.
Stanley, Idaho	Photo Source: Eric Vance
III. Implementation
A. Role of States and Locals-No One Size Fits All
States and Tribes should play a significant role in in determining WOTUS and be a
cooperative partner is its implementation. Transferring full responsibility of the CWA to
States and Tribes to fill in the gaps may constitute an unfunded mandate. Some States and
Tribes currently have legislative authority to regulate "waters of the state," many do not.
Currently less than one-half of the states have their own permitting programs for
freshwater wetlands. In 20 states, §401 certification provides the primary or the sole
mechanism by which states regulate activities. States and Tribes should also have a role in
making jurisdictional calls and be partners in implementation. States and Tribes should be
given primacy in decision-making unless it involves interstate or intertribal boundaries then
the federal primacy should apply. Local governments also have a significant role in
providing informational resources on the history of land use and other local databases.
Local governments also have governance of local zoning ordinances which can be an
important role in protecting waters and wetlands. The LGAC concludes that the States and
Tribes should have an increased role in implementation. This role should be codified in the
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rule and in implementing guidance. The LGAC suggests an approach that EPA should
request States and Tribes to develop criteria for jurisdiction state by state and tribe by
tribe.
"At the end of the day, we
all know that, the purpose
of the Waters of the United
States and the Clean
Water Act is to protect our
water and our natural
environment for
generations to come".
Commissioner Victoria
Reinhardt, Ramsey County,
Minnesota
B. Mapping and Technology
Mapping and technological tools can greatly assist
in CWA and WOTUS implementation. The LGAC
expresses strong consensus that mapping tools
and technology should be developed and its use
enhanced in implementation of WOTUS. The goal
should be to reduce the burden of permitting so
that jurisdictional waters can be determined
without the expense of thousands of dollars in
engineering and legal expenses. These technology
aides wili provide greater assistance to local
governments. Information about streams and
other water features can be drawn from the USGS
National Hydrography Dataset (NHDPIus). The EPA
has been working with USGS for over 30 years in
the development of this data for mapping
purposes. 4 Mapping may not suffice entirely for
jurisdictional determinations, but it does
correspond well with waters that are categorically
WOTUS under the proposed rule. Landsat imagery
and maps at the local level can also readily be
used in assisting in implementation. The LGAC
concludes that mapping efforts are critical for local
governments and rural and small communities
that lack resources.
4, EPA uses NHDPIus in their implementation of the CWA. (See for example EPA's "My Waters"
mapper at http;//www.epa.gov/waters/mvwatersmapper/.)
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C. Implementing Guidance and Interagency Taskforce
The LGAC believes that implementing guidance will be helpful
on many WOTUS issues such as ditches, intermittent streams,
wetlands, prior converted wetlands and mapping efforts. The
use of an Interagency Taskforce made up of federal, state,
tribal and local government experts will assist with the
WOTUS implementation and in giving further guidance on
these aspects of the rule. Furthermore, the LGAC
recommends that the development of implementing
guidance should be a transparent process and available for
public review and comment.
"I congratulate the EPA and the Corps
on the proposed rule to replace the
2015 rule defining 'Waters of the
United States'. It reflects a
considerable amount of thoughtful
consideration in identifying the
problems in the 2015 rule, and
addressing solutions that those of us
in Jackson County, Mississippi can
appreciate. As a member of the LGAC
and Vice-Chair of SCAS, I value the
opportunity to provide meaningful
input on the proposed rule."
Brian Fulton, County Administrator,
Jackson County, Mississippi
D. Enforcement
LGAC Members are dedicated to protecting water resources.
We are also concerned about clean water enforcement given
the past history of confusion with WOTUS and new proposed
changes with the final WOTUS rule. The LGAC urges EPA to
consider new ways of thinking to address CWA
implementation and water quality issues.
The LGAC encourages EPA to establish at a minimum a grace
period to approach CWA enforcement. This will give
opportunity for the regulated public to become educated on
the new provisions of the WOTUS rule. This will also give
agencies the opportunity for training and education of new
rule requirements, and at the same time prevent a backlash
of the regulated public on significant issues. The LGAC also at
the same time urges that EPA consider a new paradigm in
enforcement incorporating the concepts of integrated
planning including all aspects of the CWA and
the Safe Drinking Water Act.
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E. Expanded Use of General Permits
On January 6, 2017, the U.S. Army Corps of Engineers (Corps) issued its revised 2017
Nationwide Permits (NWPs) for work in streams and wetlands under Section 404 of the
federal Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899. 5
NWPs are designed to regulate certain activities in jurisdictional waters and wetlands that
have minimal adverse environmental impacts while allowing the activities to proceed with
minimal delay and paperwork. The Corps reissued fifty-two existing NWPs and added two
new NWPs: NWP 53, authorizing removal of low head dams, and NWP 54, authorizing
construction and maintenance of Living Shoreline in coastal waters. Each Corps District may
also address regional issues of concern. General and regional permits could be expanded to
take into consideration regional differences in WOTUS implementation.
"I am pleased with the work of the LGAC in
the development of the proposed and
revised WOTUS Rule. It incorporates
practicality and wise stewardship of our
natural resources. I hope that the final
rule will be a sensible framework to guide
all interested parties found under its
governance." Jai Templetori, West Tennessee
River Basin Advisory Board and Former Tennessee
Commissioner of Agriculture
F. Communication & Outreach
Communication and transfer of information is crucial at all levels of government to successfully
implement WOTUS. It will be crucial for EPA to work with states, tribes and local governments to
assist with communication and outreach on WOTUS. EPA has toois and resources that states,
tribes, and locals could utilize to enhance communication on WOTUS. Many of these tools are not
known and readily available. EPA has begun enhanced communication on WOTUS with regional
listening sessions. This approach should be continued and tailored to address states, tribes,
localities and small communities. EPA should further develop comprehensive communication and
information sharing with state, tribal and local governments.
582 Fed. Reg. 1860
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"The LGAC and Small Community Advisory
Subcommittee (SCAS) have worked for five (5)
years to gather views from across the nation on
WOTUS. This Report represents a gathering of
consensus on what is important to consider in
the Rule. It is particularly important for small
and rural communities who don't often have a
voice, but who are most often the most affected
by decisions on water resources."
Dr. Robert Cope, DVM
Chair, Small Community Advisory
Subcommittee (SCAS)
EPA through the Regional offices should continue education and step up training programs
for states and tribes to articulate the new WOTUS changes so that a uniform standard of
application can be built across the nation. This training should also include technical and
communication training so that those in the fieid will have access to available tools and
technology.
"We should be gravely concerned about the
minimization of the federal role in the Clean Water
Act. Any changes at the federal level must be
accompanied by the commitment and action to
enhance protection by state, tribal and local
officials. This requires frank discussion given the
financial challenges faced by local communities,
States and Tribes" Mayor Karen Freeman-Wilson
Gary, Indiana
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H. Tribal Perspective-A Unique View of WOTUS and Water Quality Protection Important
to Tribal Rights and Resources
EPA held five national meetings; five regional tribal meetings; three tribe-specific leader-to-
leader consultations; and seven tribe-specific staff-level teleconferences on WOTUS. As
sovereign nations, Tribes have a unique government-to-government relationship with the
U.S. Federal authority over waters. This authority is paramount to Tribes for protection of
their water resources and the quality of waters that are essential to tribal treaty-protected
resources, commercial ventures, culture, and the health of tribal members. This trust
relationship is codified in treaties which certain Tribes have negotiated with the United
States, which often included reservations of fishing and water rights, and WOTUS rule
revisions could impact these treaty rights and trust responsibilities.
