TENNESSEE WI LDLl FE RESOURCES AGENCY ELL1NGTON AGRICULTURAL CENTER P. 0.BOX 40747 NASHVILLE, TENNESSEE 37204 February 26,2003 Water Docket U.S. Environmental Protection Agency Mailcode 4 101 T 1200 Pennsylvania Ave., NW Washington, DC 20460 Attention: Docket ID No. OW-2002-0050 03-03-03 A10:43 JN Re: Advanced Notice of Proposed Rulemalung U.S. Environmental Protection Agency US. Army Corps of Engineers Definition of “Water of the United States” Attention: U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (COE). The Tennessee Wildlife Resources Agency provides the following comments and recommendations regarding the EPNCOE proposal to change the accepted and customary definition of “Waters of the United States” to remove Federal Clean Water Act (CWA) protection for isolated wetlands and non-navigable streams. Removal of CWA protection for isolated wetlands and non-navigable streams would drastically change more than three decades of progress toward restoring and protecting waters of the United States. This would be a significant retreat from the goals of the CWA and should be addressed through preparation of a comprehensive evaluation of the consequences. 0 Consideration should be given to amending the CWA to insure the definition of “Waters of the United States” is consistent with the customary and accepted usage of the term as The State of Tennessee AN EQUAL OPPORTUNITY EMPLOYER ,­ established since passage of the CWA. e Removal of federal CWS protection for isolated wetlands effectively abandons the long- standing national policy of “no overall net loss” of wetlands. The national goal of conservation and protection of wetlands resources is based on appreciation for the benefits derived, including water quality and quantity, flood control, waterfowl, and sustained biological diversity. e There is no database wherein the total surface acres of isolated wetlands in Tennessee are identified. Tennessee currently has approximately 787,000 acres of wetlands resources (based on a 1:100,000 scale). The majority of these wetlands are not adjacent to navigable streams. Tennessee estimates the majority of its naturally occurring wetlands were destroyed prior to the passage of the CWA. e The Tennessee Wetlands Conservation Strategy, Third Edition, 1998, as prepared by the Governor’s Interagency Wetlands Committee and Technical Work Group, is included for your consideration. Removal of CWA protection for isolated wetlands would seriously undermine state wetlands conservation initiatives. e Based on a conservative coverage scale of 1:500,000,Tennessee has approximately 22,405 miles of streams (Figure l), of which 12,785 stream miles (Figure 2) are non­ navigable (see List A). e The majority of Tennessee’s trout streams are non-navigable (see List B). e The vast majority of Tennessee’s aquatic biological diversity, including state and federally threatened and endangered species, occurs in non-navigable streams as traditionally protected by the CWA (See List C). e Absent the framework of protection afforded isolated wetlands and non-navigable streams by the CWA, it will become increasingly difficult for states to protect and :j P conserve these aquatic resources while competing for economic development. The impact of this change upon the National Pollutant Discharge Elimination System (NPDES) should be thoroughly evaluated. Tennessee is recognized as having a diversity of fish and aquatic life unequalled in North America. Protection and conservation of clean water and aquatic resources is essential. We recognize that the U.S. Supreme Court Decision in Solid Waste Agency of Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), opens the door for EPA and COE to remove isolated wetlands and non-navigable streams from protection under the Federal Clean Water Act. It is clear, however, that such action would be taken by EPA, COE, and the administration only after having made a considered decision to abandon the spirit and intent of the CWA. We look forward to working with our partners in conservation to prepare a comprehensive analysis of the impact of redefining “Waters of the United States”. At a minimum, we advocate that isolated wetlands and non-navigable streams be afforded protection comparable to that traditionally afforded under the Federal Clean Water Act. If we may be of further assistance, please contact TWRA at (615) 781-6643. Sincerely, Gary T. Myers Executive Director ADM:bg Item 1. Aquatic Species and River Length of Non-Navigable Waters in Tennessee A list of non-navigable streams and a list of aquatic species sampled in the non-navigable streams were produced using TWRA’s Geographic Information System (GIS) Data and the Tennessee Aquatic Database System (TADS). A 1:500,000-scale stream cover