(April 23, 2019) - NACWA submitted comments on April 15 regarding the US Environmental Protection Agency’s (EPA’s) and the US Army Corps of Engineers’ (USACE’s) proposed new Waters of the United States (WOTUS) definition.
NACWA urged both agencies to maintain the existing exclusions for waste treatment systems, stormwater control features, wastewater recycling structures, and groundwater, as these exclusions have traditionally not been considered jurisdictional WOTUS.
NACWA had concerns over the proposal’s modifying language in some of the exclusions (e.g., “upland” or “wholly upland”). In particular, the Association commented that EPA and USACE should maintain the exclusions regardless of construction location simply because the Clean Water Act (CWA) already regulates these discharges, and regulating the feature itself provides no additional water quality protection.
The proposed revised definition also requested comment on whether municipal separate storm sewer systems (MS4s) should be excluded in their entirety, or only partially, under the stormwater control feature exemption. NACWA urged both Agencies to exclude all MS4s, in their entirety, from WOTUS.
NACWA also commented that EPA and USACE must consider source water protection, as this proposed revised definition takes a narrower approach to upstream tributaries than the 2015 Clean Water Rule. NACWA is concerned that first-order streams that feed into larger tributaries or waters may contain higher concentrations of pollutants—e.g., nutrients, pathogens, total dissolved solids—upstream of drinking water intakes, and public wastewater and stormwater utilities. It is important that EPA and USACE account for the increased treatment costs, and potentially more stringent CWA permit limits for public clean water utilities, that could correspond to the more limited definition.
Members with any questions about NACWA’s WOTUS comments can contact Emily Remmel, NACWA’s Director of Regulatory Affairs.