"From the snow
cap mountains to
the ocean, water
is- and always-
will play a crucial
role in tribal
culture and life.
Clean water
sustains our food
sources, especially
salmon and
shellfish."
Chairman Shawn
Yanity, Stillaguamish
Tribe
For example, the Confederated Tribes and Bands of the Yakama Nation, the Nez Perce Tribe,
the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated
Tribes of the Umatilla Indian Reservation and the 20 treaty tribes in Western Washington
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have sovereign rights for fishing in their ancestral homelands.6 7 This right has been upheld
and affirmed in several U.S. Supreme Court decisions. This territory is expansive in the
states of Washington, Oregon, and Idaho. Tribes have expressed concern that limiting
federal oversight could not only affect the Columbia River Basin but all water resources in
Indian Country.
Significant progress has been made in reducing the discharge of pollutants to our nation's
waters. However, more waters are listed as impaired and reduction of CWA jurisdiction
could further jeopardize water quality of floodplains, tributaries, headwaters, and wetlands
(all critical to the quality of water that tribal members depend upon). Additionally, current
federal efforts to reduce water quality protections through erosion of current standards
and adopting less protective standards increases threats to tribal communities and
resources. If water quality has improved over time, then the U.S. could consider turning
over jurisdiction of waters. However, Tribes rely on their federal trustees, in this case, the
EPA and the U.S. Army Corps, to implement and enforce the CWA to prevent continued
impairment of their drinking water, fisheries, and endangered species recovery efforts.
Those efforts include recovery of Southern Resident Killer Whales (SRKW) that are
dependent on clean water, and functioning floodplains and wetlands.
"The LGAC did an extensive review of
WOTUS to assure we safeguard all
bodies of water-taking into
consideration local input into what
locals consider important in protecting a
body of water-such as livelihoods,
economy, spiritual, cultural and
international significance."
Dr. Hector Gonzalez, M D.
6	l Treaty with the Yakama Tribe, June 9, 1855, 12 Stat. 951; Treaty with the Tribes of Middle Oregon, June 25, 1855, 12 Stat.
963 Treaty with the Umatilla Tribe. June 9, 1855, 12 Stat. 945; Treaty with the Nez Perce Tribe, June 11, 1855, 12 Stat. 957
7	The NWIFC member tribes are the Lumrni, Nooksack, Swinomish, Upper Skagit, Sauk-Suiattle, Stillaguamish Tulalip, Muckleshoot,
Puyallup, Nisqually, Squaxin Island, Skokomish, Suquamish, Port Gamble S'Klallam, Jamestown S'Klallam, Lower Elwha Klallam,
Makah, Quileute, Quinault, and Hoh, which signed the Treaty of Point Elliot, 12 Stat 927 (1859); Treaty of Medicine Creek, 10 Stat.
1132, (1854); Treaty of Point No Point, 12 Stat. 933 (1859); Treaty of Olympia, 12 Stat. 971 (1855); and Treaty of Neah Bay,
12 Stat. 939 (1855).
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"Our goal is to help the EPA be a
better partner with State
administrators and policy-makers
to better achieve our shared
objectives: protecting the waters of
the U.S. and protecting the
economic interests of Americans."
Tom Sloan, (Former) State
Representative, Kansas
IV. LGAC Charge Questions-Findings and Recommendations
EPA issued the following WOTUS charge questions for the LGAC to give input. Herein are
the findings and recommendations to the charge.
A. Charge Question 1: Are there issues the agencies should consider relative to
implementation of WOTUS for state, local and tribal government?
Findings and Recommendations
~~~ A clear and precise WOTUS rule is the single most important factor for CWA
implementation. As co-regulators at the state, tribal and local levels of government, rule
language should be clear and defensible. This is critical for implementation and
enforcement.
~~~ The LGAC commends the EPA and the Corps on their collaborative work together with
states and tribes to develop the proposed 2018 WOTUS rule. This continued collaboration
will be critical in developing implementing guidance and in providing tools for state, tribal
and local implementation.
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~~~ In 2014, the LGAC undertook a nationwide inquiry and investigation to give EPA
feedback on the 2015 WOTUS proposed rule. From the 2014 LGAC hearings we
heard extensively in over 60 hours of testimony from our state, tribal and local
colleagues across that the 2015 rule had serious flaws particularly in regard to
definitions and a lack of clarity. The LGAC also heard testimony of inefficiencies in
the CWA permitting system. Delays and uncertainty in permitting are costly at the
local level. Permitting reform for CWA Section 404 could enhance the CWA
implementation of the Waters of the U.S. rule so that it is carried out legally and
expeditiously.
~~~ The LGAC believes that the proposed rule has clear definitions which is of utmost
importance to local governments.
~~~ As less waters are considered WOTUS, that means they become "Waters of the
State" or "Waters of the Tribe". This means the state or tribe would be responsible
for oversight. Some states and tribes have strong laws for this. Some states have
budgets that cover policy mandates while others do not. In some cases, states are
delegating responsibilities to local governments which can be an unfunded
mandate. For example, in North Carolina and Virginia, these states have delegated
storm water responsibilities to local governments. This is very costly, and many
state, tribal and local government officials consider it unsustainable.
~~~ Developing and pushing out tools to aid in WOTUS determinations is critical for WOTUS
implementation. Tools can aid and enhance WOTUS jurisdictional calls such as mapping
efforts and technology.
~~~ State, tribal and local governments provide the best resources for land use history,
photographs, local experts, and data collection on flow regimes. Local expertise can
provide critical input in the process of jurisdictional determinations. Other resources such
as StreamStats by the U.S. Geological Survey and other tools available through the Natural
Resources Conservation Service (NRCS) for hydrologic tools and soil maps and
identification of field indicators, such as vegetation and macroinvertebrates 8 could be
helpful. These data tools could be regionalized (for example, the Streamflow Duration
Assessment Method such as developed for the Pacific Northwest and could be replicated in
8 https://streamstats.usgs.gov/ss/
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other regions9. Specific climatic conditions and precipitation data are important elements
to consider. FEMA maps also could be helpful on a watershed-scale basis for meeting the
tributary definition. Another helpful data base is WETS tables (or similar tools) by the NRCS
National Water and Climate Center10 .
~~~ Clarifying exemptions of WOTUS is important to implementation. Ditches and maintenance
of them are inherent in the operations and activities of local government either in
maintaining roads, flood protection, agricultural operations and mosquito abatement to
name a few. Ditches are proposed to be excluded from the definition of WOTUS. Ditches,
by definition, are limited to conditions in paragraph (a)(1). This would include an exclusion
for "ditches which are currently used, or were used in the past, or may be susceptible to
use in interstate or foreign commerce, as well as ditches which are subject to the ebb and
flow of the tide. It may include waters such as navigable canals and tidal drainage ditches."
A ditch would also be considered a "water of the United States" if it is constructed in a
tributary as defined in paragraph (c)(ll) and also satisfies the conditions of the tributary
definition. There is more work that needs to be done to clarify the ditch exclusion.