of navigable waters was created from the List of Navigable Waters of the United States from the United States Army Corp of Engineers (USACE) from the Nashville and Memphis District. River segments designated from the List of Navigable Waters were selected from TWRA’s GIS 1:500,000 scale stream cover. Selecting river sections fi-om the TWRA stream cover that did not occur in the navigable waters created a non-navigable rivers CIS cover. The entire river coverage equaled 22,405 miles and the non-navigable river length equaled 12,787 miles. Fifty-seven percent of the rivers in Tennessee are considered non-navigable water. Because of the coarse scale of the stream coverage this is a conservative estimate of non-navigable waters. Overlaying the non-navigable streams cover with the TADS produced a list of aquatic species sampled in non-navigable streams. TADS is a geographically referenced database of fish inventory containing over 16,400 records of fish occurrences fi-om over 1400 sample sites across the state. Fish data is referenced by river reach and a point coverage generated by latitude and longitude. 196 sites were sampled in navigable waters and 1218 sites in non-navigable waters. Of the 230 fish species that were sampled fi-om the TADS sample sites, 74 fish species were sampled only in non-navigable waters. Trout are not included in the TADS database but have been sampled by TWRA fish biologists in 121 non-navigable streams. Of the 528 invertebrates sampled, 270 invertebrate species were sampled only in non-navigable waters. List A Non-Navigable Rivers in Tennessee ABRAMS CREEK BIG CREEK BRADSHAW CREE. ADAMS BAYOU BIG EAGLE CREEK BRAWLEYS FORK CREEK ADWS CREEK BIG ELK CREEK BREWER CREEK AENON BIG FIERY GIZZARD CREEK BRIAN FORR AGENCY CREEK BIG FOOT BRANCH BRIAR CREEK AGNEW CREEK BIG GOOSE CREEK BRIAR FORK ALEXANDER CREEK BIG HUNGRY CREEK BRIDGE CREEK ALLJiX CREEK BIG HURRICANE CREEK BRIER CREEK ANDERSON CREEK BIG INDIAN CREEK BRIMSTONE CREEK ANTHONY BRANCH BIG LAUREL CREEK BRINKLEY BAYOU ARMS CREEK BIG LIMESTONE CREEK BROAD CAMP CREEK AFSINGTON CREEK BIG LOST CREEK BROWN CREEK ASH SLOUGH BIG MCADOO CREEK BROWNLOW CREEK ASHBURN CREEK BIG MUDDY CREEK CANAL BROWNS CREEK AVERITT CREEK BIG OPOSSUM CREEK BROWNS CREEK LAKE BACON CREEK CANAL BIG PINEY CREEK BRUSH CREEK BAILEY FORK CREEK BIG POSSUM CREEK BRUSHY FORK aARER CREEK BIG RICHLAND CREEK BRUSHY FORK CREEK BALD RIVER BIG ROCK CRZEK BRYONS FORK BALL CREEK BIG RONALDSON SLOUGH BUCWAN CREEK BALLPLAY CREEK BIG SANDY RIm BUC"N0N CREEK BAPTIST BRANCH BIG SEWEE CREEK BUCK CREEK BARNES FORK CANAL BIG SPRING CREEK BUCKEYE CREEK BARNETT BRANCH BIG SPRINGS CREEK BUDDS CREEK BARREN PORK BIG SWAN CREEK BUFFALO COVE CREEK BARRETT CREEK BIG SYCAMORE CREEK BUFFALO CREEK BARTEE BRANCH BIG TRAMMEL CREEK BUFFALO RIVER BARTONS CREEK BIG WAR CREEK BULL RUN CREEK BASSES CaEEK BILLS CREEK BULLET CREEK BASSWOOD CREEK BINGHAM COVE BRANCH BURGER BRANCH BAT CREEK BIRCH BRANCH BURKS BRANCH BATTLE CREEK BIRD CREEK BURNSIDE CREEK BAXTER BOTTOM BIRDSONG CREEK BURNT MILL HOLLOW CREEK BAYOU DU CHIEN BITTER CREEK BURRELL CREEK BEAN BRANCH BLACK ANKLE CREEK BUSH CREEK BEANS CREEK BLACK BOTTOM CREEK BUSHEL BRANCH BEAR BRANCH BLACK CREEK BUTLER CREEK BEAR CREEK BLACK WOLF CREEK BUZZARD CREEK BEAR CREEK CANAL BLACXAMORE CREEK BYRAMS CREEK BEASON CREEK BLACKBURN BRANCH BYRD CREEK BEAVER CREEK BLACKWATER CREEK CAIN CREEK BEAVER DAM CREEK BLEDSOE CREEK CALDWELL CREEK BEE CREEK BLOOD RIVER CALEBS CREEK BEE FORK BLOOMING GROVE CREEK CWJEDONIA CREEK BEECH CREEK BLUE BANK BAYOU CALFKILLER RIVER BEECH FORK BLUE BUCK CREEK CAMP BRANCH BEECH LAKE BLUE CREEK CAMP CREEK BEECH RIVER BLUE SPRING BRANCH CANAL BEELER CREEK BLUE SPRING CREEK CANDIES CREEK BELCHER CREEK BLUE SPRINGS CANE BRANCH BENFORD CREEK BLUE SPRINGS CREEK CANE CREEK BENNETTS CREEK BLUEWATER BRANCH CANEY CREEK BENT CREEK BLUEWATER CREEK CANEY FORK CREEK BETHEL BRANCH BLUNT CREEK CANEY FORK RIVER BETSY WILLIS CREEK BOB0 CREEK CANNON CREEK BIFFLE CREEK BOBS CREEK CAPUCHIN CREEK BIG BARREN CREEK BOILING FORK CREEK CARR CREEK BIG BARTONS CREEK BOND CREEK CARROLL LAKE BIG BEAVER CREEK BONE CAMP CREEK CARSON CREEK BIG BETHANY CREEK BOOMER CREEK CARSON FORK BIG BIGBY CREEK BOON CREEK CARTER CREEK BIG BLACK CREEK BOONES CREEK CARTERS CREEK BIG BLUFF CREEK BOOZY CREEK CARVENGER CREEK BIG BRANCH BOWMAN BRANCH CASPER CREEK BIG BRUSH CREEK BOYDS CREEK CATFISH LAKE BIG CANEY BRANCH BRACKENS LAKE CATHEYS CREEK BRADLFY CREEK CAVE COVE BRANCH CAVE CREEK CAVE SPRINGS CREEK CEDAR CREEK Non-Navigable Rivers in Tennessee GINGER CREEK HOGSKIN CREEK LAKE MCKELLAR GIRL SCOUT CAMP LAKE HOLLAND CREEK LAKE TANS1 GISTS CREEK HOLLIS CREEK LAKELAND LAKE GLADE CREEK HOLLY CREEK LANE BRANCH GLOBE CREEK HOLLY FLAT CREEK LANGHAM BRANCH GOAT CREEK HOLLY FORK CREEK