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Assessment")', at pp. 3 & 4. When flow from the Ponds does occur, the connected wetlands <br />function to remove particulates and provide biologic removal of selenium. Indeed, recent <br />measurements of selenium concentrations at monitoring locations established just below each <br />wetland, beginning in October 2012, show measurable reductions of selenium concentrations <br />compared to selenium concentrations at the outfalls from upstream Ponds. Historically, stream <br />monitoring data collected at sites established along the receiving streams, below the Ponds and <br />associated wetlands, indicate these reaches have been in attainment of acute aquatic life selenium <br />standard for many years. <br />There are sound legal principles that support permit modifications to move the selenium <br />point of compliance below the wetlands which, in summary, are: <br />1) The wetlands located downstream of the Ponds, like the Ponds, serve as part of the <br />waste treatment system. Waste treatment systems are excluded from the Clean Water Act's <br />( "CWA ") definition of "waters of the U.S." Peabody has taken actions, approved by the DRMS, <br />as revisions to its Mine Permit and in its 404 permit authorization by the Corps, to enhance the <br />adjacent wetlands which, with the ponds, provide water quality treatment; and <br />2) The Mine Permit and applicable federal and state mining laws repeatedly emphasize <br />the importance of the protection of surface and groundwater outside of the Mine Permit area. <br />Peabody's request to alter the point of compliance is fully consistent with its Mine Permit and <br />applicable mining laws that protect public health and the environment outside the Mine Permit <br />area. <br />II. PEABODY'S DOWNGRADIENT WETLANDS CONSTITUTE "WASTE <br />TREATMENT SYSTEMS" THAT ARE EXCLUDED FROM COVERAGE <br />UNDER THE CLEAN WATER ACT. <br />The CWA excludes "waste treatment systems" from the definition of "waters of the United <br />States." Specifically, "waste treatment systems, including treatment ponds or lagoons designed to <br />meet the requirements of CWA ... are not waters of the United States." 40 C.F.R. § 122.2. This <br />exemption is similar to language under the Colorado Water Quality Control Act that excludes <br />from regulated "state waters" as waters "in treatment works of disposal systems ... and all water <br />withdrawn for use until use and treatment have been completed." C.R.S. § 25 -8- 104(19). The <br />wetlands downgradient of the Sage Creek Mine Ponds are part of such a treatment system, and, <br />with DRMS's authorization, Peabody has placed straw bales into the wetlands in order to spread <br />water from the Ponds more effectively through the wetlands to improve the filtration and selenium <br />uptake processes. <br />The scope of the waste treatment exemption has been applied by courts and EPA. There <br />are no reported court decisions interpreting the exclusion under the Colorado Water Quality <br />Control Act, although the WQCD recognized that mine waste treatment in a channel was exempt <br />' Seneca Coal Company Water Quality Assessment, Grassy Creek and Sage Creek, as well as various tributaries to <br />Dry Creek, Sage Creek, Fish Creek and Grassy Greek, January 11, 2005. <br />