~~~ Technical tools that are easily accessible and easy to use can help in assisting to make
jurisdictional determinations for ditches which is important for state, tribal and local
government.
~~~ Implementing guidance is critical for efficient and consistent implementation across
the country. Implementing guidance should be regionalized to take into account
regional and local differences. For example, it is estimated that in one county in
Mississippi (Jackson County) about 50 % or the waters would be considered
WOTUS. Regional approaches would be better to look at this issue and figure out
9 http://www.epa.gov/measurements/streamflow-duration-assessment-method-pacific-northwest, which
could be expanded to other regions).
10 (http://wvwv.wcc.nrcs.usda.gov/climate/wetlands.htmh
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ways to use general permits. Without regional approaches, communities like
Jackson County, Mississippi could lose economic opportunities.
~~~ Technical guidelines, tools and resources will be important for local, state and tribal
government. Local governments can provide information on land use and can be a good
resource on whether a ditch was constructed in upland or not. If the evidence suggests
that a ditch may have been constructed in a natural waterway, the agencies would likely
need to review the available evidence to determine whether that natural
waterway would qualify as a tributary under this proposed rule. In making this
determination of ditches, field data and current land use information will be important
tools and resources as well as local expertise in the decision-making process.
~~~ The LGAC believes that general permits, under Section 404(e) of the Clean Water Act,
offers potential to reduce the regulatory burden. If expanded, this could be used for a
wide variety of smaller projects that do not pose significant impacts. General permits
could particularly be helpful with stream restoration, stormwater maintenance and stream
activities that abate public safety hazards.
Recommendations
>	The LGAC commends the collaborative approach that the EPA and the Corps are using in
approaching development of the proposed 2018 WOTUS rule. The LGAC recommends that
the Natural Resource Conservation Service (NRCS) also be included in this collaboration.
>	The LGAC recommends that the EPA and the Corps work together to provide states and
tribes training on the implementation of WOTUS 2018. In addition to one-on- one training
sessions, technical tools should be made available to assist with implementation.
>	The LGAC recommends that the EPA, Corps and NRCS develop implementation guidance
on the 2018 rule. States and Tribes should also be included on working groups to develop
implementation guidance on the final WOTUS 2018 rule.
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>	The LGAC recommends that the EPA and the Corps consult with local, state and tribal
officials in jurisdictional decisions on issues of importance to local government such as the
ditch exclusion. The EPA and the Corps should work in tandem in making
jurisdictional determinations on any necessary permits needed for ditches either for
Section 404 permits or Section 402 permits.
>	The EPA and the Corps should authorize states and tribes to assist in identifying
wetlands, ephemeral and intermittent streams, ditches, etc. that are of "significant
nexus". This criteria developed by states and tribes should be included in
implementing guidance for WOTUS.
>	The LGAC recommends that state and tribal agencies should be designated with the
primacy of enforcement of CWA permits over local governments and private citizens.
>	In regard to determining intermittent and perennial flow, EPA and the Corps should
establish an Interagency Taskforce to develop criteria for flow- based matrix of questions
to determine 'permanent' and 'continuous' indicators of flow. The results should be
published in the Federal Register, and the public given the opportunity to give comment.
>	An application for Smart phone or hand-held computer should be developed to give a
quick jurisdictional determination and the output sent to all interested parties. This
information could be accessible by all parties in real time.
>	The LGAC recommends the expanded use of State General permits to reduce the
regulatory burden and address smaller projects with minimal impacts. It could also be
used to address regional and state-specific activities and special water bodies.
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B. Charge Question 2: From a local government perspective, are there
particular features or implications of any proposed policy approaches that
the agencies should be mindful of in developing the step 2 final rule?
Definitions
Waters of the U.S. Definition
Findings and Recommendations
~~~ The LGAC is generally supportive of the 2018 proposed rule definition and think it is
an improvement. "Waters of the United States" is to encompass 'traditional
navigable waters'. This would, include the territorial seas; tributaries that
contribute perennial or intermittent flow to such waters; certain ditches; certain
lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands
adjacent to other jurisdictional waters. However, there are wetlands, ephemeral,
and intermittent streams that have a "significant nexus" that should be defined by
States and Tribes to be included in WOTUS. Therefore, States and Tribes should
develop criteria for these areas which should be included in implementing
guidance.
~~~ The proposed 2018 WOTUS departs from other approaches in the 2015 rule to
make a distinction in federal jurisdiction and what is considered state jurisdiction of
Waters.
~~~ The LGAC generally finds that the definitions in the 2018 proposed rule are much
clearer and reduces uncertainty over the 2015 rule. This clarity is something that
local governments and the public have called for.
~~~ The LGAC supports the agencies' approach using case law, the plurality decision and
protection of our nation's source water in drafting a final 2018 rule.
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Recommendations
>	The LGAC recommends that the EPA adopt the definition of 'Waters of the
United States" as proposed in the 2018 final rule. However, there are
wetlands, ephemeral, and intermittent streams that have a "significant
nexus" that should be defined by states and tribes to be included in WOTUS.
Therefore, states and tribes should develop criteria for these areas which
should be included in implementing guidance.
> The LGAC recommends that the EPA proceed to encompass 'traditional
navigable waters' in the final 2018 rule.
r* The LGAC recommends that the EPA include source water as a separate
category of 'Waters of the U.S.' Source water may in some cases be
considered 'traditional navigable waters, and some may not. Therefore, this
category of 'waters' is important to include.
r* The LGAC recommends establishment of clear categories of jurisdictional
waters (articulated in the Riverside Bayview, SWANCC, and Rapanos
decisions) and away from the case- by- case of 'significant nexus' test. The
LGAC notes that case-by-case determinations can be significantly costly and
require complex engineering and legal assistance. These bright lines of
categories can potentially reduce the cost-burden to permittees. However,
there are some cases where case-by-case determinations will be necessary.
>	EPA and the Corps should apply simple approaches that yield jurisdictional
determinations for WOTUS with simple criteria that give a 'yes', 'no' or 'maybe'
answer.
>	The LGAC recommends that the EPA move forward with the proposed rule with the
approach to articulate clear categories of jurisdictional waters.
>	The LGAC recommends that clear examples of jurisdictional waters be
provided including photographs to supplement the information.
r* The LGAC recognizes that discrepancies will occur when making
jurisdictional determinations. The LGAC recommends that 'case-by-case'
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determinations may be necessary and may be requested. The LGAC
supports a provision in the proposed rule for a permittee to request a
case-by-case determination (which could be rendered to be more
accurate).
Interstate Waters
Findings and Recommendations
~~~ Removal of interstate waters as a category of jurisdiction departs from a long-standing
history in the CWA. Removing interstate waters could pose significant uncertainty regarding
state to state or state to tribal water quality standards, and it could result in permitting
delays. The LGAC believes that further work needs to be done to include further input from
states and tribes on this issue.
~~~ The 2018 proposed rule approaches "interstate waters" as other jurisdictional
waters and not as a separate category. It would therefore fall within the traditional
category of jurisdictional or one of the other proposed categories, such as
tributaries or lakes and ponds.
Recommendations
>	The LGAC recommends that the EPA seek further input from states and tribes
specifically whether 'interstate waters' should be a separate category of
jurisdiction.
>	The LGAC also recommends that the agencies develop clarifying guidance to
apply to "interstate waters" recognizing the rights and responsibilities of the
States and Tribes.
>	The LGAC recommends that "interstate waters" be added back as a category of
WOTUS.
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Tributaries
Findings and Recommendations
~~~ The LGAC generally supports the definition of 'tributaries' as it provides clear and
plain English examples and exclusions. It is also clear that a tributary does not lose
its status if it flows through a culvert, dam, or other similar artificial break or
through a debris pile, boulder field, or similar natural break so long as the artificial
or natural break conveys perennial or intermittent flow to a tributary or other
jurisdictional water at the downstream end of the break.
~~~ A tributary in the proposed rule is defined as "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 tributaries, jurisdictional ditches, jurisdictional lakes and
ponds, jurisdictional 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."
~~~ The proposed rule eliminates case-specific "significant nexus" analysis by providing
a clear definition of "tributary" which the LGAC notes may enhance
implementation.
~~~ Excluded waters and features would be those that do not have perennial or
intermittent flow (e.g., ephemeral features). Tributaries as defined in this
proposed rule do not include surface features that flow only in direct response to
precipitation, such as ephemeral flows, dry washes, arroyos, and similar features.
~~~ The proposed rule defines "perennial" to mean "surface water flowing continuously
year-round during a typical year." The proposed definition of "intermittent" is
"surface water flowing continuously during certain times of a typical year, not
merely in direct response to precipitation."
~~~ The term "ephemeral" is defined as "surface water flowing or pooling only in direct
response to precipitation, such as rain or snow fall."
~~~ The proposed rule states that a tributary "must contribute perennial or intermittent
flow to a traditional navigable water or territorial sea in a typical year."
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Ditches are generally proposed not to be "waters of the United States" unless they
meet certain criteria, such as functioning as traditional navigable waters, if they are
constructed in a tributary and also satisfy the conditions of the proposed "tributary"
definition, or if they are constructed in an adjacent wetland and also satisfy the
conditions of the proposed "tributary" definition.
The 2018 proposed rule does distinguish between "intermittent" and "ephemeral"
flows which attempts to strike a balance in case law, available science, and
stakeholder feedback. Ephemeral features, such as dry washes and arroyos, that
lack the required perennial or intermittent flow are excluded from the definition.
However, an ephemeral feature may constitute a point source that discharges
pollutants to a "water of the United States." (Rapanos, 547 U.S. at 743-44 (Scalia, J.,
plurality). States and Tribes may likely need to address ephemeral features as
"waters of the State" or "waters of the Tribe" under their appropriate laws as
appropriate.
The LGAC is of the opinion after hearing from our Committee Members and
colleagues across the country that there is 'no size fits all' determinant of
'intermittent" and 'ephemeral' flow. The LGAC believes that States and Tribes are in
a better circumstance with local information to develop state and tribal criteria for
jurisdictional determinations. The LGAC recognizes that the EPA cannot necessarily
require States and Tribes to provide this information. But incentives could be
offered to provide the EPA with this criteria when applying the WOTUS rule to their
respective states and tribes.
Recommendations
> The LGAC recommends that the EPA definition proposed for tributaries
provides clarity and should be adopted in the final rule.
r* The LGAC further recommends clarifying examples be developed in guidance
with photographs provided.
r* The LGAC also recommends that the EPA work with States and Tribes to
identify and map jurisdictional waters and provide the science to support
state and tribal inclusion of state and tribal waters.
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> The LGAC recommends that States and Tribes develop criteria for these terms as a
potential Approach to Wetlands with a "Continuous Surface Connection" and
"Relatively Permanent" Waters. Examples of such criteria:
4- Streams with seasonal flows or streams with man-made flows from other water
bodies should not be defined as 'relatively permanent' or 'intermittent'.
Metrics and thresholds should be established when a stream is considered
"relatively permanent." Such metrics will vary geographically, and the
thresholds will be subjective, and made on a case-by-case basis.
>	The proposed rule does not specify duration or amount of surface flow that would
categorize water as jurisdictional in "intermittent flow" under the CWA. Instead, the
agencies recognize that what constitutes intermittent flow can vary widely across
the country based on a number of different variables. Local governments will have
land-based experience and knowledge of local conditions of what might constitute
"intermittent flow" within their region and should be consulted throughout
the implementation of the rule.
>	States and Tribes should develop criteria and measurement techniques and submit to
the EPA for review and approval for determination of 'intermittent' flow. EPA should
have 90 days from receipt of completed state or tribal plan to review, suggest revisions,
and approve or deny the submitted plan. If the review is not completed within 90 days,
subject to extension if the EPA and state/tribe agree, the submitted plan shall be
deemed accepted.
>	States and Tribes should also be encouraged to develop water quality criteria and
standards for wetlands and other water bodies that impact ground and source water
quality.
Impoundments
Findings and Recommendations
~~~ Historically impoundments have been jurisdictional because impounding a "Water
of the United States" generally does not change the water body's status as a "Water
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of the United States." The proposed rule does not propose to make any changes to
the impoundment category of "Waters of the United States" as it existed in the
1986 regulations.
~~~ However, the LGAC points out that impoundments are oftentimes created in
uplands without connection to a navigable surface water body. These
impoundments are often used in agricultural practices and should be excluded as
WOTUS.
Recommendations
r* The LGAC recommends that 'impoundments' that are currently proposed in the
2018 rule are jurisdictional WOTUS.
r* The LGAC recommends that an impoundment created in uplands with no
connection to a navigable surface water body should be excluded from
jurisdictional WOTUS.
Ditches
Findings and Recommendations
~~~ For local, state and tribal governments, the regulation of ditches as a WOTUS was
the most controversial aspect of the 2015 CWA rule. This has been particularly
problematic for the agricultural sector and farmers, ranchers, irrigation districts,
municipalities and county government, and water supply and stormwater
management agencies. Therefore, the LGAC is providing our detailed input on this
aspect of the proposed rule.
~~~ The proposed 2018 rule provides additional clarity and predictability regarding the
regulation of ditches such as artificial features and proposes to exclude all other
ditches from that definition. The proposed rule addresses whether ditches are point
sources or "Waters of the United States" and provides clear categories for
regulators and the regulated community on the exclusion of ditches.
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~~~ The proposed rule defines ditches as "artificial channels used to convey water" For
example, such features may be designed to convey irrigation water, to drain
agricultural lands, conveying runoff from roads, or for use in interstate or foreign
commerce, such as the Erie Canal and the Great Lakes Waterway.
~~~ Ditches remain "point sources" under the CWA, 33 U.S.C. 1362(14). The proposed
rule language limits ditches as "Waters of the United States" if they "(1) satisfy any
of the conditions identified in paragraph (a)(1) of this proposed rule; (2) are ditches
constructed in a tributary as defined in paragraph (c)(ll) of the proposal as long as
those ditches also satisfy the conditions of the tributary definition; or (3) are ditches
constructed in an adjacent wetland as defined in paragraph (c)(1) of the proposal as
long as those ditches also satisfy the conditions of the tributary definition."
~~~ All other ditches are excluded from the definition of "Waters of the United States."
However, they could still be regulated by States and Tribes and could be subject to
CWA permitting if they meet the definition of "point source" in CWA section
502(14).
~~~ When Congress enacted the Clean Water Act 1972 amendments, ditches and
related artificial features as "point sources," from which pollutants are or may be
discharged." 11 The purpose was to protect the quality of navigable waters by
regulating the discharge of pollutants from conveyances like pipes, ditches,
channels, tunnels and similar features into "Waters of the United States."
~~~ The proposed rule intends to clarify what is a 'navigable water' and 'point sources'
that can discharge pollutants into those waters, as established by Congress in 1972.
See, e.g., Rapanos, 547 U.S. at 735-36 (Scalia, J., concurring) For example, irrigation
ditches, which typically are constructed in upland and infrequently connect to a
"Water of the United States" have been exempted for both the construction and
maintenance of such facilities.12 The proposed 2018 rule attempts to determine
whether a ditch may be a 'Water of the United States' or a point source, but not
both.
~~~ The proposed 2018 rule does include ditches that are constructed in a waterbody
that meets the proposed definition of "tributary". And ditches constructed in upland
11	33 U.S.C. 1362(16).
12	33 U.S.C. 1344(f)(1)(C); see also 33 U.S.C. 1362(14) -excluding agricultural stormwater discharges and
irrigation /return flows from the definition of point source.
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are not "Waters of the United States". The proposed rule does include ditches as
"Waters of the United States" if they were constructed in a wetland that meets this
proposed definition of "adjacent wetland."
~~~ Ditches that used to drain surface and shallow subsurface water from cropland
and/or conveying irrigation water to and from fields and managing surface water
runoff from lands and roads following precipitation events—all are activities that
rely on ditches. These ditches are to be covered by the primary authority of States
and Tribes over land and water resources within their purview.
~~~ The LGAC has heard from intergovernmental stakeholders and amongst LGAC
Members that there needs to be additional guidance on the ditch exclusion.
Recommendations
>	The LGAC recommends that EPA adopt the proposed rule definition of ditches as
"artificial channels used to convey water". The proposed rule provides
additional clarity and predictability regarding the regulation of ditches such as
artificial features and proposes to exclude all other ditches from that definition.
>	The LGAC recommends using the proposed rule language as written which limits
ditches as "Waters of the United States" if they: "(1) satisfy any of the conditions
identified in paragraph (a)(1) of this proposed rule; (2) are ditches constructed
in a tributary as defined in paragraph (c)(ll) of the proposal as long as those
ditches also satisfy the conditions of the tributary definition; or (3) are ditches
constructed in an adjacent wetland as defined in paragraph (c)(1) of the
proposal as long as those ditches also satisfy the conditions of the tributary
definition."
>	The LGAC recommends as proposed in the rule language for ditches used to
drain surface and shallow subsurface water from cropland and/or conveying
irrigation water to and from fields and managing surface water runoff from
lands and roads following precipitation events to be covered primarily the
authority of States and Tribes over land and water resources within their
purview.
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>	The LGAC recommends that all roadside ditches be excluded for public safety
reasons.
>	The LGAC recommends that further guidance is needed on ditches. The LGAC
recommends that an Interagency Taskforce be established to address technical issues
regarding ditches such as: the extent of regulation of ditches; whether ditch use should
be considered and criteria for such; mapping tools that can be used for jurisdictional
determinations; information required by the landowner that should be required for
ditches; and maintenance activities exempt from regulation. The Interagency Taskforce
should look at the definition of intermittent flow for ditches as a possible for criteria for
ditches.
Lakes and Ponds
Findings and Recommendations
~~~ The proposed lakes and ponds category of WOTUS replaces the 2015 rule that
depends on a case-specific "significant nexus" analyses. The definition of 'lakes and
ponds' focuses on contribution of flow to and connection with traditional navigable
waters 13.
~~~ Three separate categories of waters are included for certain lakes and ponds: 1)
traditional navigable waters (stated in paragraph (a)(1) and (a)(4)); (2) contribute
perennial or intermittent flow; and (3) flooded by water in a typical year and also
receives flood waters from a navigable water overtopping in a typical year.
~~~ Lakes and ponds that contribute flow to traditional navigable waters through
ephemeral flow would be excluded 14".
~~~ Ephemeral lakes and arroyos are not jurisdictional under this proposed rule. Those
features are considered water resources of the States and Tribes.
13	Consistent with SWANCC, 531 U.S. at 168 n.3.
14	Informed by Rapanos wherein the plurality rejected the Federal government's hydrologic connection
theory in deciding that the phrase "the waters of the United States
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Recommendations
>	The LGAC recommends adoption of the proposed rule language for the
category of "lakes and ponds" category of WOTUS which would replace the
2015 rule that depends on a case-specific "significant nexus" analyses. The
definition of 'lakes and ponds' focuses on contribution of flow to and
connection with traditional navigable waters.
>	The LGAC recommends adoption of the proposed rule language that using
the three categories of waters which are included for certain lakes and
ponds: 1) traditional navigable waters (stated in paragraph (a)(1) and (a)(4));
(2) contribute perennial or intermittent flow; and (3) flooded by water in a
typical year and also receives flood waters from a navigable water
overtopping in a typical year.
>	The LGAC recommends adopting rule language as proposed that lakes and
ponds that contribute flow to traditional navigable waters through
ephemeral flow would be excluded 15".
>	The LGAC recommends that lakes and ponds that contribute source water
would be considered WOTUS.
Wetlands
Findings and Recommendations
~~~ Wetlands regulated by WOTUS have been particularly problematic for local, state
and tribal government in the 2015 rule. For example, it did not provide adequate
clarity on what wetlands which were proposed to be regulated.
~~~ The 2018 proposed rule provides additional clarify and reduces the confusion by
stating that wetlands with a direct hydrologic surface connection occurs as a result
15 Informed by Rapanos wherein the plurality rejected the Federal government's hydrologic connection
theory in deciding that the phrase "the waters of the United States
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of inundation from a jurisdictional water to a wetland or via perennial or
intermittent flow between a wetland and a jurisdictional water are WOTUS.
~~~ The longstanding regulatory definition of "wetlands" continues: "those areas that
are inundated or saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas." The
presence and boundaries of wetlands are determined based upon an area satisfying
all three of the definition's criteria (i.e., hydrology, hydrophytic vegetation, and
hydric soils) under normal circumstances."
~~~ The 2018 proposed rule includes all adjacent wetlands to: Traditional navigable
waters, including the territorial seas; tributaries, jurisdictional ditches; jurisdictional
lakes and ponds; and impoundments.
~~~ The 2018 proposed rule defines "adjacent wetlands" to mean wetlands that abut or
have a direct hydrologic surface connection to other "Waters of the United States"
in a typical year. "Abut" is defined as a wetland touches a water of the United
States at either a point or side. A "direct hydrologic surface connection" is defined
as "a result of inundation from a jurisdictional water to a wetland or via perennial
or intermittent flow between a wetland and a jurisdictional water."
~~~ The proposed rule excludes those "wetlands that are physically separated from
jurisdictional waters by upland or by dikes, barriers, or similar structures and also
lack a direct hydrologic surface connection to jurisdictional waters.
~~~ "Upland" was a term identified in the LGAC 2014 Report that needed definition.16
The 2018 rule defines it as "any land area above the ordinary high-water mark or
high tide line that does not satisfy all three wetland delineation factors (i.e.,
hydrology, hydrophytic vegetation, and hydric soils) under normal circumstances, as
described in the Corps' 1987 Wetland Delineation Manual. Features that were once
wetlands but have been naturally transformed or lawfully converted to upland (e.g.,
in compliance with a section 404 permit) would be considered upland." A "typical
year" is also defined as "the normal range of precipitation over a rolling 30-year
period for a particular geographic area." The existing Corps definitions for "ordinary
high water mark" and "high tide line" from 33 CFR 328.3, is being used also.
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~~~ The definition of "adjacent wetlands" is based on the core principles and concepts
set forth in the three major Supreme Court cases addressing the scope of the
phrase "the Waters of the United States," and establishes a "clear, predictable
regulatory framework" that can be efficiently implemented in the field.
~~~ The wetlands proposed for exclusion from WOTUS are substantiated in key Supreme
Court decisions.17. While the Court in Riverside Bayview identified this inquiry as a
task for the Corps and deferred to the Corps' judgment under Chevron principles,
the Supreme Court has subsequently recognized outer bounds for the scope of
"Waters of the United States."
~~~ Furthermore, the proposed definitions in the 2018 rule would end the current
practice of conducting case-specific for significant nexus evaluations for non-
abutting wetlands by determining that adjacent wetlands are considered WOTUS.
~~~ The LGAC acknowledges that there are some wetlands that are important for
mitigating floods, improving surface water and source water quality, provides
habitat and are important to communities. Therefore, these wetlands should be
considered as "significant nexus" and state and tribal criteria should be used to
determine whether they should be included in WOTUS.
Recommendations
r* The LGAC recommends that the EPA adopt this approach to define wetlands
and satisfies this proposed definition of a "Water of the United States" but
that a significant nexus analysis using state and tribal criteria should be
included in rule language and the criteria be established in implementing
guidance.
r* The LGAC recommends that to satisfy the definition of 'wetland' that all
three wetland delineation criteria (i.e., hydrology, hydrophytic vegetation,
and hydric soils) would provide additional clarity to the definition.
17 Riverside Bayview: "474 U.S. at 132; SWANCC, 531 U.S. at 172; The plurality opinion in Rapanos, 531
U.S. at 742
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r* The LGAC recommends to not use a distance limit to establish the
boundaries of adjacency.
r* The LGAC urges that the EPA reconsider whether an exclusion for all
wetlands that are physically separated by dikes, barriers, or water control
structures as this could promote the destruction of wetlands by prior
conversion before a permit.
r* The LGAC support tool development that may be helpful in implementation
of the proposed adjacent wetlands category.
>	The LGAC recommends that an Interagency Taskforce be established to develop
metrics to identify when " connectivity" or what constitutes a significant degree of
connectivity, which should be avoided if at all possible. The Science
Advisory Board's Connectivity Report could provide helpful thresholds for
determining a wetland.18
>	The LGAC recommends that an Interagency Taskforce should also determine which
isolated wetlands should be considered important to include as jurisdictional (such
as Carolina bays, pocosins and other unique wetland features).
Waters and Features That Are Not Waters of the United States
Findings and Recommendations
~~~ There are eleven (11) exclusions from the definition of "Waters of the United
States." The proposed rule would exclude:
o groundwater, including groundwater drained through subsurface drainage
systems;
o ephemeral surface features and diffuse stormwater run-off such as
directional sheet flow over upland;
o all ditches, except those ditches identified in paragraph (a)(3) of the
proposed rule;
U.S. EPA. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence
(External Review Draft). U.S. Environmental Protection Agency, Washington, DC, EPA/600/R-11/098B, 2013.
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o prior converted cropland (since 1993);
o artificially irrigated areas, including fields flooded for rice or cranberry
growing (that would revert to upland should application of irrigation water
to that area cease);
o artificial lakes and ponds constructed in upland (water storage reservoirs,
farm and stock watering ponds, settling basins, and log cleaning ponds);
o 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);
o stormwater control features excavated or constructed in upland to convey,
treat, infiltrate, or store stormwater run-off;
o wastewater recycling structures constructed in upland, such as detention,
retention and infiltration basins and ponds, and groundwater recharge
basins. (Note: Waste treatment systems have been excluded from this
definition since 1979, and they would continue to be excluded under this
proposal) A waste treatment system is defined for the first time to include
all components, including lagoons and treatment ponds (such as settling or
cooling ponds), designed to convey or retain, concentrate, settle, reduce, or
remove pollutants, either actively or passively, from wastewater prior to
discharge (or eliminating any such discharge). A waste treatment system
requires a section 402 permit if it discharges into a water of the United
States.
~~~ The LGAC finds that the proposed exclusions generally reflect current
practice and provides greater clarity over which waters are and are not
regulated under the CWA.
~~~ Groundwater is excluded from "Waters of the United States". In proposed
paragraph (b)(3), the agencies would exclude ephemeral features and diffuse
stormwater run-off, including directional sheet flow over upland. Such
features would not be jurisdictional under the proposed terms of paragraph (a) or
the proposed definitions in paragraph (c). They would be specifically excluded
in the proposed rule to avoid confusion. This proposed exclusion would
further highlight and clarify that such features are not tributaries under the
proposed rule.
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~ The LGAC finds the proposed ditch exclusion a clear exemption for the
regulated public and much more straightforward to implement than current
practice.
~~~ The LGAC generally supports the exclusion of prior converted cropland. However,
there is a need for further clarifications as it is currently identified because it
relies on the use of 1985 as the year that farmland must have been used for
agricultural purposes. This creates a clear barrier to entry. All agricultural land
should be excluded because these lands are managed to provide food, fiber, and
other necessary products for survival - regardless of whether the agricultural
operation was established before or after 1985. There is a need for further
clarification that could be addressed by an Interagency Taskforce.
~~~ Prior converted cropland continues to be excluded from WOTUS. However,
there is added a condition that if the cropland is abandoned and the land
has reverted to wetlands, and not used in support of, agricultural purposes at
least once in the immediately preceding five years than it may be included as a
WOTUS19. Note: Agricultural purposes are defined as "land use that makes the
production of an agricultural product possible, including but not limited to grazing
and haying." It is clarified that cropland that is left idle or fallow for conservation
or
agricultural purposes for any period of time remains in agricultural use, and
therefore maintains the prior converted cropland exclusion. This is the first-time
rule language clarifies the meaning of "prior converted cropland," the application
of the exclusion, and a recapture mechanism based on abandonment and
reversion to wetlands.
~~~ The abandonment principle that the agencies had been implementing since the
1993 rulemaking was not clear. The LGAC believes this is another uncertainty
further clarified in the proposed rule and provides regulatory certainty.
~~~ The LGAC likes that the upland exclusion is included so that an upland ditch that
borders a jurisdictional water would be exempt and remain excluded if it develops
wetland characteristics.
19 Consistent with the 1993 preamble. 58 FR 45033, and the five-year timeframe regarding validity of a
jurisdictional determination. See 2005 Corps Regulatory Guidance Letter (RGL) 05-02
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~~~ The LGAC affirms the listing of non-jurisdictional ponds as exclusions even if it
serves another incidental beneficial use. This exclusion also affirms that an applicant
that receives a permit to construct a waste treatment system it is relinquished from
jurisdiction as long it is used for the permitted purpose (consistent with
longstanding practice).
~~~ Groundwater exclusion is cited in the proposed rule which also applies to
subsurface systems, like tile drains used in agriculture. However, the exclusion
would not apply to surface expressions of groundwater, such as where groundwater
emerges on the surface and becomes baseflow in intermittent or perennial streams.
~~~ The proposed rule would exclude ephemeral features and diffuse stormwater run-
off. This exclusion would include ephemeral flows, swales, and erosional features,
including gullies and rills, as non-jurisdictional features. Tributaries can be
distinguished from these excluded features by the flow regime proposed in the
definition of "tributary." Tributaries would have intermittent or perennial flow while
these proposed excluded features would have ephemeral flow. Some streams are
colloquially called "gullies" because they exhibit the characteristics of a tributary.
However, waters that meet the definition of "tributary" would not be excluded as
ephemeral features.
~~~ The LGAC finds that there is further clarification on 'croplands' that have been
abandoned and wetlands established that site would no longer be valid for
purposes of the CWA. Current practice has been to defer to certifications of prior
converted cropland made by the USDA for agricultural use. This proposed rule
would clarify that the Corps would only apply abandonment principles consistent
with the 1993 preamble and would no longer apply the change in use analysis. The
Corps will determine if the land has been "abandoned." If the Corps determines
that the land is abandoned, then it must evaluate the current condition of the land
to determine whether wetlands conditions have returned. If wetlands are currently
present on the property, the Corps must determine whether the wetlands are
waters of the United States, consistent with this proposed rule.
~~~ The USDA is responsible for making the determination as to whether land is 'prior
converted cropland.' The EPA and the Corps are responsible for enforcing the prior
converted cropland exclusion for CWA purposes and identify whether lands that are
no longer prior converted cropland may be "Waters of the United States."
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~~~ There is clarification on artificial irrigation exclusion which would apply only to the
specific land directly irrigated, including fields flooded for rice or cranberry growing,
(which would revert to upland should artificial irrigation cease). Historically, the
agencies have taken the position that ponds for rice growing are generally not
considered waters of the United States, as reflected in the 1986 preamble and the
2015 Rule. See 51 FR 41217.
~~~ For the artificial lakes or ponds, farm ponds, log cleaning ponds, and cooling ponds
are added to the list of excluded ponds. However, in some circumstances, there may
be a point source subject to Section 401 of the CWA.
~~~ Water-filled depressions created in upland incidental to mining activity are not
considered to be "Waters of the United States".
~~~ Stormwater control features "excavated or constructed in upland to convey, treat,
infiltrate or store stormwater run-off" are excluded. Wastewater recycling
structures constructed in uplands are also excluded. Groundwater recharge basins
and infiltration ponds built for wastewater recycling are also excluded. The waste
treatment exclusion is still maintained as a longstanding practice. If the treatment
system is abandoned, it would not continue to qualify for the exclusion. Note: Some
flows from these excluded waters may function as "point sources" under CWA
section 502(14), so that discharges of pollutants to navigable waters through these
features would be subject to other parts of the CWA (e.g., CWA section 402).
Recommendations
>	The LGAC recommends adoption of the proposed eleven (11) exclusions
from the definition of "waters of the United States." However, the LGAC
recommends that "interstate waters" should be added back as a category of
WOTUS.
>	The LGAC recommends as proposed in the rule that groundwater be
excluded from "Waters of the United States".
>	The LGAC recommends that proposed rule language in paragraph (b)(3), be
adopted to exclude such as ephemeral features and diffuse stormwater run-
off.
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> The LGAC recommends adoption of the exemption for prior converted
cropland be excluded from WOTUS.
>	The LGAC recommends that an Interagency Taskforce address the issue of
abandoned cropland issue to determine conditions where these waters
would be WOTUS.
>	The LGAC recommends that the USDA be the agency responsible for making
the determination as to whether land is 'prior converted cropland.'
>	The LGAC recommends that the language on artificial irrigation exclusion
would apply only to the specific land directly irrigated, including fields
flooded for rice or cranberry growing, (which would revert to upland should
artificial irrigation cease as reflected in the 1986 preamble and the 2015
Rule. See 51 FR 41217).
>	The LGAC recommends that the proposed rule language that exempts
artificial lakes or ponds, farm ponds, log cleaning ponds, cooling ponds,
water-filled depressions, and ponds incidental to mining activity.
>	The LGAC recommends that proposed rule language excluding the following
be adopted: stormwater control features "excavated or constructed in
upland to convey, treat, infiltrate or store stormwater run-off"; wastewater
recycling structures constructed in uplands; groundwater recharge basins
and infiltration ponds built for wastewater recycling.
Placement of the Definition of Waters of the United States in the Code of Federal
Regulations
Finding and Recommendation
~~~ The definition of "Waters of the United States" is proposed to be placed in the Code
of Federal Regulations, the agencies propose to locate the proposed definition of
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"Waters of the United States" at 33 CFR 328.3, 40 CFR 110.1,112.2, 116.3, 117.1,
122.2, 230.3, 232.2, 300.5, 401.11, and Appendix E to 40 CFR part 300.
Recommendation
> The LGAC recommends that the definition of 'Waters of the U.S.' be
applicable throughout the Federal Regulations 33 CFR 328.3, 40 CFR 110.1,
112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 401.11, and Appendix E to
40 CFR part 300.
State, Tribal and Federal Agency Datasets of "Waters of the United States"
Finding and Recommendations
~~~ State and tribal involvement in jurisdictional determinations are very important.
Several States and Tribes suggested the agencies increase the role of States and
Tribes in identifying those waters that are "Waters of the United States."
Stakeholders also indicated that maps could increase certainty and transparency
regarding the data and methods used to determine which waters are jurisdictional
and which waters are not.
~~~ Datasets that are available to the public in real time such as available on a phone
app or download from the internet could be valuable in aiding jurisdictional
determinations.
Recommendations
>	The LGAC recommends that state, tribal and local government resources and
data be used in jurisdictional determinations.
>	The LGAC recommends that a phone app be established that can be used by
all parties in the jurisdictional determination process.
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> The LGAC recommends that an Interagency Taskforce be established to determine
and update datasets for jurisdictional determinations.
C. Charge Question 3: What should the agencies consider in communicating
the final rule to state, local and tribal governments to help them fully
understand these regulatory changes and how to implement them
efficiently and most cost-effectively?
Findings and Recommendations
~~~ The agencies have been effective in consultation with state, tribal and local governments
during the development of step 2 of the final rule. The LGAC appreciates the federalism
approach that the agencies have taken and believe it will result in a more effective rule.
Ultimately, it is the regulated community that must know and understand the regulations
for the rule to be effective.
~~~ State, Tribal and local governments are the best conduits for passing information on to the
regulated community since many waters may not be CWA jurisdictional any more. Thus,
the final rollout should achieve Administrator Wheeler's stated goal of helping the
regulated community "understand whether or not a project on their property will require a
federal permit without having to hire outside professionals."
~~~ Executive Order 13132 and Executive Order 13175 requires Federalism consultation and
consultation with states, tribes and local government officials, or their representative
national organizations, which is an important step in the process prior to proposing
regulations that may have implications for State, Tribal and local governments. State and
local governments were consulted at the outset of rule development starting on April 19,
2017. The agencies held nineteen Federalism meetings between April 19 and June 16,
2017; Seventeen intergovernmental associations, including nine of the ten organizations
identified in EPA's 2008 E.O. 13132; The LGAC held meetings and met 10 times during this
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period to address the charge given to its members by the EPA Administrator on a revised
rule and completed a report addressing the questions outlined in their charge.20
Recommendations
>	The agencies should stress in communication materials that rulemaking is based on
the law and that it may be informed by science, but science is not the only basis for
the rule.
>	The final 2018 WOTUS rule communication materials should articulate that the goal
of the final 2018 rule is to have a rule that simplifies the permitting process so that
permittees will have a simplified process to understand jurisdictional calls and will
not have to make expenditures for hiring outside professionals for that service.
>	Transfer of federal authority to state or tribal authority on some waters, poses
more uncertainty. Prediction of required permitting becomes less reliable for the
public and private sector with both federal, state and tribal rule-making. Clarity for
all becomes muddled. What will the costs be? What could be offsets? Who
provides technical assistance? This needs to be clearly communicated at all levels
of government with focus on efficiency and cost-effectiveness.
>	EPA should provide as part of the communication strategy to have ongoing training
sessions for state, tribal and local government once the final 2018 rule is in place.
>	The LGAC encourages EPA to consider establishing a grace period to
approach CWA enforcement which should be included in the communication
strategy. This will give opportunity for the regulated public to become
educated on the new provisions of the WOTUS rule.
>	This rule will give agencies the opportunity for training and education on
new rule requirements, and at the same time prevent a backlash of the
20 The LGAC July 14, 2017 Final Report: https://www.epa.qov/sites/production/files/2017-
07/documents/laac-final-wotusreport-iuly2017.pdf.
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regulated public on significant issues. The LGAC urges that EPA consider a
new paradigm in enforcement incorporating the concepts of integrated
planning including all aspects of the CWA and SDWA.
> The LGAC recommends that state, tribal and local governments are
important in communicating the WOTUS rule changes. Furthermore, the EPA
and the Corps should develop template communication materials for local
governments to use in communicating WOTUS rule changes.
V. Conclusion
The LGAC appreciates the evolution of the proposed rule to achieve greater clarity. As a
result, regional differences have emerged as the next challenge. The LGAC is
recommending a collaborative, shared governance model that can achieve regional
flexibility within a reasonable and clear regulatory framework.
The LGAC recognizes that it is a delicate balance of federal, state, tribal and local authority
needed to ensure our nation's water resources are clean, safe and reliable. The LGAC
thanks EPA for the opportunity to provide our recommendations regarding this important
issue.
Disclaimer: This Report reflects what was conveyed during the course of the LGAC meetings. The Committee is not
responsible for any potential inaccuracies that may appear in the Report as a result of information conveyed. Moreover, the
Committee advises that additional information sources be consulted in cases where any concern may exist about statistics or
any other information.
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Appendix
Local Government Advisory Committee
Members
Bob Dixson, Chairman
(Former) Mayor
Greensburg KS
Ms. Susan Lessard
Town Manager
Town of Bucksport, Maine
Bucksport, ME
Honorable Ron Poltak
Chairman
Auburn Planning Commission
City of Auburn, New Hampshire
Auburn, NH
Honorable Jose C. Aponte
Dalmau
Mayor
City of Caroli'na
Caroli'na, Puerto Rico
Mr. Michael T. Scuse
Secretary
Delaware Department of
Agriculture
Dover, Delaware
Mr. Jeff Witte, Vice-Chair
Secretary of Agriculture
State of New Mexico
Las Cruces, NM
Mr. William Youngblood
Executive Director
McCandless Township Sanitary
Authority
Pittsburgh, PA
Mr. Jai Templeton
(Former) Commissioner
Tennessee Department of
Agriculture
Nashville, Tennessee
Mr. Brian Fulton
County Administrator
Jackson County, Mississippi
Pascagoula, MS
Honorable Carvei Lewis
Chairman
Georgetown-Quitman
Consolidated County Government
Georgetown, Georgia
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Honorable Kitty Barnes
Commissioner
Catawba County, NC
Terrell, NC
Ms. Susan Hann
Director, Planning
Brevard County School Board
Malabar, FL
Honorable Elizabeth Kautz
Mayor
City of Burnsville, Minnesota
Burnsviile, MN
Honorable Victoria Reinhardt
Commissioner
Ramsey County, Minnesota
Saint Paul, MN
Ms. Teri Goodmann
Assistant City Manager
City of Dubuque, Iowa
Dubuque, IA
Honorable Karen Freeman-
Wilson
Mayor
City of Gary, Indiana
Gary, Indiana
Honorable Ben Kimbro
Council Member
City of Tulsa, Oklahoma
Tulsa, OK
Honorable Jeff Branick
County Judge
Jefferson County, Texas
Beaumont, Texas
Honorable Tom Sloan
(Former) State Representative
State of Kansas
Lawrence, KS
Honorable LibbySzabo
Commissioner
Jefferson County, Colorado
Golden, CO
Honorable Mark Fox
Chairman
Mandan, Hidatsa, and Ankara
(MHA) Nation
New Town, ND
Dr. Hector Gonzalez, M.D.
Director of Health
City of Laredo, TX
Laredo, TX
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Honorable Andy Beerman
Mayor
City of Park City, Utah
Park City, UT
Mr. Norm Archibald
Assistant Secretary
Western Texas Municipal Water
Authority Board of Directors
Abilene, TX
Honorable Carmen Ramirez
Mayor Pro Tern
City of Oxnard, California
Oxnard, CA
Dr. Robert Cope, DVM
Planning Commission
City of Salmon, Idaho
Salmon, ID
Honorable Shawn Yanity
Chairman
Stillaguamish Tribe
Arlington, WA

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Small Community Advisory Subcommittee (SCAS)
Members
Dr. Robert Cope, DVM, Chair
Planning Commissioner
City of Salmon, Idaho
Salmon, ID
Ms. Susan Lessard
Town Manager
Town of Bucksport, Maine
Bucksport, ME
Mr. Rodney Bartlett
Town Administrator
Town of Peterborough
Peterborough, NH
Honorable Jose C. Aponte Dalmau
Mayor
City of Caroli'na, Puerto Rico
Caroli'na, PR
Mr. William Youngblood
Executive Director
McCandless Township Sanitary
Authority
Pittsburgh, PA
Honorable Carvel Lewis
Chairman
Georgetown-Quitman Consolidated County
Government
Georgetown, GA
Mr. Brian Fulton, Vice-Chair
County Administrator
Jackson County, Mississippi
Pascagoula, MS
Honorable Tom Willlsey
Trustee
Ross Township, OH
Hamilton, OH
Mr. Jeff Witte
Secretary of Agriculture
State of New Mexico
Las Cruces, NM
Honorable Dennis Scott
Commissioner
Calcasieu Parrish
Lake Charles, LA
Honorable Bob Dixson
(Former) Mayor
City of Greensburg, Kansas
Greensburg, KS
Honorable LibbySzabo
Commissioner
Jefferson County, CO
Golden, CO
Honorable Andy Beerman
Mayor
City of Park City, Utah
Park City, UT

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Honorable Shawn Yanity
Chairman
Stillaguarnish Tribe
Arlington, WA
Mr. Brian Holter
Brownfields Coordinator
Klawock Tribe
Klawock, AK

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